author: MONTEMURO, Judge:

text:
    466 A.2d 620
    Darrell NORTHCRAFT and Ivan Northcraft, t/a Northcraft Brothers v. EDWARD C. MICHENER ASSOCIATES, INC., t/d/b/a Technical Diversification Services, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1983.
    Filed Sept. 23, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Jack M. Hartman, Harrisburg, for appellant.
    Wayne C. Parsil, Harrisburg, for appellees.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

Plaintiff-appellees, Darrell and Ivan Northcraft, brought an action in trespass for conversion against defendant-appellant, Edward C. Michener Associates, Inc., t/d/b/a Technical Diversification Services (hereinafter TDS). Appellees alleged that the appellant converted, by refusal to deliver upon proper demand, parts and plans of an invention of Darrell Northcraft, alleged to be in the possession of the appellants. The jury found in favor of the Northcrafts and awarded them damages in the amount of Ten Thousand, Five Hundred ($10,500.00) Dollars. The appellant’s post-verdict motions were denied and the present appeal followed.

Appellant raises two issues herein. First, that the trial judge erred in denying the appellant’s post-verdict motions for judgment n.o.v., or for a new trial, because the evidence was insufficient to make out a cause of action for conversion. Second, the appellant contends that the trial court erred in allowing improper evidence regarding damages. Since the plaintiff’s cause of action is premised upon a somewhat novel theory, we believe a full recitation of the pertinent facts is in order.

Darrell Northcraft is a mechanic who operates a garage specializing in automobile repairs. He has also been involved in auto racing, specifically the racing of “modified sport cars.” His experience with racing led him to invent a device called a two speed quick change differential. This differential would allow race drivers to change the gear ratios between the drive shaft and the rear wheels while on the track without making a pit stop. The device increases the car’s efficiency and adaptability to changing track conditions. Northcraft obtained a patent for the device on February 29, 1972. He then set out to have a prototype of the differential constructed.

In pursuit of this goal, Northcraft met with one Wayne Culver, the head of TDS. TDS was the engineering branch of Edward C. Michener Associates, Inc., which is primarily a company which seeks out new consumer products and attempts to market them. Culver agreed, on behalf of TDS, to construct a prototype of the differential at a cost of $4,150.00. Northcraft also turned over to TDS the patent abstract and several parts which might be used or adapted for use in the differential, including a differential housing and a ring gear and pinion. TDS apparently commenced work on the project in August, 1972.

In January, 1973, the appellant sent a bill to Northcraft for work completed on the project. The accompanying letter read, in part: “As you know, we are waiting for the return of new gears from the vendor. As soon as these come in we can quickly assemble the device and you are ready for testing.” Northcraft testified that after reading the letter he “thought that we were almost ready to test the differential ... that we could quickly assemble it, I assumed that most of the parts was [sic] there and he was only waiting for a couple of gears.” (N.T. 16-17).

Subsequently, TDS wrote to Northcraft requesting his approval for the expenditure of additional funds; which approval was granted. In April, 1973, TDS sent a letter to Northcraft stating, in part: “Ed is hard at work on the changes that you asked for.” This letter was in response to a request by Northcraft for certain technical changes in the “spur gears”; i.e., the use of “needle bearings” instead of “brass bushings.” In May, 1973, in a meeting at the offices of TDS, Northcraft was told by Wayne Culver concerning the differential parts that, “[T]hey had not come in, they were in different vendors or manufacturing places.” Northcraft testified that he never saw any plans for, or components of, the differential. However, he did not think this was unusual because TDS had no design or production facilities on the premises.

In February, 1974, TDS instituted legal proceedings to compel the payment of Northcraft’s bill. Northcraft agreed to pay the bill, but wanted to take all parts and drawings that had been completed as of that time and terminate their relationship. Northcraft paid the bill. In all, he paid TDS $6,995.00 for its services. In return, TDS gave to North-craft two drawings and a ring gear and pinion; all of which had been developed by the Philadelphia Gear Corporation. Additionally, they returned all materials which Northcraft had originally submitted.

Northcraft subsequently had the prototype constructed by another engineer at a cost of $11,559.96. This amount included $2,000.00 paid to the engineer, Michael Kahl, for drafting approximately twenty (20) drawings of different components of the differential. Kahl did not make use of the drawings from TDS. Moreover, the ring gear and pinion obtained from TDS, although used in the prototype, were made from unsuitable materials which wore out quickly and had to be replaced.

The appellant presented the testimony of Wayne Culver, who stated that all materials in the possession of TDS were returned to Northcraft, and that he contacted Philadelphia Gear and requested that they do the same.

The appellant also presented as a witness Edward Koons, who was a staff designer, indeed the only staff designer, employed by TDS. Koons testified that he completed three drawings on the Northcraft differential project. One was a drawing of the “spiral bevel gear” and “spiral bevel pinion” which was sent to Philadelphia. Presumably, this drawing was the basis for, and was later supplanted by, the two drawings and components made by Philadelphia Gear, which were later returned to Northcraft.

The second drawing was a rendition of the “spur gear system” which Koons claimed was sent to the Christiana Machine Company. The third was a drawing of the “clutch mechanism.” Koons testified that he also made two preliminary “sketches” of the “shift linkage.”

There is no indication of the ultimate fate of the latter two drawings and the preliminary “sketches.” Koons left TDS in March or April of 1973 and never saw them again. He testified that they might have been left in a credenza behind his desk, but he was not sure.

The appellant’s initial claim is that the evidence was insufficient to establish a cause of action for conversion. It specifically contends that the Northcrafts failed to prove the existence of any property which was capable of being converted. The appellant argues that the only evidence of the existence of plans or parts of the prototype differential was Northcraft’s statement that he assumed that they existed.

The Northcrafts, on the other hand, characterize the issue differently. They assert that the existence of the plans and components and the prototype itself was established by circumstantial evidence; i.e., the representations of Wayne Culver and the letters sent by TDS to Northcraft.

The appellant contends that the trial court erred in denying its motion for a new trial. In reviewing the trial court’s determination, we look to the following standard:

Unlike appellate review of the trial court’s denial of a motion for judgment n.o.v., in which the evidence must be viewed in the light most favorable to the verdict winner, review of the trial court’s denial of a motion for new trial requires that we consider all the evidence, (citations omitted). The grant of a new trial is proper only when the jury’s verdict is so contrary to the weight of the evidence as to shock one’s sense of justice and make a new trial imperative in order that right may be given another opportunity to prevail, (citations omitted). The trial judge, who is present at the offering of the testimony, has broad discretion with regard to ordering a new trial, and his decision will not be reversed on appeal. Unless it appears that he has acted capriciously or has palpably abused his discretion, (citations omitted). A new trial should not ordinarily be granted where the evidence is conflicting and the jury could have found for either party.

Yandrich v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981), appeal dismissed 499 Pa. 271, 453 A.2d 304 (1982).

To determine whether the trial court has abused its discretion, we look to see if “[i]n reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.” Prescott v. Prescott, 284 Pa.Super. 430, 426 A.2d 123 (1981); Commonwealth v. One 1961 Buick Special 4-Door Sedan, 204 Pa.Super. 293, 295, 204 A.2d 288, 289 (1964); Adelman v. John McShain, Inc., 148 Pa.Super. 138, 24 A.2d 703 (1942).

We conclude after reviewing the record that the North-crafts have proven that a conversion had taken place; however, we also find a new trial is warranted because the weight of the evidence clearly indicates that the only property actually proven to have been converted were the two drawings by Koons that were not delivered to Northcraft upon demand. Thus, the trial court erred in allowing testimony on the cost of reproducing an entire prototype.

Conversion is an ancient tort, yet it is rarely the basis of a cause of action in modern times. Its prerequisites were set forth by our supreme court in Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 451, 197 A.2d 721, 726 (1964).

A conversion is the deprivation of another’s right of property in, or use or possession of, a chattel, or interference therewith, without the owner’s consent and without lawful justification. Gottesfeld v. Mechanics and Traders Insurance Co., 196 Pa.Super. 109, 115, 173 A.2d 763, 765 (1961). Prosser stated that “conversion is an act of interference with the domain or control over a chattel * * conversion may be committed by: * * * (c) unreasonably withholding possession from one who has the right to it.” Prosser, Torts § 15 (2d Ed.1955).

See also Baram v. Farugia, 606 F.2d 42 (3rd Cir.1979); Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498 (1974). Restatement (Second) Torts § 222, 222 A. 237 (comment: / “[T]he refusal to surrender a chattel upon demand is not a conversion if the person upon whom the demand is made does not have possession of the chattel at the time of demand.”)

This definition, although easily stated, is somewhat more difficult in its application. Part of the difficulty stems from the common law roots of conversion. The present tort evolved from the common law action of trover. This evolution has resulted in a relaxation of some of the more stringent requirements of the action. The best example of this is the gradual recognition of various forms of property which are capable of being converted; forms of property which were beyond the scope of common law trover. As stated by one commentator:

What property may be the subject of an action for conversion was at first determined on the basis of the fiction of losing and finding. Any tangible chattels could be lost and found, and so could be converted.
Intangible rights of all kinds could not be lost and found, and the original rule was that there could be no conversion of such property. But this hoary limitation has been discarded to some extent by all of the courts.
The process of expansion has stopped with the kind of intangible rights which are customarily merged in, or identified with some document. There is prehaps no very valid and essential reason why there might not be conversion of an ordinary debt, the good will of a business, or even an idea, or “any species of personal property which is the subject of public ownership;” but thus far other remedies apparently have been adequate... (Footnotes omitted).

Prosser, Torts § 15, pp. 82-88 (4th ed. 1971). See also Weiser v. Zeisinger, 2 Yeates 536 (1800) (action of trover will lie for a deed); Overton v. Williston, 31 Pa. 155 (1858) (but not for fixtures); Neiler & Warren v. Kelley, 69 Pa. 403 (1871) (action of trover will lie for conversion of stock certificates and bonds, but not for the incorporeal rights they represent); Mackay, et al, Administrators v. Benjamin Franklin R. & H. Co., 288 Pa. 207, 135 A. 613 (1927) (action for conversion will not lie for an idea, i.e., an architect’s design). But see Evans v. American Stores Company, 3 D. & C.2d 160 (1955) (action permitted for conversion of sports promotion plan); Benaquista v. Har-desty & Associates, 20 D. & C.2d 227 (1959) (action permitted for conversion of architectural design).

However, it is not the form of the property alleged to have been converted that is in issue here. The Northcrafts claim that plans, specification, parts and a prototype differential were intentionally withheld by the appellant. Our inquiry must therefore focus on what proof is necessary to establish the existence of the allegedly converted property; not the form it has taken or its identification within a larger quantity of identical property.

Not surprisingly, there is a paucity of authority on this particular subject. Moreover, and again we are not surprised, the existing authorities are in conflict.

In Farmers State Bank of Knox v. Bowles, 52 N.D. 553, 203 N.W. 903 (1925), the plaintiff bank brought an action for conversion against a mortgagor. The defendant, Eli Bowles, had executed a chattel mortgage on some personalty (farm implements) to secure a One Thousand, Seven Hundred ($1,700.00) Dollar loan. In answer to the bank’s complaint, Bowles denied ever owning or possessing the property described in the complaint. At trial, a verdict was returned in favor of the bank, and Bowles appealed. The appellate court reversed.

The case is remarkable for the similarity of certain of the facts to those in the instant case. As stated by the court:

Aside from the evidence relating to the statements claimed to have been made by Eli Bowles, and the recitals in the mortgage, no evidence was adduced tending to show that Eli Bowles ever had or possessed any of the property described in the mortgage, or even that the property existed. The cashier of the bank stated that he had never seen the property. The plaintiff rested its case solely on the proposition that the defendant is estopped from denying either the existence of the ownership of the property.

Id. at 557, 203 N.W. at 903-904.

The court recognized the general rule that a mortgagor can be estopped from denying ownership of property because of covenants in the mortgage instrument; yet it refused to extend the effect of the estoppel to prove the existence of the property.

[W]hen stripped of all fiction, the actual basis of plaintiff’s case is not that the defendant deprived it of certain property on September 22, 1923, but that on January 9, 1923, he executed and delivered to it a mortgage containing certain false and untrue covenants. There is not the slightest evidence that defendant ... actually converted any of the property in which plaintiff claims a mortgage interest. On the contrary, whatever proof there is, is to the effect that there was no property to convert, and, hence, no conversion.

Id. at 562, 203 N.W. at 905.

The opposite result was obtained in a line of cases commencing with Griswold v. Haven, 25 N.Y. 595 (1862). In Griswold, the defendant, a partner in a warehouse, represented to the plaintiff that he owned a quantity of grain, which was in storage. He further produced receipts as evidence of the quantity of the grain and its value. The plaintiff purchased the grain based on the receipts and the defendant’s representations. The plaintiff demanded the grain and the defendant refused to deliver, whereupon the plaintiff brought an action for conversion against the defendant and his partner in the warehouse.

A verdict was returned for the plaintiff, but a new trial was ordered by the trial judge. The appellate court reversed and ordered that final judgment be entered in the plaintiff’s favor. The court held that the defendants were estopped from denying the existence of the grain, finding that all of the elements of estoppel in pais had been met. Three judges dissented, concluding that the case was more appropriately an action for breach of promise or for misrepresentation. Griswold has been followed by courts of other jurisdictions. See Fletcher v. Great Western Elevator Co., 12 S.D. 643, 82 N.W. 184 (1900); Citizens State Bank v. Security Bank of Tyndall, 54 S.D. 233, 222 N.W. 932 (1929); Coleman v. O’Neil and Pearce, 26 Minn. 123, 1 N.W. 846 (1879).

We note that the Northcraft’s contention is that the representations and letters from Wayne Culver and TDS are circumstantial evidence of the existence of the plans, specifications, parts and prototype differential. They do not specifically contend that the appellant is estopped from denying the existence of the property, either in the court below or herein. However, this does not preclude us from deciding whether estoppel is applicable.

When utilized as a defense, the failure to plead equitable estoppel constitutes a waiver of that defense. Pa.R.C.P. 1030, 1032. However, this court has held that the affirmative use of equitable estoppel is not waived by the failure to raise it in the trial court. Straup v. Times Herald, 283 Pa.Super. 58, 423 A.2d 713 (1980). In the present case, consideration of its applicability is proper because the character of the plaintiffs action as stated in his complaint and the evidence at trial are amenable to an estoppel analysis, even if those specific words were never used. Id.

Equitable estoppel is a doctrine whereby a party will be bound by his representations if they are justifiably relied upon by another party. As this court has stated:

Equitable estoppel arises when a party by acts or representation intentionally or through culpable negligence, induces another to believe that certain facts exist and the other justifiably relies and acts upon such belief, so that the latter will be prejudiced if the former is permitted to deny the existence of such facts. Board of Education of School District of Philadelphia v. Philadelphia Federation of Teachers Local No. 3 AFT, AFL-CIO, 40 Pa. Cmwlth. 490, 397 A.2d 1273 (1979); Northwestern National Bank v. Commonwealth, 345 Pa. 192, 27 A.2d 20 (1942).

Id., 283 Pa.Superior Ct. at 71, 423 A.2d at 720.

Moreover, in determining the role of the court in deciding whether an estoppel has been established, the supreme court has stated:

Whether an estoppel results from established facts is a question for the determination of the courts: (cases cited). It is for the jury to say whether alleged remarks were made, but it is for the court to decide whether they are susceptible of inferences attributed to them. That statements should give rise to an estoppel they must be clear and reasonably certain in their intendment. General Electric Co. v. N.K. Ovalle, Inc., 335 Pa. 439, 445, 6 A.2d 835, 838 (1939).

Nesbitt v. Erie Coach Company, 416 Pa. 89, 96, 204 A.2d 473, 476 (1964). See also Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502 (1983); Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa.Super. 341, 361 A.2d 676 (1976). “[T]he burden on the party-asserting the estoppel to establish the estoppel by clear, precise and unequivocal evidence.” Blofsen v. Cutaiar, 460 Pa. 411, 417, 333 A.2d 841, 844 (1975); Funds for Growth, Inc. v. Maraldo, 443 Pa. 281, 288, 278 A.2d 922, 926 (1971); Ham v. Gouge, 214 Pa.Super. 423, 428, 257 A.2d 650, 653 (1969).

We conclude that the Northcrafts have failed to sustain the burden of proving an estoppel. Granting, of course, that the representations were made by Wayne Culver and the letters sent by TDS, these still are not the “clear, precise and unequivocal evidence” contemplated by our supreme court as justifying unquestioned reliance on the part of Northcraft. To the contrary, the evidence demonstrates that the representations and letters are vague and ambiguous. No specific components, nor specific vendors were ever mentioned. No specific timetable, nor progress reports were given. The representations are just general statements that work is progressing on bills for work completed thus far. Even the statement in the letter of January, 1973 is ambiguous. Does “device” mean the entire prototype, or merely the ring and pinion assembly?

While the Northcraft’s may have relied on these representations and assumed that work on the prototype was progressing rapidly, their reliance was more optimistic than pragmatic given the ambiguous nature of those representations.

Even if the Northcrafts were able to sustain the burden of proof, we are disinclined to accept estoppel as a means of establishing the existence of allegedly converted property. The line of cases in which the estoppel theory is so used concerns the sale of goods. The evidence relied upon to establish the estoppel was either receipts describing the goods, or the representations of the vendor, or both. An underlying rationale of the cases is the preservation of commercial transactions.

The situation herein is distinguishable. There is no question of the sale of goods, but rather a contract to create or manufacture a tangible, working prototype from an idea set forth in a patent abstract. At the outset of the contract the Northcrafts knew that the prototype was not in existence. Thus, a greater presumption exists that the property is not in existence until proven otherwise.

Perhaps an illustration is in order to clarify the principle involved. A philantropist and patron of the arts, X, commissions the well known artist, Y, to paint his favorite landscape. Y agrees to do so for a fee of $4,000.00, but tells X it will take some time since he is an artist and requires special oil paints from Italy and special canvasses from Syria.

A few months go by and X receives a letter from Y, saying, “I am waiting for the special brushes from Japan. As soon as they arrive, I will complete the detail work and the painting will be finished.” X assumes that this means he will have the landscape soon.

A few more months go by and X receives a bill from Y “for work completed so far on landscape,” calling for an additional $2,000.00 over and above the original $4,000.00. X, somewhat discontentedly agrees to pay the bill, but insists that Y discontinue his work and return all sketches, paints, canvasses, and as much of the frame as has been completed.

In response, Y sends to X a pencil sketch on the back of a napkin and two sections of the gilded frame that was to enclose the landscape. Y asserts that this is all of the work that he has done. A member of Y’s studio later tells X that he himself did three perspectives of the landscape, but that he does not know where they are. X then commissions Z to paint the landscape for $12,000.00.

Can X bring an action for conversion? Yes, but only for the three perspectives drawn by the member of Y’s studio; not for the completed landscape. To allow an action for conversion of the landscape itself would be an expansion of the concept of conversion in a new and uncharted direction. A tort based on interference with an individual’s property right in a chattel, regardless of the nature of the chattel, presupposes the existence of that chattel. The action must therefore be limited to chattels of an existing nature; i.e. those whose existence is ascertainable by some concrete proof. It seems that the present circumstances are more amenable to a cause of action for breach of contract or for misrepresentation.

This last concept leads us back to the consideration of the Northcraft’s basic contention that the existence of the plans, sketches, parts and the prototype differential was established by circumstantial evidence. We must disagree. While there is no doubt that circumstantial evidence is admissible and even sufficient to prove an element of a cause of action, Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959), there is a level of such evidence required to sustain the party’s burden of proof. “For one offering only circumstantial evidence to prevail, the evidence must so preponderate in favor of the offeror’s conclusion that it outweighs any other evidence and reasonable inferences therefrom which are inconsistent therewith.” Houston v. Canon Bowl, Inc., 443 Pa. 383, 387, 278 A.2d 908, 911 (1971); Quirk v. Girard Trust Bank, 232 Pa.Super. 356, 331 A.2d 781 (1974).

The Northcraft’s relied solely on the representations of the appellants, and his own assumptions regarding those representations to establish the existence of the converted prototype. We find, as a matter of law, that this evidence is insufficient. Darrell Northcraft also testified that he never saw anything other than what the appellant returned to him. The totality of the appellant’s evidence indicates that all materials, save the sketches prepared by Koons, were returned to the Northcrafts. As a whole, the evidence leads to a conclusion that the only property in existence, and thus the only property able to be converted, were the sketches.

Appellant’s second contention is that the trial court erred in allowing improper evidence on the issue of damages. The Northcrafts introduced evidence of the cost of producing the entire prototype that was constructed under the direction of engineer, Michael Kahl. We agree.

The measure of damages in an action for conversion is the market value of the converted property at the time and place of conversion. Diesel v. Caputo, 244 Pa.Super. 195, 366 A.2d 1259 (1976); Berry v. Heinel Motors, 162 Pa.Super. 52, 56 A.2d 374 (1948). The evidence relating to the cost of reproducing the entire prototype was therefore irrelevant and prejudicial and requires the grant of a new trial. Consequently, we reverse the order of the lower court and remand the case for a new trial. Because the jury concluded that a conversion had indeed taken place, but was misled by the improper evidence on damages, it is only necessary that the new trial be solely on the issue of damages. A new trial may be awarded solely on the issue of damages if (1) the issue of liability has been fairly determined, and (2) the question of damages is readily separable from the issue of liability. Troncatti v. Smereczniak, 428 Pa. 7, 235 A.2d 345 (1967); McIntyre v. Clark, 314 Pa.Super. 552, 461 A.2d 295 (1983); Reid v. Oxendine, 275 Pa.Super. 548, 419 A.2d 36 (1980); Lininger v. Kromer, 238 Pa.Super. 259, 358 A.2d 89 (1976); Lambert v. PBI Industries, 244 Pa.Super. 118, 366 A.2d 944 (1976).

Reversed and remanded. This court does not retain jurisdiction.

      . Northcraft testified generally that the differential when finished was comprised of the following parts: "shifter sleeves; spur gears; shifter clutches; shafts, what we call jack shafts, three shafts, there would have had to have been a pinion retainer; shifting tower; shifting fork; cover; ...” (N.T. 17)

      . TROVER. In common-law practice, the action of trover (or trover and conversion) is a species of action on the case, and originally lay for the recovery of damages against a person who had found another’s goods and wrongfully converted them to his own use. Subsequently the allegation of the loss of the goods by the plaintiff and the finding of them by the defendant was merely fictitious, and the action became the remedy for any wrongful interference with or detention of the goods of another.
      ******
      In form a fiction; in substance, a remedy to recover the value of personal chattels wrongfully converted by another to his own use.
      ******
      A possessory action wherein the plaintiff must show that he has either a general or special property in thing converted and the right of its possession at the time of the alleged conversion.
      ******
      And lies only for wrongful appropriation of goods, chattels, or personal property which is specific enough to be identified.
      Blacks Law Dictionary (4th Ed.)

      . The statements, previously quoted, read: "As soon as these [new gears] come in, we can quickly assemble the device and you are ready for testing.”


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    466 A.2d 629
    Walter SMITH, Appellant, v. CNA INSURANCE.
    Superior Court of Pennsylvania.
    Argued April 27, 1983.
    Filed Sept. 23, 1983.

      Raymond J. Seals, Pittsburgh, for appellant.
    Daniel F. Cusick, Pittsburgh, for appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

Appellant-plaintiff, Walter Smith, brought this action against appellee-defendant, CNA Insurance, alleging that his benefits under an employee disability insurance plan had been reduced wrongfully. A trial was held by a judge, sitting without a jury, who entered a verdict in favor of appellant. Exceptions were filed, and the court sitting en banc granted appellee’s exceptions, and, accordingly, vacated the previous verdict and directed the prothonotary to enter judgment in favor of appellee. This appeal followed. We affirm.

Appellant contends that (1) the exclusion clause set forth in the disability insurance contract must be construed against the insurance company and also that (2) he did not reasonably expect the insurance carrier to deduct from his monthly disability insurance benefits collateral social security benefits paid directly to his emancipated non-dependent children in addition to the deduction of social security disability benefits paid directly to him. We reject appellant’s contentions.

The facts in the instant case were stipulated by the parties and established the following:

1. Appellant, Walter Smith, received a letter, dated March 8, 1979, from Duquesne University explaining the computation of his benefits under his salary continuation plan.

2. Appellant, Walter Smith, received a letter, dated April 22, 1980, from CNA Insurance further explaining the computation of his benefits under the salary continuation plan and itemizing the deductions taken for his own Social Security benefits and those for his eligible dependents.

3. Appellant, Walter Smith, received a brochure from Duquesne University outlining his benefits under the salary continuation plan which specificially [sic] stated that any amounts “paid or payable under the disability or retirement provisions of the Social Security Act (including any payments for eligible dependents)” would be deducted from his benefits.

4. The disability provisions of the Social Security Act which apply to this case and were the basis for the granting of benefits to appellant’s daughters are as follows:

(a) 42 U.S.C. § 402(d)(1)(B);
(b) 42 U.S.C. § 402(d)(3);
(c) 42 U.S.C. § 405(j).

5. Appellant, Walter Smith, was employed as a Professor in the School of Business and Administration at Du-quesne University.

6. The Social Security Administration awarded Social Security Disability Benefits to appellant, Walter Smith, in the amount of $484.40 per month plus Social Security Awards to his adult daughters in the amount of $181.50 each for a combined total of $847.40.

The pertinent section of the salary continuance plan contains the following language:

“ADDENDUM
(1) With respect to faculty members, the term ‘salary’ shall mean one-twelfth of the insured employee’s academic year contract salary (exclusive of bonuses, commissions and overtime earnings) received from the employer. With respect to all other employees, the term ‘salary’ shall mean the monthly wage or salary the insured employee was receiving from the employer as of the date of the accident or commencement of disability from sickness; but excluding any commissions, over-time earnings or other remuneration under profit sharing plans or other bonus arrangements.
(2) Any monthly indemnity payable hereunder shall be reduced by any amounts paid or payable under the disability or retirement provisions of the Social Security Act (including any payments for eligible dependents except those which are subject to an actuarial reduction), any Workmen’s Compensation or any Occupational Disease Act or Law, any State Compulsory Disability Benefit Law; and any disability, retirement or other income benefit provided by or through the employer. The amount of reduction with respect to Social Security shall be the monthly amount which applies to the first period for which benefits are paid under Social Security. Subsequent changes in benefits under the Social Security Act except for changes in dependent status, shall not reduce or increase benefits payable under this policy. However, in the event a change in the dependent status of the insured employee occurs, the amount payable will be computed on such change from that point in time when the insured employee first received Social Security Benefits.” (Emphasis added)

When construing insurance policies, we recognize that because an insurance policy is a contract, the intent of the parties is manifested by the language of the written agreement. Mohn v. American Casualty Co., 458 Pa. 576, 326 A.2d 346 (1974); Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa.Super. 116, 386 A.2d 535 (1978). The policy must be read in its entirety and, where the language is clear and unambiguous, its terms are to be given their plain and ordinary meaning. Pennsylvania Manufacturers’ Ass’n. Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967); Monti v. Rockwood Insurance Company, 303 Pa.Super. 473, 450 A.2d 24 (1982). Blocker v. Aetna Casualty & Surety Company, 232 Pa.Super. 111, 332 A.2d 476 (1975).

Appellant suggests that we should ignore the provisions of the Social Security Act, because in his view, “there is no language in the contract or brochure that permits Defendant, CNA, to deduct social security payments made to adult daughters.” Brief at 11.

At this point, an examination of the policy scheme is in order. The salary continuance plan states that under certain circumstances the monthly payment shall be reduced by amounts which are “paid or payable,”

(1) “under disability or retirement provisions of the Social Security Act”;
(2) “Workmen’s Compensation or any Occupational Disease Act or Law”;
(3) “any State Compulsory Disability Benefit Law”; and
(4) “any other disability, retirement, or other income benefit provided by or through the employer.” (Emphasis added).

For background information, we note that in 1956, Congress created a disability insurance program, which “unlike the public assistance provisions was not need based, but instead was designed to protect against economic hardships created by involuntary, premature retirement.” Mathews v. De Castro, 429 U.S. 181, 186 ftn. 6, 97 S.Ct. 431, 435 ftn. 6, 50 L.Ed.2d 389, 394 ftn. 6 (1976). This program, the Social Security “retirement and disability program”, is an “insurance program [which is] contributory in nature and [is] designed to prevent public dependency by protecting workers and their families against common economic hazards.” Id.

Because the clause at issue specifically refers to the “provisions of the Social Security Act (including any payments for eligible dependents)”, we will look to the provisions of that Act for guidance in order to determine who are “eligible dependents.”

Under the child’s insurance benefits provisions of the Social Security Act, coverage is extended to

“(1) Every child (as defined in section 416(e) of this title) of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, if such child—
(A) has filed application for child’s insurance benefits,
(B) at the time such application was filed was unmarried and (i) either had not attained the age of 18 or was a full-time elementary or secondary school student and had not attained the age of 19, or (ii) is under a disability (as defined in section 423(d) of this title' which began before he attained the age of 22, and
(C) was dependent upon such individual—
(i) if such individual is living, at the time such application was filed,
(ii) if such individual has died, at the time of such death, or
(iii) if such individual had a period of disability which continued until he became entitled to old-age or disability insurance benefits, or (if he has died) until the month of his death, at the beginning of such period of disability or at the time he became entitled to such benefits, shall be entitled to a child’s insurance benefit for each month, beginning with the first month after August 1950 in which such child becomes so entitled to such insurance benefits and ending with the month preceding whichever of the following first occurs—

shall be entitled to a child’s insurance benefit for each month, beginning with—

(i) in the case of a child (as so defined) of such an individual who has died, the first month in which such child meets the criteria specified in subparagraphs (A), (B), and (C), or
(ii) in the case of a child (as so defined) of an individual entitled to an old-age insurance benefit or to a disability insurance benefit, the first month throughout which such child is a child (as so defined) and meets the criteria specified in paragraphs (B) and (C) (if in such month he meets the criterion specified in paragraph (A)),
(3) A child shall be deemed dependent upon his father or adopting father or his mother or adopting mother at the time specified in paragraph (1)(C) of this subsection unless, at such time, such individual was not living with or contributing to the support of such child and—
(A) such child is neither the legitimate nor adopted child of such individual, or
(B) such child has been adopted by some other individual. For purposes of this paragraph, a child deemed to be a child of a fully or currently insured individual pursuant to section 416(h)(2)(B) or section 416(h)(3) of this title shall be deemed to be the legitimate child of such individual.” (Emphasis added) (Footnotes added).

Appellant has offered no definition of the term “eligible dependents” other than to state that “[t]he clear meaning of this language is that [p]laintiff s indemnity will be reduced by social security payments paid to him for himself and for other eligible dependents. It does not state that his monthly indemnity will be reduced by social security payments paid directly to adult daughters.” Brief for Appellant at 9-10. (Emphasis added) If, as appellant suggests, some other definition of dependent was to operate in tandem with the salary continuation plan, there would have been no need for the policy to contain the following:

“The amount of reduction with respect to Social Security shall be the monthly amount which applies to the first period for which benefits are paid under Social Security. Subsequent changes in benefits under the Social Security Act except for changes in dependent status, shall not reduce or increase benefits payable under this policy. However, in the event a change in the dependent status of the insured employee occurs, the amount payable will be computed on such change from that point in time when the insured employee first received Social Security Benefits.” (Emphasis added)

By linking the amount payable under the policy in disability cases to the social security scheme, the parties to the contract provided a logical indicator of dependency status without requiring a factual determination into whether a policyholder has eligible dependents since presumably that decision has already been made at the social security level. Simply stated, the policy defers to the expertise of the Social Security Administration. Cf. Weinberger v. Salfi, 422 U.S. 749, 767, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522, 539 (1975) (doctrine of administrative exhaustion is required “as a matter of preventing premature interference with agency process, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.”) (Emphasis added).

Interestingly enough, at the time that appellant’s daughters initially applied for children’s insurance benefits under the Social Security Act, a presumption arose that they were appellant’s dependents because, inter alia, (1) the daughters either were living with appellant; or (2) appellant contributed to their support. 42 U.S.C.A. § 402(b)(3). Appellant conceded as much in his stipulation.

We note that appellant does not argue that his two adult daughters are not entitled currently to receive social security benefits; instead, he is arguing that although they are entitled to social security benefits, his policy payment should not be reduced by an amount awarded to them under the Social Security Act. Before this Court, appellant is in the unique position of espousing the contrary of what enabled his daughters to receive social security benefits in the first instance.

The reason that payments are made directly to appellant’s daughter is because of the following section of the Social Security Act which the parties have stipulated is controlling:

“Direct or indirect certification
(j) When it appears to the Secretary that the interest of an applicant entitled to a payment would be served thereby, certification of payment may be made, regardless of the legal competency of incompetency of the individual entitled thereto, either for direct payment to such applicant, or for his use and benefit to a relative or some other person.” 42 U.S.C.A. § 405(j). (Emphasis added).

Although it appears that appellant’s daughters are continuing to receive social security benefits because they are full-time students (Hearing Transcript at 3), we cannot confirm this fact of record because arguments of counsel are not considered a part of the official record. Commonwealth v. Rini, 285 Pa.Super. 475, 481-482 ftn. 5, 427 A.2d 1385, 1389 ftn. 5 (1981).

Notwithstanding this deficiency, we conclude that the amount which appellant receives under the policy is predicated not upon appellant’s definition of who is or who is not a dependent. Instead, the Social Security Act definition controls. As a result, we must reject appellant’s argument.

Additionally, appellant relies on the principles that because the terms of the policy are ambiguous and because of the inferior bargaining position of the parties, the insured could expect reasonably that his benefits would not be reduced. First of all, the terms of the policy in dispute, as previously set forth, are clear and are not reasonably susceptible to more than one interpretation. See Cohen v. Erie Indemnity Company, 288 Pa.Super. 445, 451, 432 A.2d 596, 599 (1981).

Second, we need not construe the insurance provisions against the writer of the policy under the theory that insurance contracts are contracts of adhesion because the policy in question was a group plan and not an individual plan as the real insured was not appellant, the individual employee, but a group of employees who were represented by their employer, Duquesne University. See Layman v. Continental Assurance Company, 416 Pa. 155, 158-162, 205 A.2d 93, 95-96 (1964); Henning v. Metropolitan Life Insurance Company, 546 F.Supp. 442 (M.D.Pa.1982).

Additionally, there is no indication in the record or otherwise that the insurance company led appellant to reasonably expect a different result. See e.g., Collister v. Nationwide Life Insurance Company, 479 Pa. 579, 388 A.2d 1346 (1978), cert. denied, Nationwide Life Insurance Company v. Collister, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979).

In fact, a letter from the insurance company which was sent to appellant requested that appellant “advise us of any award you and the members of your family may receive from Social Security so that no substantial overpayment occurs on your file for which you will have to reimburse CNA/Insurance.” Exhibit A, supra at pp. 451-452, ftn. 2. For appellant to now argue that he could not reasonably expect for him to be required to pay over $2,000.00 in view of the policy language and the correspondence he received is unsupported by the record.

Order and judgment affirmed.

      . According to the record, judgment was entered on April 15, 1983.

      . Exhibit A reads as follows:
      "March 8, 1979
      Professor Walter J. Smith
      2457 Haymaker Road Monroeville, Pa. 15146
      Dear Professor Smith:
      Enclosed please find the initial check issued by CNA/Insurance for one month of total disability to March 17, 1979, in the amount of $1,224.00. This benefit was calculated as follows:
      $24,480/yr. + 12 months = $2,040/month x 60% = $l,224/month
      Please note that CNA is allowing full disability benefit as you requested. It is important that you advise us of any award you and

        the members of your family may receive from Social Security so that no substantial overpayment occurs on your file for which you will have to reimburse CNA/Insurance.

      Also enclosed please find a carbon copy of the check in the amount of $244.80 which CNA has provided for payment of your monthly TIAA-CREF retirement annuity premiums, as follows:
      Total Monthly TIAA-CREF Contributions = $244.80
      Enclosed please find a brochure from CNA/Insurance which briefly outlines the benefits of their salary continuance plan.
      Benefits Coordinator
      Office of Personnel Services
      VIA CERTIFIED MAIL (#964162)
      (Emphasis added).

      . Exhibit B reads as follows:
      “April 22, 1980
      Walter Smith
      2457 Haymaker Road Monroeville, PA 15146
      Claim: 62-579828-A3
      Policy: 068088013
      Dear Mr. Smith:
      The above captioned policy is a salary continuance policy, the monthly benefits being reduced by payments from Social Security for the primary insured and eligible dependents.
      We have received information from Social Security which indicates that effective 2/1/79, you were awarded a $484.40 Social Security disability benefit and your daughters Tara and Maura were awarded $181.50 each per month on your behalf. Thus your family’s Social Security award effective 2/1/79 is $847.40.

        Our benefits became payable 2/17/79. Our monthly liability was $1,224.00. Deducting your $847.50 family Social Security award, our payments to you commencing 2/17/79 should have been based upon a $376.60 per month figure. Thus, from 2/17/79 to 4/17/80, benefits were owed to you in the amount of $5,272.40. However, benefits are paid to you in the amount of $7,813.42 (please note, the $968.80 return from you previously has been taken into account and the benefits paid). Deducting the benefits owed from the benefits paid leaves an overpayment of $2,541.00.
      Please forward to our office your personal check made payable to CNA/insurance in the amount of $2,541.00 to cover the overpayment. We wait to hear from you. Also, if you have any questions, please contact this office.
      Sincerely,
      GAIL ROBERTS
      Attention: Ruthann Saylor” (Emphasis added).

      . The pertinent portion of the brochure contains the following language:
      “WHAT ARE THE BENEFITS?
      If a disability due to an accident or sickness continues beyond the first six months, Salary Continuance Benefits become payable. Salary continuance insurance will provide you with a benefit of 60% of the first $1,000 of monthly salary plus 40% of excess to a maximum combined benefit of $1,000 per month less any amounts paid or payable under the disability or retirement provisions of the Social Security Act (including any payments for eligible dependents), any workmen’s compensation or any occupational disease act or law, any state compulsory disability benefit law; and any disability, retirement or other income benefits provided by or through the employer." (Emphasis in original)

      . Act of August 14, 1935, C. 531, Title II, § 202, 49 Stat. 623; as amended.

      . Section 416(e) provides:
      "(e) Child '
      The term ‘child’ means (1) the child or legally adopted child of an individual, (2) a stepchild who has been such stepchild for not less than one year immediately preceding the day on which application for child’s insurance benefits is filed or (if the insured individual is deceased) not less than nine months immediately preceding the day on which such individual died, and (3) a person who is the grandchild or stepgrandchild of an individual or his spouse, but only if (A) there was no natural or adoptive parent (other than such a parent who was under a disability, as defined in section 423(d) of this title) of such person living at the time (i) such individual became entitled to old-age insurance benefits or disability insurance benefits or died, or (ii) if such individual had a period of disability which continued until such individual became entitled to old-age insurance benefits or disability insurance benefits, or died, at the time such period of disability began, or (B) such person was legally adopted after the death of such individual by such individual’s surviving spouse in an adoption that was decreed by a court of competent jurisdiction within the United States and such person’s natural or adopting parent or stepparent was not living in such individual’s household and making regular contributions toward such person’s support at the time such individual died. For purposes of clause (1), a person shall be deemed, as of the date of death of an individual, to be the legally adopted child of such individual if such person was at the time of such individual’s death living in such individual’s household and was legally adopted by such individual’s surviving spouse after such individual’s death but only if (A) proceedings for the adoption of the child had been instituted by such individual before his death, or (B) such child was adopted by such individual’s surviving spouse before the end of two years after (i) the day on which such individual died or (ii) August 28, 1958; except that this sentence shall not apply if at the time of such individual’s death such person was receiving regular contributions toward his support from someone other than such individual or his spouse, or from any public or private welfare organization which furnishes services or assistance for children. For purposes of clause (2), a person who is not the stepchild of an individual shall be deemed the stepchild of such individual if such individual was not the mother or adopting mother or the father or adopting father of such person and such individual and the mother or adopting mother, or the father or adopting father, as the case may be, of such person went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment described in the last sentence of subsection (h)(1)(B) of this section, would have been a valid marriage. For purposes of clause (2), a child shall be deemed to have been the stepchild of an individual for a period of one year throughout the month in which occurs the expiration of such one year. For purposes of clause (3), a person shall be deemed to have no natural or adoptive parent living (other than a parent who was under a disability) throughout the most recent month in which a natural or adoptive parent (not under a disability) dies.

      . Under § 423, the term disability means:
      "(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; or
      (B) in the case of an individual who has attained the age of 55 and is blind (within the meaning of ‘blindness’ as defined in section 416(i)(l) of this title), inability by reason of such blindness to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time.”

      . The United States Supreme Court has commented on the presumptions embodied in the social security statute and has said:
      "Instead of requiring individualized proof on a case-by-case basis, Congress has elected to use simple criteria, such as age and marital status, to determine probable dependency. A child who is married or over 18 and neither disabled nor a student is denied benefits because Congress has assumed that such a child is not normally dependent on his parents. There is no question about the power of Congress to legislate on the basis of such factual assumptions. General rules are essential if a fund of this magnitude is to be administered with a modicum of efficiency, even though such rules inevitably produce seemingly arbitrary consequences in some individual cases. Weinberger v. Salfi, 422 U.S. [at] 776, 95 S.Ct. [at] 2472, 45 L.Ed.2d 522____ [The rules] avoid any necessity for periodic review of the beneficiaries' continued entitlement."

        Califano v. Jobst, 434 U.S. 47, 52-53 and 57, 98 S.Ct. 95, 99 and 101, 54 L.Ed.2d 228, 234 and 237 (1977).

      . In fact, the United States Supreme Court has expressed similar views:
      "Employers regard group insurance not only as protection at low cost for their employees but also as advantageous to themselves in that it makes for loyalty, lessens turn-over and the like. When procuring the policy, obtaining applications of employees, taking payroll deduction orders, reporting changes in the insured group, paying premiums and generally in doing whatever may serve to obtain and keep the insurance in force, employers act not as agents of the insurer but for their employees or for themselves."

        Boseman v. Connecticut General Life Insurance, 301 U.S. 196, 204-205, 57 S.Ct. 686, 690-691, 81 L.Ed. 1036, 1041 (1937).


author: CERCONE, President Judge:

text:
    466 A.2d 636
    COMMONWEALTH of Pennsylvania v. Joel C. JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1981.
    Filed Sept. 23, 1983.

      Stuart F. Conston, Philadelphia, for appellant.

      Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, Joel C. Johnson, takes this appeal from his conviction on numerous traffic violations. Appellant’s principal argument is that these convictions violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. We find appellant’s position to have merit, and we reverse those convictions set forth more specifically below which were entered contra to this constitutional provision. However, regarding the remainder of appellant’s convictions, we must remand for further hearings because the record does not contain all the relevant facts necessary for the disposition of those said convictions.

On September 26, 1979, appellant was charged with ten violations of the Vehicle Code arising from his operation of a motor vehicle on that date. All of the offenses were said to have taken place during one uninterrupted episode lasting three minutes, from 12:39 a.m. to 12:42 a.m., on Route 100, between Colebrookdale, Berks County, passing through Douglasville Township, Montgomery County, and ending in Upper Pottsgrove, Montgomery County. Charges were filed against appellant in each municipality through which he passed. On October 2, 1979, appellant appeared at hearings before magistrates in two of the townships mentioned—one in Montgomery County and one in Berks County—and pleaded guilty. The record, unfortunately, does not, specify which of these two hearings was first in time, a relevant consideration for the double jeopardy question. In any event, on November 15, 1979, appellant appeared again without counsel before a third magistrate—this one also being in Montgomery County—and pleaded guilty to all charges then presented. In all, appellant was three times convicted of failing to wear protective headgear (75 Pa.C.S. § 3525); twice with speeding (75 Pa.C.S. § 3362); twice for refusing to stop (75 Pa.C.S. § 3733); twice for driving without lights (75 Pa.C.S. § 3734); and once for driving on the medial strip (75 Pa.C.S. § 3311). Appellant took no immediate appeal from these convictions.

Thereafter, on May 22, 1980, upon being notified of appellant’s repeated convictions under sections 3733 and 3734 of the Vehicle Code, the Department of Transportation suspended appellant’s operating privileges for five years. Appellant then retained counsel, who filed a petition with the Court of Common Pleas of Montgomery County for leave to withdraw his guilty pleas nunc pro tunc, arguing, inter alia, that appellant’s double jeopardy rights were violated. The court denied this petition and appellant now appeals.

I.

Appellant first argues that his rights under 18 Pa.C.S. § 110 (1973) were violated. In relevant part, section 110 provides:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense;

Appellant’s issue under section 110 must be dismissed, for this Court recently ruled against this argument in Commonwealth v. Quackenbush, 314 Pa.Super. 324, 460 A.2d 1162 (1983). There we held that an accused who is aware of all charges filed against him in separate townships but based on the same criminal episode, and who fails to move for the consolidation of these charges, waives his section 110 statutory right to have all of these charges brought in a single prosecution. Quackenbush governs the disposition of appellant’s section 110 issue.

But the disposition of the section 110 issue does not automatically determine appellant’s double jeopardy question. While in many respects section 110 and the double jeopardy clause serve the same ends, nevertheless, the two provisions are not one and the same. In the first instance, the double jeopardy clause is, of course, a constitutional right; by contrast, section 110 is merely statutory. This distinction is crucial when the question of waiver is an issue. A constitutional right will only be deemed waived where the decision to waive that right is both knowing and intelligent. See cases cited in text, infra, at 472. With regard to statutory provisions, the waiver need only be voluntary. Commonwealth v. Mallon, 279 Pa.Super. 350, 421 A.2d 234 (1980).

Secondly, while the double jeopardy clause and section 110 at times may, as in the instant matter, overlap in their application, this is not true in all situations. The double jeopardy clause prevents subsequent trials by the same sovereign for the same act whether the initial trial resulted in an acquittal or a conviction. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975). Section 110, on the other hand, requires that, when certain other requirements are met, all of the charged offenses “based on the same conduct or arising from the same criminal episode” be tried at the same time or be barred. Section 110, unlike the double jeopardy clause, is not limited to prosecutions for the same act. Indeed, as far as Pennsylvania statutory law is concerned, section 109 of Title 18 more properly governs prosecutions for the same act. In sum, appellant’s double jeopardy issue must still be decided.

II.

A.

The next matter which must be addressed is whether the double jeopardy clause applies to summary traffic offenses. We conclude that it does. In Borough of West Chester v. Lai, 493 Pa. 387, 426 A.2d 603 (1981), the defendant was convicted in a summary proceeding for violation of a local ordinance. In the trial de novo before the Common Pleas Court appellant was adjudged not guilty of the charges, and the Commonwealth appealed. The Commonwealth Court reversed and reinstated the verdict of guilty. Appellant appealed to the Supreme Court, arguing that his double jeopardy rights were violated by the reinstatement of his conviction. The Supreme Court agreed, and ruled thusly on appellant’s double jeopardy argument:

Appellant argues that the order of the Commonwealth Court impermissibly subjects him to double jeopardy in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and of Article I, § 10 of the Pennsylvania Constitution. We agree.
Essentially, appellant’s double jeopardy argument is that the summary proceedings in this case are criminal in nature and that, therefore, the “not guilty” verdict entered by the trial court bars further proceedings. The Borough disputes both facets of this syllogism, maintaining that the lower court procedings were civil, and that the “not guilty” verdict was not truly a judgment of acquittal on the merits but was, rather, a ruling tantamount to an appealable “dismissal of the Complaint on technical, legal grounds.” The Borough is wrong on both counts.
The Pennsylvania Rules of Criminal Procedure define “criminal proceedings” as including “all actions for the enforcement of the Penal Laws.” Pa.R.Crim.Pro. 3(g). The penal laws include “any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty.” Pa.R.Crim.Pro. 3(1). An ordinance is a “legislative enactment of a political subdivision.” Pa.R.Crim.Pro. 3(k). These definitions (where were in effect in 1976) remove any doubt as to the nature of the instant proceedings—they are criminal proceedings.

Id., 493 Pa. at 390-391, 426 A.2d at 604-605. (Footnotes omitted).

While in appellant’s case we are not concerned with a local ordinance but with violations of the statutory laws contained in the Vehicle Code, the result under the double jeopardy clause is the same. The term “penal laws”, as defined in Pa.R.Crim.Pro. 3(Z), includes, of course, not only ordinances but also “all statutes and embodiments of the common law which establish, create or define crimes or offenses____” Furthermore, although the prescribed penalty for violation of the provisions of the Vehicle Code is typically payment of a fine, a person may be sent to prison under the Vehicle Code for failure to pay a fine. 75 Pa.C.S. § 6504 (Supp.1982). Therefore, we conclude that the double jeopardy clause does apply to motor vehicle citations.

B.

However, even rights of constitutional dimensions can be waived, Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977), and an accused who does not act in a timely manner may waive a double jeopardy issue. Commonwealth v. Rabik, 259 Pa.Super. 456, 393 A.2d 916 (1978). Usually, the issue of double jeopardy should be raised in pretrial motions. Commonwealth v. Rabik, supra; Commonwealth v. Davis, 247 Pa.Super. 450, 372 A.2d 912 (1977); Commonwealth v. Splain, 242 Pa.Super. 503, 364 A.2d 384 (1976); Pa.R.Crim.P. 306 (1982). However, the waiver of a constitutional right must be made knowingly and intelligently; to be a knowing and intelligent waiver, the defendant must have been aware of both the right and the risks of forfeiting the same. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971), Commonwealth v. Mallon, 279 Pa.Super. 350, 421 A.2d 234 (1980). Waiver of a constitutional right cannot be presumed from a silent record, and the presumption must always be against waiver of a constitutional right. Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971), appeal after remand 456 Pa. 252, 318 A.2d 351 (1974). In the instant case, appellant entered his plea without advice of counsel. In view of this fact and because the record fails to show that appellant was otherwise advised of his double jeopardy right, we decline in the instant matter to find that appellant has waived this constitutional right by not raising it prior to trial.

C.

Similarly, we decline to find that appellant waived his right to file a petition to withdraw his guilty plea owing to his failure to comply with the time limitations for filing such a petition, as set forth in Pa.R.Crim.Pro. 321. There is no showing on the record that appellant was informed by the court of the requirements of Rule 321 or of any of his appellate rights. Pa.R.Crim.P. 63(f). See Commonwealth v. Heeman, 495 Pa. 277, 433 A.2d 477 (1981); Cf. Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (In de novo trial before common pleas court on a summary offense, accused must be advised of appeal rights, per Pa.R.Crim.P. 1123). Absent such evidence, and because appellant acted without advice of counsel, we will not find appellant’s petition to withdraw his guilty plea to be untimely. See Commonwealth v. Heeman, supra; Commonwealth v. McCusker, 485 Pa. 313, 402 A.2d 500 (1977); Commonwealth v. Vigue, 279 Pa.Super. 46, 420 A.2d 736 (1980). Cf. Commonwealth v. Saxton, 273 Pa.Super. 410, 417 A.2d 714 (1980) (Accused, who discharged the public defender appointed to represent him, can, if advised of his appeal rights, validly waive said rights).

III.

The next matter which must be addressed is whether appellant presented sufficient reasons to justify granting his request for permission to withdraw his guilty plea. It is the general rule that where withdrawal of a guilty plea is sought after sentence has been imposed, a showing of prejudice amounting to manifest injustice is required before withdrawal is properly justified. Commonwealth v. May, 485 Pa. 371, 402 A.2d 1008 (1979). A plea of guilty usually constitutes a waiver of all defects and defenses except those concerning the jurisdiction of the court, legality of sentence, and validity of plea. Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982). Accordingly, in the case of Commonwealth v. Mitchell, 497 Pa. 14, 438 A.2d 596 (1981), the Supreme Court allowed an accused to withdraw his guilty plea where that plea was entered to charges on which he had already been adjudged not guilty. Citing United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), the "Mitchell Court ruled this to be a violation of both the federal and Pennsylvania Constitutions’ prohibitions against double jeopardy.

Following the rationale of - Mitchell, we conclude that appellant has presented sufficient reasons to justify granting his request for permission to withdraw his guilty plea. It is undisputed that the charges arose from one uninterrupted episode. Many of the charges were duplicative, as this chart makes clear.

§3311

Nevertheless, a complete adjudication on the merits of appellant’s claim is not possible at this time because an important fact is missing from the record—that is, which hearing was first in time. It is necessary to know this since none of the guilty pleas entered at the first hearing would violate double jeopardy, simply by virtue of being the first trial on the charges. It is only at the second and third hearing where double jeopardy comes into play.

A further complication is the fact that although appellant filed a petition with the Montgomery County Court of Common Pleas to withdraw his guilty pleas, he neglected to do the same in Berks County. Thus, the three guilty pleas which appellant entered in Berks County are not now properly before this Court. This would be of no moment to the instant appeal if it was certain the Berks County hearing was chronologically first in time. If that were indeed the case, then two of the three convictions, (for §§ 3525 and 3733) entered later that day at the Montgomery County hearing could be reversed on double jeopardy grounds.

However, as we indicated, the sequence of the hearings on October 2, 1980 is not clear. Assuming arguendo that it was the. Montgomery County hearing which occurred first, then, perforce, double jeopardy would not be an issue vis-a-vis those convictions. Then, although two of the three guilty pleas (for §§ 3525 and 3733), later entered at the hearing in Berks County would appear to violate double jeopardy principles, we could not reverse those latter convictions because they are not properly before this Court. In sum, if the Berks County hearing was first, then one conviction under section 3525 and one under 3733 entered oh October 2, 1980 in Montgomery County can be reversed. If, however, the Montgomery County hearing was first, then no convictions from the October hearings can be reversed. For this reason, we must remand for an eviden-tiary hearing to determine the sequence of the above two hearings. Once the court has cleared up this factual matter, it can rule accordingly on the legal issues.

The facts surrounding the hearing on November 15, 1980 are fortunately more clear. That hearing was held in Montgomery County, and so those convictions are properly before this Court by virtue of appellant’s appeal from the denial of his petition by Montgomery County Court of Common Pleas. Additionally, we can ascertain from the record that three of the four guilty pleas entered at that hearing were in violation of the double jeopardy clause. Specifically, we are talking about the convictions under sections 3525, 3734 and 3362 of the Vehicle Code. A conviction under each of these sections had already been entered at one or the other of the two hearings on October 2, 1980. Therefore, we find that the trial court erred when it refused to allow appellant to withdraw his guilty pleas to these charges.

Accordingly, we hereby vacate the order of the trial court denying appellant permission to withdraw his guilty pleas, which were entered on November 15, 1980, to charges under sections 3525, 3734, and 3362 of the Vehicle Code and we reverse those convictions. As regarding the guilty pleas entered on October 2, 1980, we hereby remand this case for an evidentiary hearing to determine which of the two hearings held on that date was first in time and which was second, and, based upon those factual findings to rule accordingly on appellant’s double jeopardy issue. This Court does not retain jurisdiction.

McEWEN, J. concurs in the result.

      . The violations were under these sections of the Vehicle Code: 75 Pa.C.S. §§ 3311, 3362, 3525, 3733, 3734 (1977).

      . Appellant separately appealed from the order of the Court of Common Pleas of Montgomery County which affirmed the order of the Department of Transportation, Bureau of Traffic Safety, revoking appellant’s driving privileges for five years. Because it appeared that the issues were related, we transferred the herewithin case to the Commonwealth Court on June 6, 1982. The Commonwealth Court affirmed appellant’s suspension, noting that the only appropriate inquiry in such an appeal is whether the operator was convicted and not whether he should have been convicted. Johnson v. Commonwealth, 68 Pa.Cmwlth. 384, 449 A.2d 121 (1982). Commonwealth Court, however, declined to decide the herewithin appeal by appellant, holding it had no jurisdiction, and on December 29, 1982, the Court transferred the case sub judice back to our Court.

      . The Quackenbush Court relied on the Supreme Court’s opinion in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), in which the Court held that neither section 110 nor the compulsory joinder rule barred the accused’s trial in common pleas court for aggravated assault although appellant had previously been convicted for summary traffic offense arising from the same criminal episode.

      . This Court recognizes that appellant was not, under these facts, entitled to a court appointed attorney, since counsel will only be appointed where there is a likelihood that imprisonment will be imposed. Argensinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Groff v. Township of Elizabeth, 54 Pa.Cmwlth.Ct. 192, 420 A.2d 791 (1980); Pa.R.Crim.P., Rules 65(a), 316(a).
      Nevertheless, this does not change the fact that an accused, even in a summary case, has the protection of the double jeopardy clause. Borough of West Chester v. Lai, supra. Neither does it void the rule that all waivers of constitutional right must be knowing and intelligent. Johnson v. Zerbst, supra. The only issue which this right-to-counsel rule determines is whether indigents are entitled to court appointed attorneys in cases where imprisonment is not likely.

      . Pa.R.Crim.P. 321(a) provides:
      A motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.

      . Pa.R.Crim.P. 63(f) states:
      At the time of sentencing, the issuing authority shall advise the defendant of his right to appeal and trial de novo, and the time within which he must exercise that right.

      . In relevant part, Rule 1123 reads:
      (a) Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment.
      (c) Upon the finding of guilt, the trial judge shall advise the defendant on the record:
      (1) of the right to file post-verdict motions and of the right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein;
      (2) of the time within which he must do so as set forth in paragraph (a); and

        (3) that only the grounds contained in such motions may be raised on appeal.


author: PER CURIAM:

text:
    466 A.2d 643
    Delbert J. McQUAIDE, Administrator of the Estate of Samuel D. McQuaide, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    Superior Court of Pennsylvania.
    Submitted July 26, 1983.
    Filed Sept. 23, 1983.
    James Michael Horne, State College, for appellant.
    Ronald M. Lucas, State College, for appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   PER CURIAM:

Delbert J. McQuaide, administrator of the estate of Samuel D. McQuaide, appeals from the order of the lower court which sustained the demurrer of appellee United States Fidelity and Guaranty Company (USFGA) and dismissed McQuaide’s action to recover work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa.C.S. § 1009.101 et seq.

Samuel D. McQuaide, an insured of USFGA, died in a motor vehicle collision in March 1979. His estate filed an action in assumpsit for $15,000 in work-loss benefits, plus attorneys’ fees and eighteen percent interest in February 1981. USFGA demurred, and the trial court sustained the demurrer on the grounds that only “survivors” as defined in 40 Pa.C.S. § 1009.103 were eligible to recover work loss benefits, and McQuaide’s estate had not established economic dependency on the deceased victim.

The issue presented in this appeal is whether the estate of a deceased victim is entitled to work-loss benefits. This question was resolved by this Court en banc in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982), which held that the estate of a deceased victim is entitled to recover work-loss benefits under the No-Fault Act. Beamsderfer v. Donegal Mutual Insurance Co., 304 Pa.Super. 534, 450 A.2d 1366 (1982), relying on Freeze, supra, and Chesler v. Government Employees Insurance Co., 302 Pa.Super. 356, 448 A.2d 1080 (1982) held that in an estate’s action for work-loss benefits, the issues of survivorship and economic dependency were not relevant. See also Wingeart v. State Farm Mutual Automobile Insurance. Company, 302 Pa.Super. 524, 449 A.2d 40 (1982); Reynolds v. Nationwide Mutual Insurance Company, 303 Pa.Super. 31, 449 A.2d 62 (1982), petition for allowance of appeal granted; Miller v. United States Fidelity and Guaranty Co., 304 Pa.Super. 43, 450 A.2d 91 (1982); LaRocca v. Aetna Life and Casualty Co., 304 Pa.Super. 421, 450 A.2d 751 (1982); Hartleb v. Ohio Casualty Insurance Co., 305 Pa.Super. 231, 451 A.2d 506 (1982); Anfuso v. Erie Insurance Group, 306 Pa.Super. 567, 452 A.2d 870 (1982); Tubner v. State Farm Mutual Automobile Insurance Co., 307 Pa.Super. 207, 452 A.2d 1388 (1982); Ohrin v. Erie Insurance Exchange, 307 Pa.Super. 236, 453 A.2d 12 (1982); Nye v. Erie Insurance Exchange, 307 Pa.Super. 464, 453 A.2d 677 (1982); Heirs v. Keystone Ins. Co., 308 Pa.Super. 288, 454 A.2d 134 (1982); King v. Liberty Mutual Insurance Co., 310 Pa.Super. 141, 456 A.2d 223 (1983) (all maintaining the right of an estate of a deceased victim to bring an action for work-loss benefits).

The order of the lower court is reversed, and the case is remanded for disposition not inconsistent with this opinion. Jurisdiction is relinquished.