author: CAVANAUGH, Judge: DiSALLE, Judge,

text:
    440 A.2d 535
    In the Interest of RYAN MICHAEL C., a minor. Appeal of MICHAEL S. and Marjorie C. S.
    Superior Court of Pennsylvania.
    Submitted June 24, 1981.
    Filed Jan. 19, 1982.

      James T. Rague, Wellsboro, for appellant.
    William A. Hebe, Wellsboro, for Children’s Services, participating party.
    Earl W. Tabor, Wellsboro, for Guardian, participating party.
    Before HESTER, CAVANAUGH and DiSALLE , JJ.

       Decision was rendered prior to DI SALLE, J., leaving the bench of the Superior Court of Pennsylvania.

   CAVANAUGH, Judge:

This appeal is taken from an order of the lower court granting custody of Ryan Michael C., the infant son of appellants Michael S. and Marjorie C. S., to Children’s Services of Tioga County. Because the order was not based on a finding of dependency as required by the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., we vacate the order and remand the case.

On October 10, 1980, Children’s Services of Tioga County filed a petition pursuant to the Juvenile Act alleging that Ryan Michael, born May 2, 1980, was a dependent child. A brief hearing on the petition was held on October 13,1980. At the conclusion of that hearing, the judge entered the following order.

And now, October 13, 1980, custody of the above minor is awarded to Children’s Services of Tioga County until further Order of Court.

No adjudication of dependency was made. We have repeatedly held that no court may interfere with a parent’s custody of his or her child absent a finding of dependency and full compliance with the Juvenile Act procedures. In Re A. E. M., 288 Pa.Super. 284, 431 A.2d 1049 (1981); Hemenway v. Hemenway, 284 Pa.Super. 481, 426 A.2d 149 (1981); In re Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980); In re Jackson, 267 Pa.Super. 428, 406 A.2d 1116 (1979); In The Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). The order entered by the lower court in this case was, therefore, clearly improper.

A hearing on a petition alleging dependency proceeds in two stages. First, the court must determine by “clear and convincing evidence” that the child is dependent. A dependent child is defined, in relevant part, as one who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals.” In determining whether a child is dependent, the court must ascertain not only what sort of parental care the child received in the past, but also what sort of parental care the child will receive if custody is given to the parents. In The Interest of K. B., 276 Pa.Super. 380, 419 A.2d 508 (1980); In The Interest of Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976). Only if the court concludes by clear and convincing evidence that proper parental care is not immediately available may it adjudicate the child dependent. If such a finding is not made, custody must be given to the parents immediately.

If the court concludes that a child is dependent, it proceeds to the second stage of the hearing, the dispositional phase. Even a child who has been adjudicated dependent may not be separated from its parents unless the evidence presented establishes that such a separation is “clearly necessary.” Furthermore, “clear necessity for removal is not shown until the hearing court determines that alternative services that would enable the child to remain with [his or her] family are unfeasible.” In The Interest of K. B., supra, 276 Pa.Super. at 393, 419 A.2d at 515. One of the primary purposes of the Juvenile Act is to preserve the unity of the family whenever possible. Thus, we have stated that:

Even when there are inadequacies in the child’s home, the court should first consider ordering [the state agency] to take the steps necessary to instruct the parents in the skills needed, and provide follow-up supervision in the home, where feasible.

In The Interest of Whittle, 263 Pa.Super. 312, 316, 397 A.2d 1225, 1226 (1979). Therefore, an order placing a child in the custody of a state agency cannot properly be entered until the court has considered and rejected alternative dispositions which would allow the child to remain with his parents.

The evidence presented in the instant case in support of the allegation that Ryan was a dependent child was minimal. A doctor who first saw Ryan on September 4, 1980 testified that she observed at that time two bruises, one near Ryan’s right eye and one on his back, which his mother, Marjorie S., “had difficulty in explaining.” Appellant testified that she did not know what caused the bruises but that Ryan had fallen off a bed the previous day and may have sustained the bruises at that time. The doctor further testified that she had seen Ryan on a weekly basis between the time of the initial visit and the time of the hearing (about five weeks). When asked whether she had observed anything else that concerned her, the doctor replied:

No. I have to say that since I saw Ryan the time of the bruise [his mother] has been very good about keeping appointments and he has been clean. There has been no further bruises or anything of a suspicious nature.

A social worker testified that she was concerned about the care Ryan was receiving because “the father would not let [the mother] feed the baby when it woke up at night” and “they had the baby sleep in the bathtub.” Mrs. S. explained that her husband did not want her to feed the baby at night because they were trying to get the baby on a feeding schedule. As to the baby sleeping in the bathtub, Mrs. S. described how they had put his crib mattress in the tub in such a manner as to prevent Ryan from bumping against the sides. She explained that they tried this arrangement because they thought that if the baby was separated from them, the noise they made would be less likely to awaken the baby and vice versa, and since they only had one bedroom, putting the baby in the tub was the best way to get him out of the bedroom. Furthermore, they discontinued this practice as soon as the social worker told them that it was not a good idea.

Finally, a probation officer testified that he accompanied two police officers to the appellants' residence on October 9, 1981 (the night before the petition alleging dependency was filed) pursuant to a call from an unnamed source alleging that the child was not being cared for because the appellants were having a party “involving the use of alcohol and marijuana.” Upon arriving at the residence, the probation officer found the appellants and two friends playing cards and listening to music. He did see alcohol and marijuana but he said that he did not feel that the appellants were “out of the capacity.” In fact, he specifically stated that “they were capable of caring for the child.”

It is doubtful that this evidence standing alone would have been sufficient to support a finding that Ryan was, at the time of the hearing, “without proper parental care or control’.’ and therefore dependent. It is even more doubtful that it would support a finding that removing him from his parents’ custody was “clearly necessary.”

As stated above, we remand this case for reconsideration of the dependency petition. In view of the lapse of time since the original hearing there may be significant changes in the parties’ positions due to changed circumstances. The lower court shall therefore direct the parties to present evidence to reflect current circumstances. If the court finds that the evidence presented does not establish clearly and convincingly that Ryan would be without “proper parental care and control” if returned to his parents, then it must immediately order Ryan returned to his parents’ custody. If, on the other hand, the court finds that there is clear and convincing evidence that Ryan is dependent at the present time, then it must enter an order so stating and proceed to make a disposition that would be consistent with the principles discussed in this opinion.

It is important in this case, as in all custody cases, to obtain the speediest possible resolution. We therefore request the lower court to promptly conduct a hearing and render its final order.

Order vacated and case remanded for proceedings consistent with this opinion. Upon completion of those proceedings, a new appeal may be taken as provided by law.

DiSALLE, J., files dissenting statement.

DiSALLE, Judge,

dissenting:

I respectfully dissent. In my judgment when, as the majority opinion points out, the parents “had difficulty in explaining” injuries to the infant’s eye and back; had the child sleeping in the bathtub so that “the noise they made would be less likely to awaken the baby and vice versa”; and were found in possession of marijuana, they should not be entitled to the care, custody And control of their child.

      . Appellee contends that this appeal should be quashed as premature. The order cannot be considered final, appellee argues, since there was no finding of dependency and since the order states that the custody award is effective “until further order of the court.” The Juvenile Act, however, does not permit a court to temporarily remove a child from the custody of his parents following a hearing on a dependency petition unless a finding of dependency is made. A disposition placing a child in the custody of a state agency pursuant to 42 Pa.C.S.A. § 6351 must be preceded by a finding of dependency. The only other section of the Juvenile Act which allows a child to be placed in the custody of a state agency is § 6325 which only applies before the hearing on a dependency petition. The hearing held by the lower court in this case was clearly a hearing on the petition and thus' required an adjudication of dependency before a disposition could be made. Such an adjudication was not made and the order entered by the court was therefore improper. To hold, as appellee suggests, that it was not final and is not appealable until the lower court makes it final would frustrate the purposes of the Juvenile Act and prevent review of the lower court’s disposition indefinitely.

      . 42 Pa.C.S.A. § 6341(c).

      . 42 Pa.C.S.A. § 6302.

      . 42 Pa.C.S.A. § 6301(b)(1).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    440 A.2d 538
    Barbara SAUNDERS v. STATE FARM INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1981.
    Filed Jan. 19, 1982.
    Petition for Allowance of Appeal Granted June 1, 1982.

      Alan Dion, Philadelphia, for appellant.
    Richard C. Angino, Harrisburg, for appellee.
    Before HESTER, CAVANAUGH and DiSALLE, JJ.

       Decision was rendered prior to Di SALLE, J., leaving the bench of the Superior Court of Pennsylvania.

   CAVANAUGH, Judge:

The sole issue for our determination in this case may be stated as follows: Where an insured has received reimbursement for all of his medical expenses and lost earnings under the personal injury protection coverage contained in his no-fault insurance policy, may an arbitrator also make an award for the same medical expenses and lost earnings in addition to an award for pain and suffering as part of the insured’s recovery under the uninsured motorist coverage?

In this case the appellee, Barbara Saunders, was insured by the appellant, State Farm Insurance Company. The policy contained personal injury protection under the no-fault coverage and uninsured motorist coverage. According to appellant’s brief, the appellee paid two premiums, one for personal injury coverage and one for uninsured motorist coverage. The appellee was injured in a motor vehicle accident and the appellant paid her $2,478.00 for medical expenses and lost earnings under the personal injury protection within the no-fault provisions of the policy. The parties agreed to the appointment of an arbitrator, A. Arthur Hanamirian, Esquire, with respect to a dispute under the uninsured motorist coverage. Following a hearing the arbitrator awarded the appellee $9,987.00 representing an award of $7500.00 for pain and suffering and $2,487.00 for medical expenses and lost earnings. The court below denied the insurance carrier’s petition to modify the arbitrator’s award and granted the appellee’s petition to confirm the award.

The policy issued by the appellant to the appellee provided for no-fault coverage and stated:

What We Pay.

We will pay in accordance with the No-Fault Act for bodily injury to an insured, caused by accident resulting from the maintenance or use of a motor vehicle as a vehicle:

The policy also contained uninsured motorist coverage which stated:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

With respect to the uninsured motorist coverage the policy contained a set-off clause which stated the following:

2. Any amount payable under this coverage shall be reduced by any amount paid or payable to or for the insured:
a. by or for any person or organization who is or may be held legally liable for the bodily injury to the insured;
b. for bodily injury under liability, or no-fault coverages; or

Our first determination is whether the set-off provision in the uninsured motorist coverage is valid. A similar set-off provision in the uninsured motorist section was found to be invalid by a unanimous panel in Brader v. Nationwide Mutual Insurance Company, 270 Pa.Super. 258, 411 A.2d 516 (1979). In that case the set-off provision stated:

“Any amount payable to or for an insured under the Uninsured Motorist coverage of any policy will be reduced by the amount of any Personal Injury Protection benefits paid or payable, and any benefits that would have been paid or payable except for a deductible provision.”

270 Pa.Super. 260, 411 A.2d 517.

In the Brader case the decedent maintained an insurance policy which provided for the following coverage: family compensation benefits up to $5,000; no-fault benefits up to $5,000 for survivor’s loss and the first $1500 of funeral expenses; and uninsured motorist coverage up to $15,000. The insurance carrier paid the decedent’s estate the full amounts of coverage with respect to the family compensation benefits and the no-fault benefits of the survivor’s loss and funeral expenses for a total of $6500 but refused to pay the full amount of coverage provided in the decedent’s uninsured motorist provision. The insurance company desired to reduce the $15,000 payment under the uninsured motorist provision by the $6500 which had been paid under the no-fault provisions of the policy. This court held that the set-off provision was invalid. The court stated the issue involved in the case at 270 Pa.Super. 261, 411 A.2d 517 as follows:

Simply stated, the question presented by this case is whether the policy provision in issue is contrary to public policy and legislative intent, i.e., may an insurance company reduce the statutorily mandated minimum benefits of its uninsured motorist insurance provisions by setting off those amounts received by the insured under his no-fault coverage? We hold that it may not, and therefore affirm the order of the court of common pleas.

The court held that with reference to the Uninsured Motorist Act of August 14, 1963, P.L. 909, § 1, 40 P.S. § 2000 as amended that:

The only exemptions from the mandatory coverage of the act are to damages compensable through workmen’s compensation, to property damage and to “bodily injury sustained by the insured with respect to which the insured or his representative shall, without the written consent of the insurer, make any settlement with or prosecute to judgment any action against any person who may be legally liable therefor.”

270 Pa.Super. 262, 411 A.2d 518.

Concerning legislative intent the court stated:

Indeed, if the legislature intended to allow a dollar-for-dollar set-off of no-fault benefits against benefits payable under uninsured motorist coverage, it could have expressly so provided as it did in the case of the No-fault Act with respect to social security benefits (with exceptions) and workmen’s compensation benefits. See Act of July 19, 1974, P.L. 489, No. 176 § 206, 40 P.S. § 1009.206.

270 Pa.Super. 264, 411 A.2d 519.

The Brader case is not directly on point with our own since in Brader the denial of set-off did not necessarily result in double payment of survivor’s losses and funeral expenses as the total damages to the decedent’s estate exceeded the total amount of coverage provided under the decedent’s insurance policy.

Both the appellant and appellee rely on Brader. Appellant relies on the court’s statement in Brader that: “. .. the insured should be allowed to recover under the uninsured motorist provisions of his insurance policy (up to the policy’s limits) those actual damages suffered which exceed the amount of no-fault insurance benefits received or owing.” This quoted sentence must be read in the context of the preceding sentence which states: “We therefore hold that the exclusionary clause employed in appellant’s uninsured motorist policy allowing set-off of no-fault benefits received by the insured against benefits payable under the uninsured motorist policy is invalid.” 270 Pa.Super. 265, 411 A.2d 519. The appellee relies on Brader in that it holds the set-off provision similar to that found in the instant case to be invalid. We read the Brader decision to mean that a set-off clause which reduces benefits payable under the uninsured motorist coverage is invalid notwithstanding that in some cases the insured will receive recovery for economic detriment as lost wages and medical expenses under both the personal injury provisions of his no-fault policy and also under the uninsured motorist provisions of his policy.

The Uninsured Motorist Act provides:

(a) No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 of article XIV of “The Vehicle Code,” act of April 29, 1959 (P.L. 58), under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, Provided, that:
(d) In the event of payment to any person under the coverage required by this section, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.

Act of August 14, 1963, P.L. 909 § 1, 40 P.S. § 2000.

The Uninsured Motorist Act is very specific in the protection it grants to an insured who is involved in a motor vehicle accident with an uninsured motorist. Where there is a valid contract of insurance which contains uninsured motorist coverage an insurance carrier is obligated to compensate the insured for damages inflicted upon the insured because of the .conduct of the owner and/or operator of the uninsured motor vehicle except for three statutory exclusions: (1) Property damage; (2) bodily injury damages where the insured has settled or prosecuted to judgment any action against any person liable for such injuries without written consent of the insurance carrier and (3) any damage, the payment of which would be for the direct or indirect benefit of a workmen’s compensation carrier or any person who would qualify as a self-insurer under any workmen’s compensation law. State Farm Mutual Insurance Company v. Williams, 481 Pa. 130, 392 A.2d 281 (1978). It was also pointed out in State Farm Mutual Auto Insurance Company v. Williams that the uninsured motorist statute mandates a floor of minimum protection to be afforded to the owner or operator of a motor vehicle within the Commonwealth and that while the legislature has permitted enhancement of that minimum protection it does not permit a diminution of that protection below the statutory limits.

In State Farm Mutual v. Williams, a husband was driving his wife’s automobile when he was involved in an accident with an uninsured motorist. At the time of the accident the wife’s car was insured through State Farm Mutual Insurance Company. The husband carried insurance through the same company on his truck. The husband filed a claim against State Farm under both his and his wife’s uninsured motorist coverage. State Farm paid the husband the $10,-000 limit under the wife’s policy, but refused payment under the husband’s policy. The matter went to arbitration and the arbitrator denied the husband’s claim under the policy. Appeals to the court of common pleas and the Superior Court resulted in an affirmation of the arbitrator’s award. The Supreme Court remanded for appointment of a new arbitrator on the basis of Harleysville Mutual Casualty Company v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968) which held that where the loss exceeds the limits of one policy, the insured may proceed under other available policies up to the individual limits or to the amount of the actual loss.

Appellant relies on Harleysville Mutual Casualty Company v. Blumling, 429 Pa. 389, 241 A.2d 112, 115 (1968) to support its contention that the economic loss paid under the personal injury protection provisions of no-fault coverage cannot be included in an award under the uninsured motorist coverage. The court stated in the Harleysville case, 429 Pa. 395, 396, 241 A.2d 115:

We do not wish to imply that injured parties may be permitted to pyramid separate coverages so as to recover more than the actual loss. Such a ruling is not necessary to the decision of this case and we do not make it. We do hold, however, as did the court in Sellers, supra, that where the loss exceeds the limits of one policy, the insured may proceed under other available policies up to their individual limits or to the amount of the actual loss.

However, the issue in Harleysville was not the same as in the instant case. In this case we know that the appellant intended to set-off any amounts paid under no-fault coverage and expressly provided for the set-off of such payments. We also know that such a set-off provision is invalid.

Appellant also relies on Paxton v. State Farm Mutual Automobile Insurance Company, 17 Mercer County L.J. 121 (1979) which is directly on point as to its facts. In that case the plaintiff was involved in an accident with an uninsured motorist. The plaintiff’s uninsured motorist coverage in his policy issued by State Farm Mutual had a limit of $15,000. The court of common pleas held that the set-off provision in the insurance policy allowing set-off of no-fault benefits against uninsured motorist coverage was valid. The court of common pleas relied on State Farm Mutual v. Williams, 481 Pa. 130, 392 A.2d 281 (1978) and stated at 17 Mercer County L.J. 124:

[W]e believe the legislative intent, as expressed in the words of the uninsured motorist statute and as interpreted in Harleysville, is clear. The insured may recover uninsured motorists benefits: (1) if the injured party paid the premium of the policy and was the named insured, (2) if the recovery under the second uninsured motorists coverage was limited to actual damages, and (3) if the recovery is not limited by the statutory exclusions. 481 Pa. 143, 392 A.2d at 287.
To allow plaintiff a double recovery by awarding him damages under both portions of his policy would violate the second requirement set forth in State Farm Mutual Auto Insurance Company v. Williams, supra.

Even apart from the invalidity of the set-off clause we find that the court’s reasoning is not persuasive. In the Williams case the issue was whether an insured could collect under the uninsured motorist coverage provisions in a policy issued on a truck that he owned as well as on a policy covering a car owned by his wife which he was driving at the time of the accident. It was not involved in the set-off of benefits under no-fault coverage against payments due under the uninsured motorist coverage. Also, the court in Paxton apparently did not have the benefit of this court’s decision in Brader.

In Johnson v. National Mutual Insurance Co., 61 Pa.D. & C.2d 514 (1971), affirmed 220 Pa.Super. 793, 286 A.2d 448 (1972), the court held that $3,494.60 paid under a “family compensation” clause of an insurance policy could not be deducted from the $10,000 payable under the uninsured motorist coverage of the policy. The policy had a set-off provision in connection with the uninsured motorist coverage. The court relied on Harleysville Mutual Casualty Co. v. Blumling, supra, and stated at 61 Pa.D. & C.2d 518:

Blumling not only requires a liberal construction in favor of payment of uninsured motorists benefits, but it authorized, in effect, the collection of two separate uninsured motorists recoveries, indicating however that there would not be permitted a pyramiding of separate coverages beyond actual loss. We think that the instruction of Blumling is that, as a matter of statutory policy, respondent may not reduce or dilute the payments that are available to its insured under the uninsured motorists protection of the policy.

With respect to the double payment for lost earnings and medical expenses we have considered Amaradio v. Traveler’s Insurance Company, 276 Pa.Super. 189, 419 A.2d 159 (1980). In that case the issue was whether an insured could recover medical expenses under the medical payment section of his insurance policy when he had received an award including medical expenses by an arbitrator under the uninsured motorist coverage section of the same policy. The policy made it clear that if a claim was made for medical expenses under the medical payment clause of the contract and a claim for the same expenses was also made under the uninsured motorist clause that the carrier “shall be obligated to pay such expenses under only one of the clauses and not under both.” 276 Pa.Super. 192, 419 A.2d 161. This court held that the plaintiffs had recovered the entire amount of their damages under the uninsured motorist section and were not entitled to payment under the medical payment section of their policy. The court stated at 276 Pa. Super. 193, 419 A.2d 161:

The intent of 40 P.S. 2000, the so-called uninsured motorist law, was to protect people from the irresponsibility of operators of motor vehicles who cause injury to others but who carry no insurance. Blumling, supra. Its purpose was not to enrich persons who have fully recovered monetarily from an accident but who seek to obtain windfall profits from their own insurance carrier.

In Amaradio this court did not consider the validity of the set-off clause. In the case before us the set-off clause clearly has been found to be invalid.

Having determined that the set-off provision is invalid in this case, we must look to the remaining language of the uninsured motorist clause to determine whether the insurer must reimburse its insured for economic detriment. The applicable part of the clause provides:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.

When intrepreting a contract the intention of the parties must be determined. In a written contract the intention of the parties is manifested by the writing, and when the words are clear and unambiguous the intent is to be determined only from the express language of the agreement. Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973). See also Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir. 1979). This court stated in Blocker v. Aetna Casualty & Surety Company, 232 Pa.Super. 111, 114, 332 A.2d 476, 477-8 (1975):

The single issue for our determination will of course be resolved by our analysis of the terms and conditions of the insurance policy issued by the appellant. This analysis of an insurance policy, like the interpretation of any other written contract, is a question of law for the court. Bole v. New Hampshire Fire Insurance Company, 159 Pa. 53, 28 A. 205 (1895). The policy must be read in its entirety; it should be construed according to the plain meaning of the words used, so as to avoid ambiguity while at the same time giving effect to all of its provisions. Masters v. Celina Mutual Insurance Company, 209 Pa.Super. 111, 224 A.2d 774 (1965); Galvin v. Occidental Life Insurance Company, 206 Pa. Super. 61, 64, 211 A.2d 120, 122 (1965). If it is determined that the language of a policy prepared by an insurer is either ambiguous, obscure, uncertain or susceptible to more than one construction, we must construe that language most strongly against the insurer and accept the construction most favorable to the insured. Patton v. Patton, 413 Pa. 566, 573, 198 A.2d 578, 582 (1964); Flynn v. Allstate Insurance Company, 50 Pa.D. & C.2d 195, 199-200 (1970).

See also D’Allesandro v. Durham Life Insurance Co., 291 Pa.Super. 613, 436 A.2d 669 (1981).

Under the quoted provisions of the policy, the appellee is entitled to recover lost earnings and medical expenses from the appellant, as she would be entitled to recover these items from the uninsured motorist. In fact, the appellant does not contend that the appellee is not entitled to recover these items under the uninsured motorist provision, but that since she recovered them under the personal injury protection provision of the no-fault coverage, she should not be allowed to duplicate her recovery. Since the set-off provision is invalid she is entitled to recover her economic loss under the uninsured motorist provision notwithstanding that she has already recovered for these items under the personal injury protection coverage. Finally, we are not overly impressed with appellant’s argument that the appellee is recovering windfall damages. The appellant points out in its brief that the appellee paid a separate premium for her uninsured motorist coverage distinct from the premium that she paid for her no-fault coverage. Also, the legislature could have amended the Uninsured Motorist Act to provide for set-off of some or all payments made under the no-fault coverage of an insurance policy if it desired to do so.

Order affirmed.

      . We recognize that our decision places the insured in a better position vis-a-vis her insurance carrier than she would have been in had the other party involved in the accident been insured. Had that been the case the appellee would not have had the benefit of the uninsured motorist coverage and she would not have received duplicate recovery for the economic detriment. This consideration, however, does not dissuade us from the conclusion we have reached.


author: WICKERSHAM, Judge:

text:
    440 A.2d 544
    COMMONWEALTH of Pennsylvania, v. Michael VANWHY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 6, 1981.
    Filed Jan. 19, 1982.

      Jeffrey G. Velander, Stroudsburg, for appellant.
    James P. Gregor, Assistant District Attorney, Strouds-burg, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   WICKERSHAM, Judge:

Appellant, Michael Vanwhy, was charged in an information by the District Attorney of Monroe County that on or about November 8, 1980, he operated a 1974 motor vehicle while under the influence of alcohol. Further, that he operated said vehicle without having obtained a valid operator’s license and further that he failed to stop his vehicle at the scene of an accident near Dunn’s Tavern, East Strouds-burg, failed to render assistance to one Donald W. Middagh, Jr. and Brian Middagh, occupant of a vehicle operated by Donald W. Middagh, Jr., and failed to give his name, address and registration number all of which in violation of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. § 3731(a), § 1501(a), § 3742(a) and § 3744(a).

Thereafter, Michael Vanwhy, appellant, filed a pre-trial motion entitled “Petition for Writ of Habeas Corpus” challenging his arrest by an officer of the East Stroudsburg Police Department and a hearing was held thereon before Senior Judge Arlington W. Williams on December 16, 1980 in the court house at Stroudsburg, with Raymond P. Kash-imba, Esquire, public defender, appearing for Michael Van-why.

By order of court dated December 17, 1980, Senior Judge Williams denied and dismissed the “Petition for Habeas Corpus” and from such order Michael Vanwhy took the instant appeal to this court.

In Commonwealth v. Pollick, 420 Pa. 61, 215 A.2d 904 (1966), Justice (later Chief Justice) Eagen wrote:

Is this order appealable?

It is established beyond argument that an interlocutory order is not appealable, unless expressly made so by statute: Goldstein v. Stadler, 417 Pa. 589, 208 A.2d 850 (1965); Commonwealth v. O’Brien, 389 Pa. 109, 132 A.2d 265 (1957); Sullivan v. City and County of Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954); and, Petition of Quay, 189 Pa. 517, 42 A. 199 (1899).
It is likewise well established that as a general rule the defendant in a criminal case may appeal only from the judgment of sentence: Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956). For example, a defendant may not appeal from an order overruling a demurrer to the Commonwealth’s evidence: Commonwealth v. Kephart, State Treasurer (No. 1), 80 Pa.Super. 315 (1923); nor from an order refusing to quash an indictment: Commonwealth v. O’Brien, supra; nor from an order denying a request to suppress evidence: Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). As stated in the early case of Marsh v. Commonwealth, 16 S. & R. 318 (1827). ‘[I]t is time enough to permit him to arrest the course of the criminal law, when he has suffered actual injury.’ The issue here, therefore, is whether or not the Act of 1957, supra, creates an exception to the established rule and permits a defendant to appeal from an order (which is patently interlocutory) refusing his discharge after motion filed under the act. We conclude it does not.

Id., 420 Pa. at 63, 215 A.2d at 905-6.

We are not here concerned with exceptional circumstances and we are clearly involved here with an interlocutory order which is not appealable. The appeal is quashed and the record remanded to Monroe County for trial.

Appeal quashed.

      . Jeffrey G. Velander, public defender, on behalf of Michael Vanwhy appellant poses the question before us as follows:
      1. Did the Honorable Trial Court err in failing to grant Appellant’s Petition for Writ of Habeas Corpus, where the Police Officer who arrested Appellant did so beyond the boundaries of his jurisdiction?

        1 This rule is not inflexible and will yield in exceptional cases of great public interest to safeguard basic human rights. See, Commonwealth v. Haimbach, 151 Pa.Super. 581, 30 A.2d 653 (1943), and Commonwealth v. Kilgallen, 175 Pa.Super. 52, 103 A.2d 183 (1954). However, we are not here concerned with such ‘exceptional’ circumstances.


text:
    440 A.2d 545
    COMMONWEALTH of Pennsylvania, v. Vivian NICHELSON a/k/a William Hill, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1981.
    Filed Jan. 19, 1982.
    Petition for Allowance of Appeal Denied June 9, 1982.

      Joseph J. Dougherty, West Chester, for appellant.
    James P. MacElree, Assistant District Attorney, West Chester, for appellee.
    Before WICKERSHAM, McEWEN and POPOVICH, JJ.
   WICKERSHAM, Judge:

On or about October 2, 1980, Vivian Nichelson, the appellant, and Michael Marrero, co-defendant, were charged in Philadelphia County with kidnapping, unlawful restraint, unlawful use of credit cards, aggravated assault, simple assault, theft, receiving stolen property, criminal conspiracy (for kidnapping, robbery, aggravated assault, forgery and murder), forgery, robbery and criminal attempt homicide, prohibitive offensive weapons, violation of the Uniform Firearms Act and terroristic threats.

On or about October 21,1980, the appellant and co-defendant were charged in Chester County with criminal attempt homicide, aggravated assault, robbery, theft, receiving stolen property, violation of the Uniform Firearms Act, possession of instruments of crime, and criminal conspiracy to commit all of the above Chester County charges.

The incident in question allegedly occurred on September 11, 1980, when Edward McCarren was exiting his 1975 Cadillac in Philadelphia. He was approached by Marrero who produced a handgun and ordered Mr. McCarren to get back in his car. Shortly thereafter Nichelson entered the vehicle and drove out of Philadelphia to the Fort Washington interchange of the Pennsylvania Turnpike headed West. After the car was on the turnpike Marrero ordered the victim to place his wallet and personal belongings in a paper bag, which the victim did. At a point in Chester County, the car stopped and the victim was bound and gagged and placed in the woods. After a period of twenty minutes, the victim was approached by Marrero who produced a gun and shot the victim in the head. Marrero and Nichelson then took the victim’s car and returned to Philadelphia where they used a Sears credit card to obtain shoes and attempted to obtain jewelry, at which point Marrero was apprehended and within fifteen days Nichelson was also apprehended.

On February 17, 1981, trial commenced in Philadelphia. The jury returned guilty verdicts to all of the Philadelphia charges except possession of firearms without a license and unlawful use of credit cards on which the jury deadlocked.

On July 3, 1981, a Motion to Quash the Criminal Informa-tions in Chester County was filed and, on J uly 28, 1981, oral argument and briefs were presented to the Honorable Leonard Sugerman. On September 10, 1981, Judge Sugerman entered an order denying appellant’s request as to all infor-mations except criminal attempt homicide and criminal conspiracy.

On or about September 25, 1981, a timely notice of appeal to this court was filed contesting the order of Judge Sugerman.

Appellant first contends that the Chester County prosecution is barred by virtue of the former prosecution in Philadelphia County. There is no merit to this contention.

§ 110. When Prosecution Barred by Former Prosecution for Different Offense.
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:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(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; or
(iii) the same conduct, unless:
(a) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(b) the second offense was not consummated when the former trial began.

18 Pa.C.S. § 110.

The simple answer to the contention of appellant is found in Commonwealth v. Harris, 275 Pa.Super. 18, 418 A.2d 589 (1980), where we said:

Appellant cites 18 Pa.C.S.A., Section 110, as authority for his argument that the charges of terroristic threats should have been quashed because of the earlier convictions in Philadelphia County arising from this episode. He argues that the prosecution for terroristic threats should have been barred in Montgomery County even though the prosecution in Philadelphia was for different offenses because, the argument runs, he could have been convicted of terroristic threats in the Philadelphia prosecution. He argues that the prosecution for terroristic threats in Montgomery County places him in double jeopardy and that the burden was on the Commonwealth to prosecute for all offenses arising from one criminal episode at the first prosecution.
The terroristic threats for which appellant was convicted at his second trial all occurred in Montgomery County at the time Mrs. Hutchinson was forcibly pulled from appellant’s car into a nearby woods and threatened repeatedly with death, while appellant attempted to shoot her and then raped and stabbed her.
He was not charged with making terroristic threats in Philadelphia County and there is no evidence in this record that he made such threats in that county; but if he did, they were not the threats for which he was tried in Montgomery County.
The mandate of Section 110 of the Criminal Code that there cannot be a subsequent prosecution for any offense for which a defendant could have been convicted on the first prosecution carries the statutory qualification that the offenses must have been ‘within the jurisdiction of a single court.’ The Court of Common Pleas of Philadelphia County had no jurisdiction to try the appellant on the charge of making terroristic threats in Montgomery County: Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921 (1972); Commonwealth v. Mull, 316 Pa. 424, 426, 175 A. 418 (1934).

Id., 275 Pa.Super. at 23-24, 418 A.2d at 592.

Instantly, the victim was abducted at gunpoint from his Philadelphia residence, forced into the backseat of his car and driven into Chester County where he was bound, gagged, and abandoned. Some time thereafter, the defendants returned to the location of the victim, discussed killing him and thereafter the co-defendant Marrero shot the victim in the head. Miraculously, the seventy-five year old victim survived. In the initial Philadelphia trial, the defendant was tried for criminal conspiracy, robbery, theft by unlawful taking, kidnapping, receiving stolen property, recklessly endangering, terroristic threats, simple assault, carrying firearms on a public street, and credit cards. Convictions resulted in all but receiving stolen property, credit cards, and the firearms offense. Thus, as in Harris, the present defendant, previously convicted of criminal conspiracy, is charged with related acts, aggravated assault and robbery, which occurred solely in a different jurisdiction. As the court in Harris directed, regardless of the relationship of the offenses, the application of § 110 requires that the offense must have been within the jurisdiction of a single court. Here, such was not the case and the charges were properly brought in the county having jurisdiction over the respective offenses.

The second contention of appellant raises a double jeopardy question. The appellant argues that the double jeopardy guarantee:

‘. . . has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. . . . ’ North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 [23 L.Ed.2d 656] (1969).
The occurrence here was a single course of conduct. The mere fact that appellant stepped over the county line (as alleged) does not make this matter two [occurrences].

Brief for Appellant at 14.

Again, the answer to appellant’s contention is that the instant Chester County prosecution involves acts entirely separate and distinct from the offenses previously adjudicated in Philadelphia County and, therefore, is not barred by double jeopardy considerations. In Commonwealth v. Simeone, 222 Pa.Super. 376, 294 A.2d 921 (1972), we said:

One of the opinions delivered in Simmons v. Commonwealth, 5 Binney 617, 628-629 (1813) (Brackenridge, J., dissenting on other grounds) contains the earliest appellate recognition of this rule in Pennsylvania and provides an informative view of its historic foundation:
‘One county is as distinct from another, as one country from another, in respect of the right of jurisdiction. Personal actions follow the person, and there is a fiction of the contract being in the county where the person is . . . And there is no fiction in a criminal case so as to give jurisdiction. ... By the ancient law, ‘all offenses were said to be done against the peace of the county; contra pacem vice comitis,’ 1 Black. 117. And though Alfred, to keep within the bounds of the universal or common law, gave the control to the king’s own courts, in consequence of which offences were laid to be contra pacem domini regís, yet it still remained a principle, ‘that the trial of all causes civil and criminal must be in the very district where the cause of complaint arose,’ 4 Black 411. Fiction in civil cases .. . has dispensed with this as to actions purely personal, but in criminal never.’

Id., 222 Pa.Super. at 378, 294 A.2d at 922.

In a concurring opinion, Judge Hoffman said:

It is clear that where a defendant is tried for an offense by a court of competent jurisdiction, a second trial for the same offense would be a violation of the fifth amendment guarantee against double jeopardy, which has recently been held applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
The questions then before this Court are (1) whether appellant was tried twice for the same offense, and (2) if so, whether he was tried by a court of competent jurisdiction in the first trial.
“Offenses are not the same ‘for purposes of the double jeopardy’ clause of the 5th Amendment unless the evidence required to support conviction on one of the indictments would have been sufficient to warrant conviction on the other.”
. . . Jurisdiction in Pennsylvania, however, is only countywide, . . . Therefore, the evidence that would have sustained a conviction in Philadelphia County would not have been sufficient to prove that appellant had received stolen goods in Bucks County. The offenses for which appellant was tried in Bucks County are entirely separate and distinct from the offenses for which appellant was tried in Philadelphia.

Id., 222 Pa.Super, at 282-3, 294 A.2d at 923-925.

We have reviewed the third and final contention relating to the suggested applicability of the principle of collateral estoppel. This contention is meritless.

Order of the lower court is affirmed and the case remanded for trial with jurisdiction of this court relinquished.

      . Vivian Nichelson is represented on this appeal by Joseph J. Dough-erty, Esquire. Three questions are presented for our consideration:
      I. Did the trial court err in denying appellant’s motion to quash the information as violative of section 110 of the Pennsylvania Crimes Code?
      II. Did the trial court err in denying appellant’s motion to quash the information as violative of the double jeopardy clauses of the United States and Pennsylvania constitutions?
      III. Did the trial court err in denying appellant’s motion to quash the informations due to the application of the principal of collateral estoppel?
      Appellant summarizes his argument thereon as follows:
      The trial court erred to the prejudice of the appellant in not granting the requested Motion to Quash the Information. Such a ruling was in error because Section 110 of the Pennsylvania Crimes Code necessitate such a dismissal, the double jeopardy clauses of the United States and Pennsylvania Constitutions also required a dismissal, and the principal of collateral estoppel as applied to the case necessitated the granting of the motion. Therefore, the ruling of the trial court should be reversed and the appellant discharged.
      Brief for Appellant at 6, 10.


author: McEWEN, Judge:

text:
    440 A.2d 549
    COMMONWEALTH of Pennsylvania, v. Wayne PARENTE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 28, 1981.
    Filed Jan. 19, 1982.
    Petition for Allowance of Appeal Denied May 26, 1982.

      George H. Newman, Philadelphia, for appellant.
    Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before WICKERSHAM, McEWEN and WIEAND, JJ.
   McEWEN, Judge:

Appellant, Wayne Párente, was tried before a jury and found guilty of rape, involuntary deviate sexual intercourse, simple assault, and possession of an instrument of crime. He appeals, alleging prejudicial error in a number of judicial decisions and prosecutorial actions during the trial in the lower court. We will consider his allegations seriatim.

Appellant contends first that it was- error for the lower court to refuse to strike the victim’s testimony because her statement to the police had been lost by the police officer and was not available to defense counsel. Under Pa.R. Crim.P. 305(B)(2)(b), the recorded or substantially verbatim statements of eyewitnesses that the Commonwealth intends to call at trial must be available to defense counsel upon a motion for pre-trial discovery. Here, defense counsel properly requested statements made by prosecution witnesses as much as six months before trial. Attorneys for the Commonwealth advised defense counsel that if such notes existed, copies would be made available to him. The prosecutor who was assigned to the case for trial wás told of this agreement and she repeatedly attempted to contact Officer Upchurch, the policewoman who had made the notes in question. Having received no response from the police officer by the time jury selection commenced, the prosecutor subpoenaed Officer Upchurch to appear in court the following day. The officer appeared with the notes requested and showed them to the prosecutor who was in the midst of jury selection. The prosecutor requested Officer Upchurch to wait outside the Court Room for a break in the proceedings during which the notes would be copied. However, apparently misunderstanding the instructions, Officer Upchurch left City Hall and returned to police headquarters. When she arrived there, she realized that she had left a manila envelope containing the notes on her seat on the subway. The next morning, the prosecutor was informed of the loss and she attempted to determine if the envelope could be recovered. However, her efforts proved fruitless. The trial court and defense counsel were told of the loss and a hearing was held out of the presence of the jury.

It must be noted that by this time, the prosecutor’s direct examination of the victim had begun and defense counsel had been provided with the police investigative report and the handwritten notes of another police officer, which notes, although short, were taken at the same time as the missing notes. Further, Officer Upchurch had read over her notes on the day that she had lost them, and she testified as to their contents at the hearing.

As a result of this hearing, the trial court denied defendant’s Motion to Strike the victim’s testimony, but offered to grant defense counsel a continuance. This offer was refused. Nevertheless, the court recessed early to allow defense counsel a better opportunity to prepare a defense in light of the unexpected loss of the notes. The trial court also allowed defense counsel to explore the loss of the statement before the jury through an examination of both the police officers and the victim. The record shows that defense counsel did in fact present the circumstances of the missing notes and argue their import to the jury. Finally, the trial court instructed the jury that if they determined that the officer intentionally made the notes unavailable, they could infer that the notes would have been unfavorable to the prosecution.

Under Section (E) of Pa.R.Crim.P. 305, when it becomes apparent that a party has failed to comply with the provisions of the Rule, the trial court has broad discretion in choosing an appropriate remedy. It may order the party to permit discovery or inspection or, if, as here, this is not feasible, it may either grant a continuance, prohibit such party from introducing evidence not disclosed, or enter any other order that it deems just. Here, the trial court offered the defendant a continuance and also took other steps to insure that the defendant would not be unduly prejudiced by the loss of the notes.

Despite this clear compliance with the Rule, a new trial might still have been necessary if it had been shown that the nondisclosure of the notes had affected the fairness of the trial. See Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978). However, on the facts presented, it cannot be said that the loss of the notes denied appellant a fair trial. The presence of the police investigative report and the other police officer’s notes, the police officer’s testimony as to the contents of her notes, and the court’s instruction that the jury could infer that the notes would have been unfavorable to the prosecution, all combine to minimize the impact of the missing notes on appellant’s defense. Thus, the appellant was not harmed by the prosecution’s actions; and in light of the fact that striking the victim’s testimony would likely have resulted in termination of the entire prosecution, a penalty far too drastic for this violation of the Rule, the trial court’s refusal to so strike was not improper or erroneous.

Appellant contends next that trial counsel was ineffective for failure to object to several allegedly improper comments made by the prosecutor in her closing argument to the jury. The standards determining prosecutorial misconduct are well settled. It is undoubted that any irrelevant, unwise or otherwise improper remarks by the prosecutor do not necessarily amount to grounds for a new trial. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Ferguson, 270 Pa.Super. 184, 411 A.2d 241 (1979). A new trial is necessary only when, “[t]he unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974).

The first allegedly prejudicial comment of which the defendant complains was the prosecutor’s statement that the defense, in its summation, had raised “red herrings” and “phony issues.” However, it is clear that the prosecutor did not use these terms simply to characterize the defense, but went on to contend that defense counsel’s argument concerning a time discrepancy in the testimony of prosecution witnesses was a false issue because appellant had already conceded his presence in the victim’s apartment at the time of the crime. Thus, the prosecutor was merely responding to arguments advanced by defense counsel. There can be no doubt that such conduct is not improper. Commonwealth v. Stoltzfus, supra; Commonwealth v. Ferguson, supra; Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973), cert. denied, 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973).

Secondly, appellant contends that the prosecutor’s reference to the victim’s testimony as “the terrifying and horrifying account of September the 14th of 1978” and “the most horrendous moment and the greatest nightmare of her life” was prosecutorial misconduct mandating a new trial. A similar claim was advanced in Commonwealth v. Ferguson, supra, where the prosecutor referred to a “night of terror” for the rape victim. There, this court found that “the Commonwealth’s inference was factually supported and a refutation of counsel’s characterization of the victim as a willing and voluntary participant.” Commonwealth v. Ferguson, supra, 270 Pa. Super, at 188, 411 A.2d at 243. Here, also, appellant had claimed that the victim was a willing and voluntary participant and the prosecutor’s comment served as a refutation of that claim. Further, the prosecution’s inference was not unwarranted. The facts demonstrate its validity. The victim was at home in the early morning hours, asleep in the room she shared with her two year old nephew. She was suddenly awakened by the presence of the appellant who placed a hand over her mouth. Appellant, who was masked with panty-hose and armed with a knife, took her into another room and raped her vaginally, anally and orally. It is frivolous to argue that anyone brutalized so foully did not suffer a nightmare of terror and horror. Further, it must be noted that where, as here, the prosecution’s characterizations are factually supported by the evidence, Pennsylvania courts have repeatedly rejected claims of prosecutorial misconduct, even when the statements complained of were far more emotionally charged than those of which appellant complains here. See Commonwealth v. Ferguson, supra, 270 Pa.Super. at 189, 411 A.2d at 244.

Appellant’s third allegation of misconduct concerns the prosecution’s comments on the testimony of appellant about the rape. The prosecutor referred to the “arrogance” of appellant on the stand and also stated: “I suggest to you, Ladies and Gentlemen, that is all a lot of bologna, and that what he is telling you does not have the ring of truth.” We believe that such a comment, which some may consider intemperate, is not necessarily so prejudicial as to warrant a new trial. By this statement, the prosecutor urged the jury to reject the testimony of appellant that the intercourse involved was completely consensual. This court has refused to label as misconduct language that was far more caustic and emotional. See Commonwealth v. Middleton, 269 Pa.Super. 17, 409 A.2d 41 (1979). (Prosecutor’s statement that the testimony of defendant “isn’t worthy of my comment, let alone worthy of your belief” was found not to warrant a new trial.) Further, the reference of the prosecution to the arrogance of appellant was not reversible error in that this comment referred solely to the demeanor of appellant on the stand. It did not go to the veracity of the testimony of appellant, but went merely to his behavior, which behavior was readily observable by each of the twelve jurors.

Finally, appellant alleges prosecutorial misconduct in the conclusion of the summation of the prosecution to the jury. The prosecutor ended her summation as follows:

The evidence is overwhelming against the defendant, Wayne Párente, for all of the crimes that have been charged against him and I suggest, Ladies and Gentlemen, that when you go out to deliberate, you go out and do your duty in this case, that you return with a fair verdict. I suggest to you that the fair verdict in this case is Guilty on all charges. . . .

It is unquestioned that a prosecutor’s assertion of a personal belief in a defendant’s guilt is reversible error, Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); Commonwealth v. Ashmore, 266 Pa.Super. 181, 403 A.2d 603 (1979). However, it is clear that here the remarks of the prosecutor reveal no personal assertion of belief in the guilt of appellant. In fact, a fair reading of those statements indicates that the determination of the guilt or innocence of appellant was for the jury. We believe that these remarks were neither improper nor unduly prejudicial. Therefore, these claims of prosecutorial misconduct are without merit.

In connection with the foregoing allegations of prosecuto-rial misconduct, appellant argues collaterally that he was denied the effective assistance of counsel by virtue of the failure of trial counsel to object to the allegedly improper and prejudicial remarks. This contention collapses as a result of our conclusion that the claims of prosecutorial misconduct are without merit. Trial counsel cannot be held ineffective for failure to pursue a meritless argument. See Commonwealth v. Smith, supra. Therefore, trial counsel of appellant was not ineffective for failing to object to those comments of which the appellant now complains.

Appellant further alleges misconduct in the comment of prosecutor upon the fact that defense counsel did not question Officer Upchurch as to the contents of her missing notes. Defense counsel promptly objected to the remark and the Court provided a curative instruction to the jury. We have reviewed the instruction delivered by the Court and find it to be an adequate curative instruction. Therefore, we conclude that there is no merit to the assertion of appellant that defense counsel was ineffective for failure to object to this instruction.

Appellant contends further that defense counsel was ineffective for failing to ask the trial court to define the term, “serious bodily injury”, which term was used in the Court’s rape charge to the jury. In defining rape and involuntary deviate sexual intercourse, the trial court charged that the Commonwealth must show that the victim submitted to appellant through forcible compulsion. The Court then defined forcible compulsion as the threat of serious bodily injury or death, but failed to define “serious bodily injury.” Appellant contends that his trial counsel was ineffective for failing to object to this lack of definition.

It is well settled that in determining the effectiveness or ineffectiveness of trial counsel, the reviewing court must first determine whether the course chosen by counsel had some reasonable basis in effectuating a defense. Counsel is deemed effective if any reasonable basis exists for his course of conduct. Commonwealth v. Brightwell, 492 Pa. 424, 424 A.2d 1263 (1981); Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980). Here, a reasonable basis for failure of defense counsel to object to the charge of the court is easily discerned.

The charge of the trial court to the jury required them to find either serious bodily injury or the threat of serious bodily injury before they could find appellant guilty of rape or involuntary deviate sexual intercourse. However, this Court has held that the level of force or threat of force necessary to support a conviction of rape or involuntary deviate sexual intercourse need not rise to the level of serious bodily injury. Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978). Thus, the charge of the trial court to the jury was extremely favorable to the defense, and it requires no great hindsight to see that defense counsel was reasonable and not ineffective in not challenging so favorable a charge.

Appellant next asserts that it was a prejudicial error for the lower court to allow the Commonwealth to re-open its direct examination of the victim. We are not persuaded that the contention of appellant has any merit. Because of various unavoidable delays, had the trial court not permitted the Commonwealth to re-open its examination, nearly forty-eight hours would have elapsed between the direct and the cross examination of the victim.

A decision of the trial court whether to allow a party to be recalled is left to the discretion of the trial court and will not be reversed unless it constitutes a gross abuse of discretion. Commonwealth v. Crosby, 450 Pa. 68, 297 A.2d 114 (1972); See also Commonwealth v. Deitch Co., 449 Pa. 88, 295 A.2d 834 (1972); Commonwealth v. Ridgely, 243 Pa.Super.Ct. 397, 365 A.2d 1283 (1976). Here, we cannot say that the trial court abused its discretion in allowing the Commonwealth to reopen the testimony of the victim.

Appellant further contends that trial counsel was ineffective during the voir dire examination of the prospective jurors on two occasions: (1) when he failed to object to the trial court’s use of the word “victim” and (2) when he challenged a prospective juror in open court. We find these contentions to be without merit.

The trial court used the word “victim” in its instructions to the veniremen. The court stated that the prosecutor would tell the panel when the incident occurred and the names of the victim, the defendant, and the witnesses who might be called. It seems highly improbable that the single reference of the court to the “victim” long before jury selection even began was so prejudicial to the appellant that a new trial is required, especially in light of the thorough instructions of the court on the presumption of innocence, the Commonwealth’s burden of proof, and the position of the court of neutrality. Therefore, defense counsel cannot be deemed ineffective for failure to draw attention to what was at most a fleeting characterization on the part of the trial court.

Defense counsel’s challenge for cause involved a prospective juror who had recently accepted, but not yet begun, a position as a typist in the United States Attorney’s office. Counsel’s challenge was overruled in open court, and the juror was seated. Where, as here, the open court challenge was rooted, not in an alleged bias of the prospective juror, but in a possible relationship conflict, it is unlikely that such a challenge would engender prejudice on the part of the challenged juror, so that such an allegation is wholly speculative and, thus, trial counsel cannot be deemed ineffective for failure to guard against it.

Finally, appellant contends that he is entitled to a vacation of judgment and a remand for resentencing because the trial court failed to state on the record its reasons for imposing sentence in violation of Pa.R.Crim.P. 1405(b). However, since appellant failed to raise this claim at sentencing or in a motion for reconsideration of the sentence, any objection to the failure of the trial court to state its reasons on the record is deemed waived and we do not consider it. Commonwealth v. Turecki, 278 Pa.Super. 511, 420 A.2d 658 (1980); Commonwealth v. Morris, 273 Pa.Super. 477, 417 A.2d 748 (1979).

Therefore, the judgment of sentence of the lower court is hereby affirmed.

      . Appellant further alleges as error the conduct of the trial court at the hearing outside the presence of the jury, and its refusal to allow defense counsel to call the prosecutor as a witness before the jury. The first of these claims, that the court erred in cutting off cross-examination of the prosecutor at the hearing, was not raised in appellant’s post-trial motions and is, therefore, waived. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). The second claim, that the appellant was prejudiced by not being allowed to call the prosecutor as a witness to give testimony concerning the loss of the notes is without merit. Appellant was able to fully explore the circumstances behind the loss of the notes in his questioning of Officer Upchurch. Therefore, his inability to question the prosecutor caused him no harm.

      . Appellant contends also that the trial court erroneously failed to define terms in its assault charge to the jury. However, the assault conviction is merged into the rape conviction and, thus, we consider only the charge as to rape.

      . Appellant does not contend that the trial court’s charge was erroneous. He argues merely that it was undefined.

      . Appellant also claims prejudice by two other allegedly erroneous evidentiary rulings by the trial court. However, we do not here consider these claims because, not being raised in the post-verdict motions of appellant, they are deemed waived. Commonwealth v. Gravely, supra.


author: WIEAND, Judge:

text:
    440 A.2d 556
    COMMONWEALTH of Pennsylvania, v. Daniel John WESTERFER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1981.
    Filed Jan. 19, 1982.

      Frederick W. McBrien, III, Norristown, for appellant.
    David M. McGlaughlin, Assistant District Attorney, Nor-ristown, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

On September 19, 1979, between the hours of 6:00 a. m. and 5:00 p. m., the residence of George Herman at 1321 Arrowmink Road, Villanova, Lower Merion Township, Montgomery County, was burglarized. Less than one mile from the Herman residence, on the same day, between 2:45 p. m. and 3:45 p. m., the home of Robert P. Barry at 1400 Lafayette Road, Lower Merion Township, was also burglarized. Latent fingerprints were discovered in both homes and lifted by the Lower Merion Township police for future comparison.

One week later, on September 25, 1979, Daniel John Westerfer was arrested in Lower Merion Township, Montgomery County, and charged with offenses committed in Radnor Township, Delaware County. Immediately following his arrest, Westerfer was fingerprinted. A subsequent comparison of appellant’s fingerprints with those found in the Herman and Barry residences disclosed that they were identical. On December 5, 1979, Detective William C. Boegly of the Lower Merion Township Police Department obtained a warrant for Westerfer’s arrest. It was executed on December 6, 1979, at the Montgomery County Prison. Westerfer was subsequently tried and convicted of burglarizing the Herman residence. Post trial motions were dismissed, and a sentence of imprisonment of not less than 7V2 years nor more than 15 years was imposed. This direct appeal followed.

Appellant’s first contention is that his arrest on December 6, 1979, should have been quashed because the Commonwealth failed to deliver to him a copy of the affidavit of probable cause which was the basis for the arrest warrant. He concedes that the Rules of Criminal Procedure contain no such requirement but argues that arrest warrants and search warrants serve so similar a purpose that the rules applicable to the latter should also be applied to the former. It follows, he argues, that there should be applied to the execution of arrest warrants the requirement of Pa.R. Crim.P. 2008(a). This rule provides:

“A law enforcement officer, upon taking property pursuant to a search warrant, shall leave with the person from whom or from whose premises the property was taken a copy of the warrant and affidavit(s) in support thereof, and a receipt, for the property seized. A copy of the warrant and affidavit(s) must be left whether or not any property is seized.”

Appellant’s argument must be rejected. It is not for this Court to rewrite the Rules of Criminal Procedure and add requirements for the execution of an arrest warrant which the Supreme Court has deemed unnecessary.

Moreover, the analogy suggested by appellant is defective. The constitutional requirements for a valid arrest can readily be distinguished from the constitutional requirements for a lawful search. Warrantless searches are per se unreasonable absent “exigent circumstances,” Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). Unlike a search warrant, an arrest warrant is not a constitutional prerequisite to an arrest. United States v. Miles, 468 F.2d 482, 486 (3rd Cir. 1972). The only constitutional requirement for a valid arrest for the commission of a felony is that the arresting officer have probable cause to believe that the person arrested committed it. United States v. Watson, 423 U.S. 411, 423-24, 96 S.Ct. 820, 827-28, 46 L.Ed.2d 598, 608-09 (1976), reh. denied, 424 U.S. 979, 96 S.Ct. 1488, 47 L.Ed.2d 750 (1976); Draper v. United States, 358 U.S. 307, 310-311, 79 S.Ct. 329, 331, 3 L.Ed.2d 327, 330 (1959). This Court previously declined “to adopt a rule that would require copies of warrants to be issued to all police officers or allow only the police officer in possession of a warrant to make a legal arrest,” Commonwealth v. Gladfelter, 226 Pa. Superior Ct. 538, 540 n. 3, 324 A.2d 518, 519-520 n. 3 (1974). We will not now adopt a rule requiring both a warrant and an affidavit of probable cause to be delivered to an arrestee by the arresting officer. Appellant’s argument that his arrest on December 6, 1979, should be quashed is without merit.

As a general rule, “the Commonwealth cannot introduce evidence of a different crime committed by the defendant because the fact of commission of one crime is not proof of the commission of another, and because such evidence is so prejudicial that it strips a defendant of the presumption of innocence. Evidence of other crimes is admissible, however, when the evidence tends to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or, (5) the identity of the person charged with the crime on trial. In other words, evidence of a prior criminal act is admissible where there is such a logical connection between the prior criminal act and the crime currently on trial that proof of one naturally tends to show that the accused is the person who committed the other.” Commonwealth v. Brown, 280 Pa.Superior Ct. 303, 307, 421 A.2d 734, 736 (1980) (citations omitted).

The evidence of the Barry burglary was so closely linked to the Herman burglary that it became part of a common scheme or plan of which the Herman burglary was one part. The two offenses were committed the same day less than a mile apart. In addition to the date and location of the two burglaries, it was shown that both homes had been professionally ransacked; in both instances the valuables had been carried away in pillow cases; and in both residences, silver plate objects had been left behind while solid silver items had been taken. Most significantly, appellant’s fingerprints were found at the sites of both burglaries. Finally, cigarette ashes were left in both homes, and a Salem cigarette butt was found in the Barry home. Appellant was shown to smoke Salem cigarettes.

This correlation of details between the two burglaries, including the fingerprint evidence, established a “logical connection” between the two crimes. Evidence of the Barry burglary, therefore, was properly admitted in the trial of appellant for the Herman burglary. See and compare: Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955); Commonwealth v. Bastone, 262 Pa.Superior Ct. 590, 396 A.2d 1327 (1979).

Finally, appellant complains that the trial court refused to hear a motion to suppress the fingerprint exemplars taken from appellant on September 25, 1979, on the grounds that his arrest had been illegal. The Commonwealth concedes that the trial court refused to hear testimony pertaining to the lawfulness of the arrest, holding that the issue had been waived by appellant’s failure to challenge the lawfulness of the arrest in the criminal proceeding commenced against him in Delaware County. This was error.

In Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the Supreme Court held that fingerprint evidence was subject to the proscriptions of the Fourth and Fourteenth Amendments of the Constitution. Consequently, fingerprint exemplars obtained as a result of an unlawful arrest and detention are subject to the exclusionary rule and must be suppressed. Compare: Commonwealth v. Lowenberg, 481 Pa. 244, 253, 392 A.2d 1274, 1278 (1978); Commonwealth v. Jefferson, 445 Pa. 1, 8, 281 A.2d 852, 856 (1971).

Appellant’s right to challenge the lawfulness of the detention during which his fingerprints were taken in the instant proceedings was not waived by his failure to challenge the lawfulness of his arrest in the criminal proceedings brought against him in Delaware County. The two proceedings were separate and had been commenced in different jurisdictions. Neither appellant nor his Montgomery County counsel was bound by the strategy adopted or the oversights committed by appellant or his counsel in Delaware County.

We are constrained to conclude, therefore, that the trial court should have heard evidence pertaining to appellant’s pre-trial motion to suppress the fingerprint exemplars obtained from him following his arrest and detention on September 25, 1979.

For this reason, we vacate the judgment of sentence and remand the record to the trial court for an evidentiary hearing on appellant’s pre-trial application to suppress fingerprint evidence on the grounds that it was the fruit of an unlawful arrest and detention. If the trial court determines that the challenged evidence was obtained under constitutionally permissible circumstances, it should reinstate the judgment of sentence and appellant may file a new appeal. However, if the trial court determines that the challenged evidence is subject to suppression, then a new trial shall be granted.

It is so ordered.

      . Several months after argument of this appeal, the Commonwealth filed an application to submit a post-argument communication in the nature of evidence presented in another, separate proceeding. This evidence was not a part of the record in the instant case and apparently had not been considered by the trial court in these proceedings. This was an improper request and was denied.


text:
    440 A.2d 559
    Herbert E. HAZELL v. SERVOMATION CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1981.
    Filed Jan. 19, 1982.

      David P. Baker, York, for appellant.
    Carl H. Cordes, York, for appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

This is an appeal from a judgment entered following a non-jury trial which resulted in a verdict for appellee in his action to recover commissions earned pursuant to a compensation agreement. At issue is how much of a guaranteed annual draw is to be deducted from commissions to determine the net compensation to which an employee is entitled upon termination of his employment. The court en banc held that only a pro-rated portion was deductible from earned commissions in order to determine compensation at the time of terminating employment. We agree and affirm.

Herbert E. Hazell, the appellee, was employed by the appellant, Servomation Corporation, as an executive sales representative. The sales incentive compensation plan, by which appellee’s compensation was determined, provided for the payment of commissions and a guaranteed draw. Specifically, the agreement provided in paragraph III--C as follows:

“Compensation due will be determined by totaling commissions due at any pre-determined point in time and deducting the amount of annual draw. For the purposes of calculation, and to prevent disproportionate commission payments, the total annual draw of the sales representative will be assessed against his commission payments in one lump sum of [sic] the beginning of each calendar year. If a sales representative begins employment after the start of the calendar year, his draw will be computed in ratio to the unexpired portion of the year.”

With respect to the termination of employment, the agreement, in paragraph III—I, provided specifically as follows:

“In the event the Executive Representative leaves the Division or territory to which he is assigned for any reason (termination, transfer, promotion, death, etc.) prior to December 31, employee will be paid earned incentive [commissions] only if it exceeds his guaranteed draw as of his final date of employment.” (Italics added.)

Hazell’s “annual draw” in 1974 had been established at $13,500. He terminated his employment on July 14, 1974, having earned commissions that year which the trial court found to be in the amount of $18,516. At the time of terminating his employment, appellee had been paid a draw of $7,216.88. Appellant contended in the trial court that the full annual draw of $13,500 had to be deducted from appel-lee’s earned commissions in order to determine the amount of compensation remaining due to appellee on July 14. The trial judge agreed. The court en banc reversed. It unanimously sustained appellee’s exceptions and held that only $7,216.88 should be deducted in order to ascertain the compensation due.

In construing the parties’ agreement, we are required to read the contract as a whole and interpret each part with reference to the whole, so as to give effect to its true purpose. In so doing, specific provisions ordinarily will be regarded as qualifying the meaning of broad general words in relation to a particular subject. Minnotte Appeal, 411 Pa. 492, 496, 192 A.2d 394, 396 (1963); Pritchard v. Wick, 406 Pa. 598, 602, 178 A.2d 725, 727 (1962) quoting City of Philadelphia v. Philadelphia Transportation Company, 345 Pa. 244, 250, 26 A.2d 909, 912 (1942); First National Bank of East Conemaugh v. Davies, 315 Pa. 59, 63, 172 A. 296, 297 (1934).

A straightforward reading of the specific termination provision in the contract would seem to confirm the court en banc’s interpretation. Appellant contends, however, that “guaranteed draw” must be equated with “annual draw.” It argues further that the phrase “as of his final date of employment” refers to the words “if it [commissions] exceeds guaranteed draw” and does not modify “guaranteed draw” alone. These contentions cannot prevail. They seek to torture the clear language of sub-section I beyond recognition and, in so doing, destroy the simplicity and basic fairness of the compensation plan.

The intention of the parties' is clear. Upon termination of employment, the salesman is entitled to commissions earned to the extent that earned commissions exceed that part of his guaranteed draw paid to him “as of his final day of employment.”

However, if we assume, arguendo, that the language of the contract is ambiguous and susceptible of two constructions, “one of which makes it fair, customary and such as prudent men would naturally execute, while the other makes it inequitable, unusual or such as reasonable men would not likely enter into, the interpretation which makes a rational and probable agreement must be preferred.” Consolidated Tile and Slate Company v. Fox, 410 Pa. 336, 339, 189 A.2d 228, 229-230 (1963) quoting Wilkes-Barre Township School District v. Corgan, 403 Pa. 383, 386, 170 A.2d 97, 98-99 (1961); Heidt v. Aughenbaugh Coal Company, 406 Pa. 188, 192, 176 A.2d 400, 401-402 (1962); Pritchard v. Wick, supra, 406 Pa. at 603, 178 A.2d at 728. This is particularly true where, as here, the unusual and inequitable interpretation is urged by an employer who prepared an agreement, which it then required employees to sign. Marcin v. Darling Valve and Manufacturing Company, 259 F.Supp. 720, 724 (W.D.Pa. 1966); Unit Vending Company v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1936); Betterman v. American Stores Company, 367 Pa. 193, 203, 80 A.2d 66, 73, cert. denied, 342 U.S. 827, 72 S.Ct. 49, 96 L.Ed. 625 (1951); West v. MacMillan, et al., 301 Pa. 344, 349, 152 A. 104, 105 (1930).

We reject appellant’s suggestion that the parties intended an employee’s right to commissions to be reduced at the termination of his employment by a draw which had not been paid to the employee and which the employer could not be required to pay. Such an interpretation would not only be absurd but would make paragraph III-I a meaningless part of the agreement.

If the employer had intended to encourage continued employment by penalizing mid-year terminations, as appellant argues, this result could have been achieved by language that was clear and unambiguous. It is significant that this was not done.

Paragraph III-C, as the court en banc observed, was intended “to prevent disproportionate commission payments.” Otherwise, “if large commissions were earned by an executive representative early in any given year, with only the draw actually paid deducted, then if few commissions were earned during the balance of the year, the commissions paid over the year may not exceed the annual draw but still commissions would have been paid. This would amount to an overpayment of the employee.” This interpretation seems to be in accord with the intention of the parties as expressly set forth in their agreement. It permits also that paragraph III—I be given a reasonable and equitable interpretation.

Appellant also contends that the trial court erred in its determination of the amount of commissions due. Specifically, it contends that commissions on a re-negotiated contract were not earned until the new sales contract went into effect. The trial court found, however, that commissions became due when the new contract had been successfully negotiated, even though the new contract might go into effect at a later date. The trial court was clearly correct. “Pennsylvania follows the general rule that a person employed on a commission basis to solicit sales orders earns or is entitled to his commissions when the order is accepted by his employer.” Marcin v. Darling Valve and Manufacturing Company, supra at 723 quoting Wilson v. Homestead Valve Manufacturing Company, 217 F.2d 792, 798 (3rd Cir. 1954); Republic Foreign Products Co. v. Southwark Foundry & Machine Company, 269 Pa. 522, 525, 113 A. 74, 78 (1921).

Judgment affirmed.

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

      . This becomes even clearer if we assume that an executive representative leaves the division because of promotion to a salaried, supervisory or management position within appellant’s organization.