author: CERCONE, Judge: WIEAND, Judge,

text:
    481 A.2d 1194
    Jeanne E. LITTLE, Appellee v. YORK COUNTY EARNED INCOME TAX BUREAU, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1983.
    Filed Aug. 17, 1984.
    Petition for Allowance of Appeal Granted Feb. 12, 1985.

      Steven M. Carr, York, for appellant.
    Daniel W. Shoemaker, York, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   CERCONE, Judge:

At the time of trial in this case, appellee Jeanne E. Little was forty-three years old and an employee of the phone company in York County. Her employer withheld her wage tax every year and there is no dispute that Little was in no way delinquent in the payment of her local wage tax. Contrary to her previous practice of engaging H & R Block to prepare her tax returns, Little accepted the offer of her friend to do her taxes with her for the 1978 tax year. Little had moved in the middle of 1978 from Spring Grove to Red Lion School District. She had not received a form in the mail for the filing of her local taxes, so, finding the telephone number of appellant York County Earned Income Tax Bureau in the phone book under tax information, she called the Bureau. (The Bureau was described at trial as a non-governmental, profit-making tax collection service for certain municipalities and school districts.) An employee of the bureau spoke with her on the phone and told her that she would send Little the necessary form. She informed Little that she should fill out one form and that her move from one district to the other should be entered on the back of the form. Little was erroneously told to return the completed form to the Bureau. What she actually should have done was to send a return also to Spring Grove School District. Little sent the return to the Bureau, but, unknown to Little, Spring Grove district was not serviced by the Bureau and that district never received a copy of her return. So, to Spring Grove, Little appeared to be in default of the local tax laws which required her to file a tax return, even though the proper amount of tax monies had been withheld by her employer.

Then, in early April of 1980, Little was at home with her son and some friends when she was arrested for failure to pay her taxes. She was made to go to Magistrate Sam Hill’s office. When she was asked how she pleaded, she said she entered no plea, although she had explained to the constable at her home that all her taxes had been withheld and returns filed. The Magistrate set her bond at $500.00 cash bail and required that it be paid that night in cash. As neither Little or her friends had that much cash on them, Little was committed to the County Jail. Her brother retained a lawyer for her and the lawyer visited her at the jail the next evening. That was the day before Good Friday, which was a court holiday, and the lawyer informed Little that he could not get her released until Monday. Little was released on Monday evening, after having spent five days in jail. She described her experience as outrageous, uncalled for, and something that was “more likely to happen in Russia.” She testified to being denied her allergy medication, to being made to share space with women who had been charged with felonies, to inadequate food, clothing and sleeping quarters, to mistreatment by jail matrons, and to other indignities. The charges were eventually dismissed against her.

Little brought suit against the York County Earned Income Tax Bureau in both contract and tort. The court sustained the demurrer as to the contract cause of action, but submitted the case to the jury on a theory of negligent representation on the part of the Bureau. It instructed the jury that they were to decide whether the Bureau caused the incarceration of Little, or whether Little herself acted unreasonably in the course of events. Under the Restatement of Torts, 2d, § 905, the court instructed the jury that they could award Little damages for humiliation. The jury returned a verdict in favor of Little in the amount of $20,361.05. Twenty thousand ($20,000.00) represented damages for her humiliation, and $361.05 included attorney’s fees and court costs. After denial of motions for judgment N.O.V. and/or a new trial, judgment was entered.

On appeal, the Bureau argues that the lower court erred in refusing its post-verdict motions because Little failed to prove that her experience in the York County Jail was proximately caused by the Bureau; that Little was not entitled to damages for her mental distress; and that the verdict was excessive. We affirm.

Appellant compares the chain of causation in this case to a Rube Goldberg contraption. It cites the Restatement of Torts, 2d, § 435(2) that essentially states that when it appears to the court highly extraordinary that the harm should have been caused by the actor’s conduct, that, it is then not the legal cause of the harm. Appellant asserts that the trial judge ignored the

“separate, independent and unforeseeable events that plaintiff would fail to receive the first class mail notice from Spring Grove that she had not filed the requisite return, that she would not pick up the certified letter at the Post Office containing the same important notice, and that no one in her family had time to pick it up either. These events can hardly be said to have been set in motion as natural or probable consequences of appellant’s negligence, nor can the highly extraordinary event that she was not able to post bail on the evening of April 2, 1980, when she was arrested. It is totally unforeseeable that a woman of mature age, good reputation, steady employment, and solid property, arrested on such a trivial charge, would not be released on her own recognizance or unable to post in short order such a modest bail, or unable to at least obtain a bail bond.”

Appellant also argues that the advice of Little’s attorney that he could not get her out of prison until after the weekend must be regarded as a superseding cause of her injury, relieving the Bureau of any liability.

We are guided in our review by certain well-established principles of tort law. Initially, a distinction is traditionally drawn between foreseeability as appellant has argued it and proximate cause. Foreseeability is not an element to be considered in determining whether negligent conduct was the proximate cause of an accident, but it is an element of determining whether an actor’s conduct was negligent. Fredericks v. Castora, 241 Pa. Superior Ct. 211, 360 A.2d 696 (1976). In Lerro v. Thomas Wynne, Inc., 451 Pa. 37, 301 A.2d 705 (1973), an oil company was found to be liable to plaintiffs who bordered a stream into which oil had seeped because of the Company’s failure to inspect its underground oil tanks. Our Supreme Court found that reasonable care would have included such inspections, and, thus, the remote harm to plaintiffs was caused by the negligent conduct of the defendant. It found that the harmful consequences could reasonably have been foreseen and thus prevented by reasonable care.

Appellant relies on Restatement of Torts, 2d, 435(2), Foreseeability of Harm or Manner of Its Occurrence; § 2 states that an actor’s conduct may be held not to be a legal cause of harm ... [when] it appears to the court highly extraordinary that it should have brought about the harm. However, § 1 of that same Section 435 states that “if the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.”

“[T]he court, knowing that such a force has intervened may see nothing extraordinary either in its intervention or in the effect which it has upon the future development of the injurious results of the defendant’s conduct. This is particularly important where the intervening force is supplied by the act of a human being or animal, which is itself a reaction to the stimulus of a situation for which the actor is responsible.”

In the instant case, the Bureau’s former director testified that its volume of “taxables” and employers precluded any notice to Little that she filed with Spring Grove for the months that she lived there. He admitted that the name, “York County Earned Income Tax Bureau” did cause some confusion, in that taxpayers erroneously considered it was an arm of the local government. Thus, a filing with the Bureau could reasonably be assumed by a taxpayer to satisfy his duty to file his tax returns, regardless of what district he resided in. It was also established at trial that it was general knowledge that failure to file a tax return could result in fines and imprisonment. Reasonable care in this case would have made appellant cognizant of the public trust it engendered by its very name; that those employees dealing with the public be extremely accurate in the advice given to taxpayers; and that some effort be made by appellant to see that a copy of a return erroneously filed with them be forwarded to the non-serviced school district. Thus, for want of appellant’s reasonable care in this case, a series of unfortunate events was set in motion that reasonably could have been foreseen.

However, whether the negligent conduct proximately caused Little’s harm must be considered.

Proximate cause is a term of art denoting the point at which legal responsibility attaches for the harm to another arising out of some act of defendant, Flickinger Estate v. Ritsky, [452 Pa. 69, 305 A.2d 40 (1973)] W. Prosser, Law of Torts, § 41 (4th ed. 1971); and it may be established by evidence that the defendant’s negligent act or failure to act was a substantial factor in bringing about the plaintiff’s harm. Flickinger Estate v. Ritsky, supra; Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970) (plurality opinion); Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965); Diakolios v. Sears Roebuck & Co., 387 Pa. 184, 127 A.2d 603 (1956); Simon v. Hudson Coal Co., 350 Pa. 82, 38 A.2d 259 (1944); Frangis v. Duquesne Light Co., 232 Pa. Super. 420, 335 A.2d 796 (1975). The defendant’s negligent conduct may not, however, be found to be a substantial cause where the plaintiff’s injury would have been sustained even in the absence of the actor’s negligence. Majors v. Brodhead Hotel, supra; DeAngelis v. Burns, 404 Pa. 230, 171 A.2d 762 (1961); Frangis v. Duquesne Light Co., supra; Restatement, § 432.
It is the plaintiff’s burden to prove that the harm suffered was due to the conduct of the defendant. As in many other areas of the law, that burden must be sustained by a preponderance of the evidence. Cwiakala v. Paal, 427 Pa. 322, 235 A.2d 145 (1967); Zeman v. Canonsburg Boro, 423 Pa. 450, 223 A.2d 728 (1966); Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238 (1965). Whether in a particular case that standard has been met with respect to the element of causation is normally a question of fact for the jury; the question is to be removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue. Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 180 A.2d 414 (1962); Restatement § 434; W. Prosser, Law of Torts, § 45 (4th ed. 1971); F. Harper and F. James, The Law of Torts, Vol. 2 § 20.2 (1956). In establishing a prima facie case, the plaintiff need not exclude every possible explanation of the accident; it is enough that reasonable minds are able to conclude that the preponderance of the evidence shows defendant’s conduct to have been a substantial cause of the harm to plaintiff. Finney v. G.C. Murphy, Co., 406 Pa. 555, 178 A.2d 719 (1962). Thus, once a plaintiff has established facts from which a jury could reasonably conclude that defendant’s actions were a substantial factor in bringing about the harm,
“... ‘the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability unless he can show that such other cause would have produced the injury independently of his negligence,’ Carlson v. A. & P. Corrugated Box Corporation, 364 Pa. 216, 223, 72 A.2d 290, 293 (1950). See Yenchko v. Grontkowski, 385 Pa. 272, 122 A.2d 705 (1956).” Majors v. Brodhead Hotel, supra, 416 Pa. at 273, 205 A.2d at 878. Hamil v. Bashline, 481 Pa. 256, 265-6, 392 A.2d 1280, 1284-5, (1978).

Our review of the evidence persuades us that the issue of proximate cause was properly reserved for the jury since this is not such a clear case that reasonable minds could not differ on what caused Little’s harm. The jury could find that the Bureau’s negligent misrepresentation of Little’s responsibilities as a taxpayer set the wheels in motion. Little complied with the erroneous advice. Subsequently, she failed to retrieve her mail. Moreover, the magistrate demanded a cash bond; her attorney told her she could not get out of jail until after the weekend. Appellant was not able to show at trial, nor on appeal, that any of these other causes would have produced the injury independently of its own negligence. Thus, it is not relieved of liability on this theory.

As unusual and extraordinary as the events in this case are, their resolution was correctly reserved for the jury’s collective mind. What the Bureau’s employee should have realized might be a result of her inaccurate advice and what a reasonable person would regard as virtually impossible a result were fact questions for the jury. We are satisfied that the jury was able to decide, from the facts presented at trial, that the harm suffered by Little was proximately caused by the negligence of the Bureau.

The next question concerns what harm was suffered by Little, and whether the award of $20,000 in damages for humiliation, degradation, and mental anguish was correct under Pennsylvania law. The tort for which the jury found the Bureau liable was negligent misrepresentation. The court, using the language of the Restatement of Torts 2d § 552, instructed the jury in this manner:

It is quite clear that in this case the defendant had a duty not to hold itself out as something it was not to the detriment of others who would reasonably rely upon that representation, and in that connection, the law said that one who in the ocurse of his business, profession, or employment or in any other transaction in which he has a pecuniary interest supplies false information for the guidance of others in their business transactions is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Appellant argues that only in cases involving intentional torts have Pennsylvania courts seen fit to grant recovery for mental suffering and humiliation. These include false imprisonment, malicious prosecution, libel, and invasion of privacy. Moreover, it contends, the tort of negligent infliction of mental distress will give rise to damages for mental anguish. Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). However, it argues that in the remaining causes of action premised on negligence, that recovery for mental anguish has been allowed only where there is some concomitant physical injury. Therefore, appellant argues, Little should not have been entitled to $20,000 for her mental suffering.

Considered in isolation from each other, these statements by appellant are true. With intentional torts such as false imprisonment and malicious prosecution, the harm suffered by plaintiffs is considered to be damage in and of itself. See Shelton v. Evans, 292 Pa. Superior Ct. 228, 437 A.2d 18 (1981), an action for malicious prosecution, in which the plaintiff was awarded $20,000 in compensatory damages for his unwarranted arrest in his home in front of his wife, on four criminal complaints, the fact that he almost went to jail, and that he was made to defend himself against spurious charges at two separate hearings.

The tort negligent infliction of mental distress, which specifically deals with bystander liability, has experienced a rapid evolution in this state. The abrogation of the physical impact rule in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) meant that “where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact ... he could recover for the shock, mental pain, and physical injuries attendant to the negligent incident even though he was not struck by the negligent force.” Id., 436 Pa. at 413, 261 A.2d at 90. Then in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), a plurality opinion by (now Chief) Justice Nix, the Supreme Court of Pennsylvania acknowledged that in third party cases, the “zone of danger test” of Niederman v. Brodsky, could be unfairly restrictive. The Court said:

“This new awareness of the unfairness of the zone of danger requirement in ... cases [involving a parent who has suffered emotional harm from witnessing a tortious assault upon his or her minor child] is based upon the implicit acceptance that the emotional impact upon a parent witnessing the killing of a minor child is at least as great and legitimate as the apprehension that is inspired by plaintiff being personally within the zone of danger.” Sinn v. Burd, 486 Pa. at 156-157, 404 A.2d at 677.

Then, in another bystander case, the Supreme Court allowed action for mental distress to parents of an unplanned, unwanted, genetically defective child. Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981) (Mr. Justice Flaherty, joined by Messrs. Justice Larson, Kaufman, and Chief Justice O’Brien concluded that mental distress damages could be recovered.) But, then, in Mason v. Western Pa. Hospital, 499 Pa. 484, 453 A.2d 974 (1982), the Court denied the emotional costs of raising an unplanned healthy child because of the Commonwealth’s public policy favoring the joy of a healthy child as outweighing the costs of raising it as a matter of law. (The child was unexpected because a sterilization procedure had been negligently performed.)

Instantly, the tort for which appellant was found to be liable was negligent misrepresentation. Appellant argues that since that cause of action did not involve any intentional conduct, physical impact, or fear of physical impact, Little should not be. entitled to damages for humiliation and mental suffering. However, prior precedent should not preclude recovery merely because an unusual result has not been preceded by a similar result in another case. This is because it is fundamental that one may seek redress for every substantial wrong, and that a wrongdoer is responsible for the natural and probable consequences of his misconduct. Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). We do not believe that damages for humiliation and degradation, as the only substantial harm flowing from appellant’s imprisonment, should be denied her only because pecuniary harm and not imprisonment has occurred in the past because of a defendant’s negligent misrepresentation. As the Commonwealth Court stated in Vattimo v. Lower Bucks Hospital, Inc., 59 Pa. Cmwlth. 1, 428 A.2d 765, 768 (1981),

If emotional harm to James in fact resulted then, it is argued, the fortuitous avoidance of physical harm will not foreclose the question of the hospital’s liability. We agree and note in this regard that “[t]he defendant need not foresee ‘that an injury should occur in the exact way and to the same extent as that which did occur,’ he need only foresee that some injury of a like general character is not unlikely to result from failure to use care.” Thornton v. Weaber, 380 Pa. 590, 595, 112 A.2d 344, 347 (1955) (emphasis in original) (quoting Jeremiah Smith in “Legal Cause in Actions of Tort,” “Selected Essays on the Law of Torts” 649, 690).

Vattimo was a case premised on the negligence of a mental hospital in caring for a paranoid-schizophrenic with a fascination with fire, who was placed in a semi-private room without supervision. A few hours after his parents left the hospital, James allegedly set a fire in the room, which resulted in the death of his roommate. The cause of action which the Supreme Court permitted a jury to decide was James’ claim for emotional distress, humiliation, embarrassment and anxiety, even though James may have suffered no physical harm.

We see no reason to deny a jury’s determination that damages for emotional harm be awarded in the absence of physical harm in the instant case. It is indeed fortuitous that Little suffered no physical harm from the negligence of the Bureau. She did testify as to her humiliation, embarrassment, indignation, and emotional distress at having to spend five days in jail for noncompliance with a tax law occasioned by reliance on the negligent misrepresentation of the Bureau.

We see no reason why the Restatement of Torts, 2d, § 905(b) and Comment (d) (1979) did not apply to this case.

Compensatory Damages for Nonpecuniary Harm
Compensatory damages that may be awarded without proof of pecuniary loss include compensation
(b) for emotional distress.
(d) Humiliation. One who has a cause of action for a tort may be entitled to recover as an element of damages for that form of mental distress known as humiliation, that is, a feeling of degradation or inferiority or a feeling that other people will regard him with aversion or dislike. This state of mind may result from a physical harm, an imprisonment, a defamatory statement, the disruption of the marital relation, or even the deliberate trespass to land or destruction or dispossession of chattels.

Appellant contends that this comment on humiliation pertains only to intentional torts, like false imprisonment, and not to imprisonment which results from negligent misrepresentation. We see no reason to draw such a distinction, given our resolution of the foreseeability issue above. The lower court correctly charged on this section of the Restatement.

We feel confident in characterizing the situation of the within case as one presenting a unique question to our Court. The duty undertaken by the York County Earned Income Tax Bureau served to aid members of the public in complying with their own legally imposed duty, violation of which could result in fine or imprisonment. By their negligence in their duty, appellant invaded Little’s intangible interest of, what Dean Prosser calls, “personality,” or a dignitary interest. Prosser Torts, 528 (4th ed., 1978). The class of case which protect such interests gives rise to damages which are presumed, or the wrong is said to be damage in and of itself. Id. Thus, we hold that where a negligent act of an entity which holds itself out as responsible for the collection of taxes and which works closely with taxing bodies which have the authority to prosecute individuals for noncompliance, erroneously advises an individual as to the manner in which she should file a certain return, which fact ultimately results in that individual’s unjustified imprisonment, that entity may be found liable for the emotional distress suffered by the individual in reliance upon the negligent misrepresentation.

Appellant argues that $20,000 was an excessive amount because Little should have arranged to post the $500.00 cash bond, which fact would have shortened her time in jail and mitigated her damages. As this court remarked in Shelton v. Evans, supra, at p. 1200, “it is always suspect, when considering the adequacy or excessiveness of a verdict, to refer to the verdict in another case, for no two cases are the same.” Shelton, supra, 292 Pa. Superior Ct. at 234, 437 A.2d at 21. Let us only comment that the chain of events as established at trial explain Little’s inability to be released sooner than when she did. Moreover,

[t]he duty of assessing damages is within the province of the jury and should not be interfered with by the court, unless it clearly appears that the amount awarded resulted from caprice, prejudice, corruption or some other improper influence. Tonik v. Apex Garages, Inc., 442 Pa. 373, 378, 275 A.2d 296, 299 (1971).

We cannot say that the jury’s verdict of $20,000 was excessive when faced with the parade of horribles which resulted in Little’s imprisonment. She was shown to be — and appellant admits such — an upstanding citizen who had complied with all tax laws according to appellant’s advice. The Kafkaesque scenario of her experience provided the jury with an adequate basis upon which to provide recovery.

Order of the lower court affirmed.

WIEAND, J., filed a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. The negligent advice given by an employee of York County Earned Income Tax Bureau was so attenuated by subsequent independent and highly extraordinary intervening events that such negligence cannot be said to be the legal cause of appellee’s imprisonment. Therefore, I would reverse and cause judgment to be entered for the appellant.

Jeanne E. Little was an employee of General Telephone Company. Her employer customarily deducted local wage taxes from her salary and paid them to the local taxing authorities. In 1976, Ms. Little moved from the Central York School District to the Spring Grove District. Her wage tax returns were annually prepared by H & R Block and appropriately mailed after she had signed the same. In 1978, she moved from the Spring Grove District to Red Lion. Her tax returns for that year were prepared for her by a friend. Because Ms. Little had failed to receive tax forms from the Spring Grove District, she called the York County Earned Income Tax Bureau to inquire about the filing procedure to be followed by one who had changed residence. She testified that an unidentified person, who answered the phone, promised to mail her a form and told her one filing would suffice. That form was received, completed, and mailed to the Earned Income Tax Bureau. The Spring Grove District was not serviced by the Bureau, however, and Ms. Little’s tax return was not forwarded to that district.

A representative of the Spring Grove District testified that after Ms. Little’s delinquency had become apparent, a tax return and a notice to complete and file within three weeks were sent to her in Red Lion by first class mail. She said she didn’t receive the letter. The School District showed, however, that the undelivered letter had not been returned to the sender. Therefore, it assumed that delivery of the notice had been made. When it received no response from the taxpayer, the School District caused notice to be sent by certified mail, return receipt requested. The post office sent three separate notices to the taxpayer, which, Ms. Little concedes, were duly received. She testified, however, that she was too busy to go to the post office for the certified letter, and the letter was eventually returned “unclaimed” to the School District.

The Spring Grove School District thereafter filed a complaint with Magistrate Hill, who issued not only a summons but a warrant for Jeanne Little’s arrest. The warrant was served on appellee on Wednesday before Easter in 1980. When she declined to enter a plea of guilty, the magistrate set bail at $500. He then refused to accept a personal check for the bail and also refused to allow time for a friend to obtain the cash bail demanded. Because Ms. Little was not carrying adequate cash on her person to meet the demand of the magistrate, he ordered that she be committed to the York County Prison. An attorney was employed, but he did not get to see Ms. Little or otherwise contact her until Thursday evening. Inexplicably, the attorney then represented that he was powerless to obtain the client’s release from prison until after the Easter holiday. Ms. Little was not released until Monday evening. The charges against her were subsequently dismissed when she completed a return at her hearing.

The issue of proximate cause includes a consideration of the degree of culpability in determining whether to hold an actor liable for negligent conduct. Seidelson, Some Reflections on Proximate Cause, 19 Duq.L.Rev. 1, 2-3 (1980); Morris, Duty, Negligence and Causation, 101 U.Pa.L.Rev. 189, 193-194 (1952). For reasons of propriety and fairness, the scope of a defendant’s liability should not be wholly disproportionate to the culpability of his act. Seidelson, supra. Proximate cause is used as a term of art to denote the point beyond which legal responsibility will not attach for a negligent act. Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978).

To be a proximate cause, defendant’s negligence must be a substantial factor in causing the plaintiff’s harm — in this case, her alleged mental distress. Hamil v. Bashline, supra; Takach v. B.M. Root Co., 279 Pa.Super. 167, 170, 420 A.2d 1084, 1086 (1980); Noon v. Knavel, 234 Pa.Super. 198, 208, 339 A.2d 545, 550 (1975); Wisniewski v. The Great Atlantic and Pacific Tea Co., 226 Pa.Super. 574, 581-582, 323 A.2d 744, 748 (1974). Where the facts are not in dispute and the causal connection between the defendant’s negligence and the plaintiff’s injuries is clearly remote, the issue of proximate cause is a question of law for the court. Flickinger Estate v. Ritsky, 452 Pa. 69, 74, 305 A.2d 40, 43 (1973); Liney v. Chestnut Motors, Inc., 421 Pa. 26, 29, 218 A.2d 336, 338 (1966); Klimczak v. 7-Up Bottling Company of Philadelphia, Inc., 385 Pa. 287, 293, 122 A.2d 707, 710 (1956), disapproved on other grounds, Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959); Restatement (Second) of Torts § 434(1)(a) (1965). See: Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 257-259, 465 A.2d 1231, 1239 (1983) (Nix, J., concurring and dissenting); Prosser, Law of Torts § 50 (1941).

In determining whether negligent conduct is a substantial factor in causing harm, consideration must be given to “the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it.” Restatement (Second) of Torts § 433 (1965). Other factors may have such a predominant effect in bringing about the harm that the actor’s negligent act is insignificant, and, thus, not a substantial factor. Restatement (Second) of Torts § 433, comment (d) (1965).

“An intervening force is one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.” Restatement (Second) of Torts § 441(1) (1965). In determining whether an intervening cause supersedes the actor’s negligent act or omission so as to relieve the actor from liability a court must consider the following factors:

(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;
(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

Restatement (Second) of Torts § 442 (1965).

After examining the number of additional factors which contributed to Jeanne Little’s imprisonment and examining them in the light of the considerations suggested by the foregoing sections of the Restatement, I would conclude as a matter of law that appellant’s negligence was not the legal or proximate cause of her harm.

Jeanne Little’s mental distress and humiliation were caused by her imprisonment, not by the Bureau’s negligence in failing to advise her correctly. Her humiliation was caused not because of mere tax liability or failure to file a necessary return. Her wage taxes had been paid; they had been withheld from her wages by her employer, and had been paid to the school districts to which they were owed. Her only apparent default had been a seeming failure to file an annual return with the school district from which she had moved in mid year. In fact, this return had been forwarded to the York County Earned Income Tax Bureau and, because of the Bureau’s negligence, had not been filed properly with the Spring Grove School District. Looking back from appellee’s imprisonment and considering the many subsequent factors which brought it about, I find it inconceivable that appellant’s negligence can reasonably be said to be the legal cause thereof. Appellant’s negligence is entirely too remote.

In the first place, there is the matter of two notices sent to Ms. Little that a tax return had not been received by the Spring Grove School District. The first notice, although sent by first class mail, was neither delivered nor returned to the sender. The necessary inference is that it was lost in the mail. A second notice, sent by certified mail, was not received by Ms. Little because, despite three separate notices that it was being held for her in the post office, she found herself too busy to pick it up. If only one of the School District’s notices had been received, it seems obvious that the apparent deficiency in failing to file a return would have been corrected. Instead, Jeanne Little remained blissfully ignorant that the School District had not received a copy of her tax return. Criminal prosecution followed.

Even if criminal prosecution for the failure to file a return could conceivably be said to have been caused proximately by the Bureau’s negligence, the Bureau, nevertheless, was not responsible for the independent act of the magistrate who incarcerated appellee without a hearing during Holy Week because he rejected her explanation, insisted on cash bail and refused arbitrarily to accept a check or allow her reasonable time to obtain cash. Similarly, the Bureau’s negligence was separate from and unrelated to the delay of counsel and his supine and inexplicable helplessness to obtain appellee’s release from prison before the following Monday evening. At this point we are four or five steps removed from appellant’s negligence. At least four independent, intervening causes have coincided to bring about appellee’s five day incarceration without a hearing. This combination of intervening causes for which others were responsible produced a result entirely different than one could reasonably anticipate as a consequence of the Bureau’s negligence. Indeed, the result was one which even the majority conceives as being truly extraordinary. Under these circumstances, holding the Bureau responsible for appellee’s imprisonment without reasonable opportunity to post bail and without a hearing is wholly disproportionate to the culpability of the Bureau’s mishandling of Ms. Little’s tax inquiry. Indeed, the Bureau’s negligence pales into insignificance when the predominant effect of these intervening causes is considered. I would hold, therefore, that the Bureau’s negligence was not the legal or proximate cause of appellee’s harm.

Appellant’s tortious act, in any event, was an act or omission of simple negligence. Its tortious conduct was not intentional, nor was it reckless or wanton. Appellee’s cause of action is not one for false arrest, it is an action to recover for embarrassment and hurt feelings resulting from an imprisonment allegedly caused by the negligent act of another. Whether damages for such embarrassment and hurt feelings, where there has been neither physical nor mental injury, can be recovered against one who has been guilty of simple negligence is a vexing issue.

As a general rule, damages for mental anguish or humiliation, where there has been no physical injury, can be recovered only in cases of tortious conduct committed intentionally, wantonly or recklessly. See: 22 Am.Jur.2d Damages § 195 (1965). The general rule is stated in Section 436A of the Restatement (Second) of Torts as follows: “If the actor’s conduct is negligent as creating an unreasonable risk of causing ... emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.” This section was adopted and followed in Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 128-129, 437 A.2d 1236, 1239-1240 (1981). See also: Plummer v. Abbott Laboratories, 568 F.Supp. 920 (D.R.I.1983); Sypert v. United States, 559 F.Supp. 546 (D.D.C.1983) (applying Virginia law); Avallone v. Wilmington Medical Center, Inc., 553 F.Supp. 931 (D.Del.1982); White v. United States, 510 F.Supp. 146, 149 (D.Kan.1981) (applying Georgia law); Keck v. Jackson, 122 Ariz. 114, 115, 593 P.2d 668, 669 (1979); Barnhill v. Davis, Iowa, 300 N.W.2d 104, 107-108 (1981); Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982). The reasons for disallowing damages for mental distress alone where the tortfeasor’s conduct has not been intentional, reckless or wanton are stated in comment b to Restatement (Second) of Torts § 436A as follows:

Emotional disturbance which is not so severe and serious as to have physical consequences is normally in the realm of the trivial____ It is likely to be so temporary, so evanescent, and so relatively harmless and unimportant, that the task of compensating for it would unduly burden the courts____ [Moreover] in the absence of the guarantee of genuineness provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff [and may] open too wide a door for false claimants who have suffered no real harm at all. [Finally,] where the defendant has been merely negligent, without any element of intent to do harm, his fault is not so great that he should be required to make good [for mere embarrassment].

The majority relies on Section 905 of the Restatement (Second) of Torts to sustain an award solely for mental distress in the instant case. That section, however, does not support the rule which the majority espouses. It does no more than recognize that in some causes of action, non-pecuniary harm, such as emotional distress, may be compensated. The Restatement does not pretend to create a cause of action for negligent infliction of emotional distress. This is readily apparent from comment c, which provides as follows:

c. Emotional distress in general. The principal element of damages in actions for battery, assault or false imprisonment, as well as in actions for defamation, malicious prosecution and alienation of affections, is frequently the disagreeable emotion experienced by the plaintiff. In other cases, protection against disagreeable emotions not involving bodily pain is ordinarily given only in an action for infringement of some other interest. Thus one who insults or annoys another, thereby causing a third person to suffer fright or physical discomfort, is ordinarily not subject to liability to the third person unless bodily harm results. (See §§ 312 and 313). Whether there can be an action merely for harm to the feelings presents a question of the existence of the cause of action and is not a problem of the amount of damages.

Restatement (Second) of Torts § 905, comment c (1979).

The Pennsylvania decisions have addressed specific fact patterns without establishing a per se rule. In Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), the Supreme Court recognized a cause of action for emotional distress caused to one who had been placed in imminent danger of physical impact by a negligent force directed toward him. In that case, however, the emotional distress had manifested itself in “coronary insufficiency, coronary failure, angina pectoris and possible myocardial infarction.” Id., 436 Pa. at 403, 261 A.2d at 84. In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), a plurality of the Court suggested a “zone of danger test” which would allow recovery for mental anguish sustained by a parent who witnessed the tortious killing of a child. Even there, however, the Court was reviewing an order sustaining a demurrer to a count in the complaint which alleged “mental pain and suffering resulting in severe depression and an acute nervous condition.” Id., 486 Pa. at 151, 404 A.2d at 674. In Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981), the Court was called upon to determine whether parents could maintain an action against a physician whose negligence had resulted in the wrongful birth of a child with neurofibromatosis. The Court held that such an action could be maintained and that damages for mental distress caused to the parents could be recovered. However, in Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982), the Court held that a parent could not recover damages for emotional distress because of the “wrongful birth” of a normal, healthy child.

In the instant case, there was neither direct injury to appellee as a result of appellant’s negligence nor physical injury resulting from the embarrassment which she felt upon being imprisoned. And yet, it is readily understandable that unfeigned embarrassment and humiliation will in all probability result to a person who has been unnecessarily imprisoned. Recognizing that humiliation in cases of imprisonment may be greater than in other cases of emotional distress and that negligence resulting in imprisonment may require a different rule, but also recognizing the serious consequences of such a rule, the Restatement (Second) of Torts has declined to take a position. By caveat to Section 35 and in comment g of Section 905, the Restatement has expressed no view on whether a plaintiff should be permitted to recover damages for harm to his or her feelings when deprived of freedom by the negligent act or omission of another person.

The majority has entered this vacuum and has held that recovery for emotional distress in such cases can be premised on negligence alone. By so doing, it has placed members of the legal profession, particularly the members of the criminal trial bar, at grave and, in my judgment, unnecessary risk. I find it unnecessary to establish such a cause of action, with its potential for mischief, in the instant case. Appellant’s negligence was so remote from, and so lacking in relative culpability in bringing about, appellee’s emotional distress that it was not the legal cause thereof. I would reverse and direct the entry of judgment n.o.v. in favor of appellant.

      . Little testified at trial that she received notices that certified or registered mail was to be picked up at the post office, but that she never picked it up. She stated that she had no way of knowing from whom they originated. It was established that these were notices from the Spring Grove School District regarding her failure to file her return. An official from Spring Grove also testified that it was his practice to precede the certified notices with a first class mail notice. Little stated that she never received that notice.

      . “... the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability unless he can show that such other cause would have produced the injury independently of his negligence.” Majors v. Brodhead Hotel, supra, at p. 17.

      . In a case in which a plaintiff sued his public defender claiming his negligence resulted in plaintiff's imprisonment, our court never reached the merits of the action, as it was time-barred. Moore v. McComsey, 313 Pa. Superior Ct. 264, 459 A.2d 841 (1983). Other causes of action against attorneys for malpractice are usually treated as breaches of contract, rather than as negligence. Id., 313 Pa.Superior Ct. at 268; 459 A.2d at 844. Actions against police officers premised on negligence as resulting in imprisonment are usually resolved on immunity grounds, cf Evans v. Elizabeth Police Department, et al., 190 N.J.Super. 633, 464 A.2d 1212 (1983) (Police officers should not have to worry about civil liability in the performance of their duties.)

      . The Supreme Court affirmed the Commonwealth Court’s approval of James Vattimo’s cause of action for his own emotional distress; see Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983) (Messrs. Justice Hutchinson, Roberts, Larsen, and Zappala concurring.)

      . One author persuasively argues that if an interest, like freedom of movement, belonging to a plaintiff is infringed by a defendant, then it can be said that the plaintiff has suffered damage, and the plaintiff should have an action, whether the defendant caused the damage intentionally or indirectly. "... [T]he negligent infliction of loss of freedom of movement should give rise to a claim for damages. The damages will depend on the duration of the loss of freedom, the degree of humiliation, illness resulting, and so forth." Heffey, "Negligent Infliction of Imprisonment: Actionable 'Per Se' or ‘Cum Damno’?’ 14 Melbourne U.L.R. 53, 64 (1983).

      . A representative of the School District testified that Ms. Little’s name was on the tax rolls and that the District had mailed forms in December to all persons on its tax rolls.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    481 A.2d 1207
    DREHER TOWNSHIP BOARD, the Independent Property Owners Association of Sherwood Forest, By Emmanuel T. Sotiridy, Trustee Ad Litem v. SOLITRON DEVELOPMENT CO., INC. Appeal of the INDEPENDENT PROPERTY OWNERS ASSOCIATION OF SHERWOOD FOREST, By Emmanuel T. SOTIRIDY, Trustee Ad Litem.
    Superior Court of Pennsylvania.
    Submitted May 4, 1984.
    Filed Aug. 24, 1984.

      John R. O’Brien, Scranton, for appellant.
    Timothy B. Fisher, Gouldsboro, for Dreher, appellee. Robert S. Bennett, Jr., Media, for Solitron, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Wayne County which denied exceptions filed by appellant, The Independent Property Owners Association of Sherwood Forest (hereafter “Association”) to an order dated July 26, 1982, in which the lower court held that lands presently owned by Solitron Development Co., Inc. (hereafter “Solitron”) were not subject to a certain Declaration of Protective Covenants. We reverse and remand for resolution of an issue not reached by the lower court.

On March 19, 1982, the Dreher Township Board of Supervisors (hereafter “Board”) filed a complaint for a declaratory judgment against Solitron, owner of certain tracts of land in Wayne County which comprise portions of a large vacation home development plan originally proposed in 1972 and commonly known as Sherwood Forest Development. The complaint requested the court to determine the continuing applicability of a declaration of protective covenants which was dated May 1, 1972, and duly recorded in the office of the Recorder of Deeds of Wayne County. The portion of the declaration of protective covenants relevant to the instant case is as follows:

“F. Sewage Disposal. The central sewage disposal system constructed or to be constructed by Declarant, as said system may at any time be improved or otherwise altered, shall be the sole sewage disposal system for the development. No owner shall install or use any alternative system or method of sewage disposal unless approved by the committee in writing. All plumbing fixtures, washers, toilets and similar equipment on any Residential Lot shall be connected to the central system through the sewer main now or hereafter installed in the street abutting said Lot. No outside toilets shall be constructed on any Lot.” (Emphasis added)

In July of 1981, and thereafter, Solitron presented to the Dreher Township Board of Supervisors, sewage modules for certain tracts requesting the Board to approve them as revisions and supplements to the official sewage plan of Dreher Township. Subsequently, the Board received a report from the Township Sewage Enforcement Official that there was sufficient acreage and sufficient suitable soils to erect or install on-site subsurface sewage disposal systems. The Township submitted these modules to the Pennsylvania Department of Environmental Resources (hereafter “DER”) for its review and comments. In September, 1981, Solitron submitted formal subdivision plans and made application for building permits. The former were conditionally approved, and the building permits were denied. The conditions with respect to the subdivision plans were (1) that Solitron had to obtain approval from DER and (2) a judicial decision indicating that the prohibition against on-site sewage found in the restrictive covenants was inapplicable. The denial of the building permits was based on the grounds that the parcel in question was bound by the restrictive covenant and that until the court made a decision on the applicability of the covenants, no permit would be issued. Since the DER and the Board effectively reserved decision until such time as the applicability of the aforesaid restrictive covenants was judicially decided, three cases arose. The first case was an appeal by Solitron of the conditional subdivision approval. The second action was in the nature of mandamus and involved the denial of the building permit application. In both of the aforementioned actions, the Board was the defendant. The third action, previously described, was for a declaratory judgment. A petition to intervene on behalf of the Sherwood Forest Property Owners Association (hereafter “Association”) was granted on April 16, 1982. On June 25, 1982, the lower court ordered the consolidation of the three actions. By order dated July 26, 1982, the lower court found that the lands presently owned by Solitron were not bound by the restrictive covenants of the Sherwood Forest Development Co., Inc. By order dated July 27, 1983, the lower court denied the Association’s exceptions to said order. The lower court found that the “progress, use, and the orderly development of residential areas should not be arbitrarily impeded by property restrictions which, though justifiable, and sound once created are out of harmony with the present, and inconsistent with the general welfare.” (Opinion by Conway, J., 7/26/82 at 3-4) The trial court later elucidated this holding:

“Our decision was not based on a finding that the restrictive covenant prohibiting the use of onsite sewage was not expressly created by the developer. Our decision was not based on a finding that the subsequent purchasers of any lot of the Sherwood Forest Development Lands are not bound by the restrictive covenants for any reasons other than those stated in the paragraph which follows. Our decision was not based on a finding that it was not the clear intent of the developers that all parcels of Sherwood Forest would be bound by the restrictive covenants, and that any subsequent purchasers would be prohibited from installing its own sewage facility.” (Opinion, Conway P.J., 7/27/83 p. 8)

Throughout the proceeding, intervenors have contended that since the average size of a lot is less than one-third of an acre, the success of the development hinges to a great extent upon the existence of one central sewage system. Because of the considerable expense involved in constructing such a system, the only way to provide a central sewage system is by a restrictive covenant that requires all land to be so served. The Association and its members alleged that they are presently involved in litigation concerning the Sherwood Forest escrow account and the funds which were set aside for the development of the Sherwood Forest Development and fully intend to develop said plan in the manner originally intended by the developer. To hold that the restrictive covenants are inapplicable would be to undermine the development of the central sewage system and concomitantly undermine the development of the entire plan. Solitron contends that the Court of Common Pleas held correctly and submits that the only way the 300 to 400 landowners can make any meaningful and immediate use of their land is to allow on-site sewage disposal as long as the sewage system is approved by the Pennsylvania Department of Environmental Resources and as long as the landowner complies with all applicable local ordinances. We reverse.

This appeal presents us with an oft-litigated problem in a novel context. The question of whether changed circumstances have arisen thereby negating the usefulness of a restrictive covenant usually arises where there is a covenant related to the use of the land. The covenant may restrict the use of a particular plan or lot to residential use. In ensuing years, a major highway is built, the developer has implicitly consented to some commercial uses, or the land becomes wholly unfit for residential use, and the court will hold that “the changed character of the area should stay the hand of equity.” Snyder v. Plankenhorn, 398 Pa. 540, 159 A.2d 209 (1960). The lower court used similar and consistent reasoning to apply a “changed character” theory to the situation where a developer “goes under”, money is not available for a central sewage system, and a party desires to develop land.

“Restrictions on the use of land are not favored by the law because they are an interference with an owner’s free and full enjoyment of his property. (Cites omitted) Therefore, they are to be strictly construed.” Burns v. Baumgardner, 303 Pa.Super. 85, 91, 449 A.2d 590, 592-593 (1982). Morean v. Duca, 287 Pa.Super. 472, 430 A.2d 988 (1981). “Indeed, every doubt is to be resolved against the existence of restrictions and in favor of a free and unrestricted use of property by its owner.” Burns v. Baumgardner, supra, 303 Pa.Superior Ct. 91, 449 A.2d at 593. We are further mindful that covenants restricting the use of land are construed most strictly against one claiming their benefit and in favor of the free and unrestricted use of property. Sczepaniak v. McGlone, 163 Pa.Super. 11, 60 A.2d 382 (1948). “To ascertain the intention of the parties, the language of a deed should be interpreted in light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed.” (Emphasis added) Baederwood, Inc. v. Moyer, 370 Pa. 35, 40-41, 87 A.2d 246, 248 (1952). Snyder v. Plankenhorn, supra. Cases are legion wherein courts have held that the character of a neighborhood has changed thereby negating the usefulness of the restrictive covenant.

“Where the exigencies of altered conditions in a neighborhood render a strict adherence to the terms of the restrictive covenant useless to the dominant tenement, or absurd, or futile, or ineffective to achieve the end desired, it would be an anachronism to interpose equitable relief in favor of it.”

Daniels v. Notor, 389 Pa. 510, 515, 133 A.2d 520, 523 (1957) quoting fr. Henry v. Eves, 306 Pa. 250, 260, 159 A. 857, 860. “Equity does not enforce such a restriction if the nature of the neighborhood changes has been such as to make it impossible to accomplish the objects for which it was designed, even though such changes may have resulted from circumstances over which neither of the parties had any control. It being a general policy of the law that land shall not be burdened with permanent or long continued restrictions which have ceased to be of any advantage, equity will not, in such cases, prohibit or retard improvements simply to enforce the literal observance of a condition or covenant.” Daniels v. Notor, supra, 389 Pa. 518, 133 A.2d at 524-525.

The above jurisprudence is firmly entrenched. However, notwithstanding any change in character or use of land, “equity will restrain a violation of a building restriction if its enforcement remains of substantial value to the dominant tenement”, Daniels v. Notor, supra, 389 Pa. 519, 133 A.2d 525. See also Peters v. Davis, 426 Pa. 231, 231 A.2d 748 (1967), Rome v. Rehfuss, 391 Pa. 82, 137 A.2d 233 (1958). Here, the covenants were expressly created by the developer, clearly intended to apply to all subsequent purchasers of lots within the development, and clearly intended to prohibit any future buyer from installing an on-site sewage module. Just as Solitron contends that the covenant will restrict it from developing its land, the Association contends that allowing Solitron to construct an on-site sewage system will undermine its plans and make it financially burdensome to construct a central sewage system, which it considers mandatory if further development is to be realistic.

In order to effect the discharge of the covenants, the burden of proof is on the owners of the servient tenements to show that the original purpose and intent of the restrictions “have been materially altered or destroyed” by “changed conditions” and that “substantial benefit and advantage may not inure to the owners of the dominant tenement by the enforcement of the restrictions.” Rieck v. Virginia Manor Co., 251 Pa.Super. 59, 64-65, 380 A.2d 375, 378 (1977).

Equity will deny relief to a party seeking enforcement of a restrictive covenant “if the harm done by granting the injunction will be disproportionate to the benefit secured thereby.” Restatement of Property, § 563 (1944). Solitron does not persuasively assert that its hardship would be far greater than the benefit afforded the Association by the restriction. See Katzman v. Anderson, 359 Pa. 280, 59 A.2d 85 (1948).

The findings of the chancellor may be disturbed where the record affords them inadequate evidentiary support or when they have been premised upon erroneous inferences and deductions drawn by the chancellor from the evidence. Peters v. Davis, supra.

Accordingly, we hold that the restrictive covenants have retained their validity and should control. There has been no “substantial change in circumstances”. Price v. Anderson, 358 Pa. 209, 56 A.2d 215 (1948).

Solitron argues that should this court determine that the declaration of protective covenants applies, then it should apply only to those areas which were subdivided into lots, not to the unlotted portions nor to those areas retained by the developer. It notes that the declaration states “No owner shall install or use any alternative system or method of sewage disposal unless approved by the committee in writing ” and argues that this implies that the developer anticipated alternate sewage disposal systems. Since some land was lotted and other land remained either unlotted or “retained by the developer”, Solitron argues that the developer intended to withhold parts from the strictures of the Declaration of Protective Covenants. Since the lower court did not reach the issue of whether all lands owned by Solitron are subject to the Declaration of Protective Covenants, we remand for a decision on this issue.

Jurisdiction relinquished.

      . The conditional approval involved unlotted acreage located in Sherwood Forest Development and known as "Huckleberry Hill Subdivision.” The denial involved reserved areas located in Sherwood Forest Development.

      . There is no issue raised as to lack of standing on the part of the Association to enforce the restrictive covenants. See PLE Covenants, § 21, Fey v. Swick, 308 Pa.Super. 311, 454 A.2d 551 (1982) for a discussion of the right to enforce restrictive covenants imposed to carry out a general scheme of development.

      . The lower court held that the Association’s Exceptions were timely filed because notice of the lower court’s decision was never served upon them. Solitron contends that it had constructive notice. Citing Gibson v. Miller, 265 Pa.Super. 597, 402 A.2d 1033 (1979), the lower court held that there is no exception which allows actual or constructive notice from a source other than the Prothonotary to begin the running of the 10-day period for filing exceptions. Rule 1519 provides that if no exceptions are filed within the 10-day period, a decree nisi shall be entered on praecipe as the final decree and that notice of that decree shall be given to each party. "The fact that the PlaintiffIntervenors never received notice of the entering of a final decree would have further led them to believe the ten (10) day period for the filing of exceptions had not yet begun to run.” (Opinion, Conway, J., July 28, 1983). Moreover, a court may grant leave to file exceptions nunc pro tunc.

      . Presently there is no central sewage system, and no developer in existence.


text:
    481 A.2d 1212
    COMMONWEALTH of Pennsylvania v. Harold William JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed Sept. 11, 1984.

      Marsha A. McClellan, Assistant Public Defender, West Chester, for appellant.
    Stuart Suss, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by Harold William Johnson, appellant, from a judgment of sentence entered on August 1, 1983, after he was convicted of arson arising from events occurring on December 23, 1979, upon entry of a plea of nolo contendere. On April 25, 1980, appellant was sentenced in New Jersey on arson charges arising from events occurring on or about January 1, 1980. After sentencing on that charge, appellant was returned to Chester County to answer the charges from which this appeal arises. On September 10, 1980, the lower court granted appellant’s motion to dismiss pursuant to Rule 1100, and appellant was discharged from custody. The Commonwealth’s appeal therefrom was not successful until October 8, 1982, and, in the interim, on May 28, 1981, appellant was convicted of theft and receiving stolen property. We affirm the judgment of sentence wherein appellant was sentenced to a term of eighteen to thirty-six months’ incarceration.

Appellant’s contentions are two-fold and related. First, he claims that the sentencing judge improperly considered convictions for offenses committed subsequent to the one at issue, which he alleges are not “prior convictions”. Secondly, he contends that the sentence was manifestly excessive since he maintains that the judge did not consider sentencing alternatives nor appellant’s rehabilitative needs.

A sentencing court must examine the circumstances of the crime and the individual background of the defendant since the sentence imposed must be the minimum punishment consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. Commonwealth v. Burtner, 307 Pa.Super. 230, 453 A.2d 10 (1982). The court may also consider a defendant’s prior arrests which did not result in convictions, as long as the court recognizes that the defendant had not been convicted of the charges. Commonwealth v. Bryant, 312 Pa.Super. 379, 458 A.2d 1010 (1983). Broad discretion is reposed in the sentencing judge to receive relevant information. Commonwealth v. Vernille, 275 Pa.Super. 263, 418 A.2d 713 (1980). Generally, the imposition of a sentence is within the discretion of the trial court and is left undisturbed on appeal because the trial court is in a better position to weigh factors involved in its determination; however, this discretion must be exercised within certain procedural limits, including consideration of sufficient and accurate information. Commonwealth v. Bromund, 278 Pa.Super. 189, 420 A.2d 493 (1980).

In fact, the sentencing judge did take into consideration appellant’s intervening criminal activities and the convictions therefor and would have been remiss in not having done so. Those acts reflected appellant’s character as a convicted repeat offender as well as his lack of contrition. Commonwealth v. Gallagher, 296 Pa.Super. 382, 442 A.2d 820 (1982).

In Commonwealth ex rel. Norman v. Banmiller, 395 Pa. 232, 149 A.2d 881 (1959) it was held that in a prosecution for first degree murder, defendant’s prior convictions before and after the murder were properly admissible for the sole purpose of enabling a jury to determine defendant’s sentence. See also, Commonwealth v. Bell, 417 Pa. 291, 208 A.2d 465 (1965) where it was held that

evidence of defendant’s commission of other crimes, consisting of his own freely-made admissions, even though the crimes were committed after the crime on trial, is relevant and an important consideration for the jury in the determination of what manner of man the defendant is on the day the awesome decision must be made as to whether he should live or die.

Id., 417 Pa. 297, 208 A.2d at 468. See also Commonwealth v. Campbell, 228 Pa.Super. 215, 323 A.2d 859 (1974).

Moreover, appellant’s sentencing colloquy was lengthy and extensive. The judge adhered to the general standards set forth in 42 Pa.C.S.A. 9721(b). He considered, inter alia, appellant’s youth, background, the nature of the offenses, appellant’s good record prior to the offense and chose not to consider certain disorderly conduct convictions mentioned in a pre-sentence report. The court interposed that appellant “quite possibly need[ed]” rehabilitation during his incarceration. The Court noted

So you have a prior conviction in this Court for theft— again, which cannot be overlooked from the standpoint of your rehabilitative needs. Your counsel has argued that your time in jail for which I will give you credit of one hundred forty days, did show you that you had done something wrong, and yet the record indicates that you came back subsequently and did something wrong again, and, therefore, your rehabilitative needs must be met____

and stated that these offenses arose from “a willingness to use fire because of your own frustrations and anger— again, with the potential of serious harm.”

Since appellant’s sentence was not manifestly excessive and the sentencing judge did not consider impermissible factors, there was no abuse of discretion.

Judgment of sentence affirmed.

      . Commonwealth v. Johnson, 305 Pa.Super. 310, 451 A.2d 546 (1982).

      . The Sentencing Guidelines do not govern appellant’s sentencing proceedings since they apply to offenses occurring on or after July 22, 1982. The Guidelines define prior convictions as follows:
      A prior conviction is defined as a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal taken on the prior offense.
      204 Pa.Code 303.7(g), 42 Pa.C.S.A. 9721, et seq.

      . In Wasman v. United States, the U.S. Supreme Court held that after retrial and conviction following a defendant’s successful appeal, a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings
      It is now well established that a judge or other sentencing authority is to be accorded very wide discretion in determining an appropriate sentence. The sentencing court or jury must be permitted to consider any and all information that reasonably might bear on the proper sentence for the particular defendant, given the crime committed. Justice Black made this point when, writing for the Court in Williams v. New York, 337 U.S. 241, 247 [69 S.Ct. 1079, 1083, 93 L.Ed. 1337] (1949), he observed that ”[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Allowing consideration of such a breadth of information ensures that the punishment will suit not merely the offense but the individual defendant. Ibid.

        Wasman v. United States, — U.S. —, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984).

      . The required sentencing considerations reveal the extent to which one convicted should be punished or rehabilitated. A sentencing court should not be required to ignore activities conducted at a time when, arguably, a defendant should be most cognizant of his wrongdoing.
      Moreover, under appellant’s theory, upon any future prosecution for future offenses, a sentencing court could consider all of appellant’s criminal activities from December 23, 1979, through May of 1981. If this court had reached a different result, appellant’s sentence might well have been lighter, and only upon a future conviction could his punishment reflect his prior criminal convictions. However, a sentencing court is bound to consider the protection to the public and the defendant’s rehabilitative needs, and a consideration of appellant’s criminal convictions is highly appropriate.


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    481 A.2d 1215
    Elizabeth Ann ALLISON, The Executrix of the Estate of Harold N. Allison, Deceased, Appellant, v. Robert O. POWELL and Mary Jane Powell.
    Superior Court of Pennsylvania.
    Argued March 13, 1984.
    Filed Sept. 21, 1984.

      William R. Keen, Jr., Coatesville, for appellant.
    Andrea L. Bowman, Paoli, for appellees.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Does a pending action to partition real estate owned by joint tenants with right of survivorship survive the death of the joint tenant at whose instance the action was commenced? The trial court held that the action did not survive and entered judgment on the pleadings in favor of the surviving joint tenant and against the executrix of the deceased joint tenant. We affirm.

Harold N. Allison and Robert O. and Mary Jane Powell, husband and wife, owned title to real estate in Chester County as joint tenants with right of survivorship. On July 31, 1981, Harold Allison filed a complaint in equity seeking to obtain partition of the real estate. The complaint was not served on Mr. and Mrs. Powell until March 9, 1982. Meanwhile, on January 10, 1982, Harold Allison had died. Powells’ answer to the complaint contained an averment that Allison had died and that title had passed to the Powells by right of survivorship. Allison’s executrix was substituted as a party plaintiff for the decedent and filed a Reply containing New Matter in which she alleged an agreement “that the defendants would pay Twenty Thousand ($20,000.00) Dollars in cash to the plaintiff” for Allison’s interest in the real estate. As evidence thereof, she attached a copy of a letter sent by Allison’s attorney to Powells’ attorney as follows:

November 4, 1981
Frank L. White, Jr., Esquire
Duane, Morris and Heckscher
45 Darby Road
Paoli, Pa., 19301
Re: Mr. and Mrs. Robert O. Powell
Dear Mr. White:
My client will accept the $20,000.00 cash to sign off the property. This would mean that all costs of transfer would have to be borne by your client.
He is pressing me to bring the matter to a rapid conclusion and I would appreciate hearing from you as soon as possible what the time frame the Powells would need to get the money.
Sincerely,
William R. Keen, Jr.

The trial court sustained a motion for judgment on the pleadings and dismissed the complaint. On appeal, Allison’s executrix argues that the commencement of the action for partition, together with the decedent’s alleged agreement to sell his interest, manifested an irrevocable determination by the parties to sever the joint tenancy.

A joint tenancy in real estate with right of survivorship is created by the co-existence of the four unities of interest, title, time and possession. Sheridan v. Lucey, 395 Pa. 306, 307, 149 A.2d 444, 445 (1959); Yannopoulos v. Sophos, 243 Pa.Super. 454, 459, 365 A.2d 1312, 1314 (1976). A joint tenancy in real estate with right of survivorship is severable by the act, voluntary or involuntary, of either of the parties. Angier v. Worrell, 346 Pa. 450, 452, 31 A.2d 87, 88 (1943). When this occurs, the tenancy becomes one in common. Yannopoulos v. Sophos, supra, 243 Pa.Super. at 459, 365 A.2d at 1314. Although the joint tenancy may be severed by a joint tenant’s act which destroys one of the four unities, “that act must be of sufficient manifestation that the actor is unable to retreat from the position of creating a severance of the joint tenancy.” Sheridan v. Lucey, supra, 395 Pa. at 309, 149 A.2d at 446. Accord: Yannopoulos v. Sophos, supra, 243 Pa.Super. at 461, 365 A.2d at 1315. The commencement of a partition action is alone insufficient to sever a joint tenancy, because the plaintiff-joint tenant can always retreat from his demand for partition so long as a final judgment has not been entered. Sheridan v. Lucey, supra. It follows that in the event a joint tenant dies during the pendency of the action to partition, title to the jointly owned real estate passes by right of survivorship to the surviving joint tenant. Id.

In Yannopoulos v. Sophos, supra, this Court held that a valid and enforceable agreement to sell the real estate by both joint tenants was sufficient to sever the joint tenancy. In such case, the Court said, the agreement was effective to pass equitable title to the real estate to the purchaser. Because the parties had placed themselves in a position from which they could not retreat, the Court said, the joint tenancy was severed upon execution of the sales agreement. Id,., 243 Pa.Superior Ct. at 461, 365 A.2d at 1315.

In the case sub judice, it is readily apparent that no enforceable agreement of sale existed between Allison and the Powells. Counsel’s letter of November 4, 1981 evidenced not an agreement but only continuing negotiations between the attorneys for the parties. Moreover, even if we were somehow to conclude that terms and conditions of sale had been agreed upon, it is patently clear that failure to comply with the statute of frauds rendered the agreement unenforceable. Not only were the terms of the sale not defined, but neither the real estate to be sold nor the grantor was identified in counsel’s letter. See: American Leasing v. Morrison Co., 308 Pa.Super. 318, 322, 454 A.2d 555, 557 (1982); Williams v. Stewart, 194 Pa.Super. 601, 607, 168 A.2d 769, 771 (1961). The purported agreement was not signed by the grantor-seller, and there is no suggestion that the seller’s attorney was duly authorized in writing to execute a written agreement on his client’s behalf. See: Charles v. Henry, 460 Pa. 673, 677, 334 A.2d 289, 291 (1975). The trial court properly concluded, therefore, that the parties had not executed an enforceable agreement. Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955); Weir v. Rahon, 279 Pa.Super. 508, 512, 421 A.2d 315, 317 (1980). Without an enforceable agreement, the parties had not placed themselves in a position from which they could not retreat. Equitable title had not passed from Allison during his lifetime; and the four unities of the joint tenancy remained undisturbed. See: Gerlock v. Gabel, 380 Pa. 471, 476, 112 A.2d 78, 81 (1955). See also: 1 Ladner on Conveyancing in Pennsylvania § 2:08 (rev. 4th ed. 1979). It is apparent from the pleadings, therefore, that Allison had not divested himself of his interest in the real estate prior to his death.

Because appellant’s decedent had not divested himself of his interest in the real estate prior to death, his interest passed upon death by right of survivorship to the surviving joint tenant. The joint tenancy had not been severed, and the right of survivorship was not defeated by the pendency of the action in partition.

The order entering judgment on the pleadings is affirmed.

CAVANAUGH, J., files a concurring statement.

CAVANAUGH, Judge,

concurring:

I concur with the majority opinion as I feel compelled to follow the authority of Sheridan v. Lucey, 395 Pa. 306, 149 A.2d 444 (1959). See also, Cobb v. Gilmer, 365 F.2d 931 (D.C.Cir.1966) and Vargos v. Brinton, 305 Pa.Super. 357, 451 A.2d 687 (1982) which held that a partition action taken to judgment is sufficient to sever a joint tenancy with right of survivorship. Nevertheless, the law appears to result in an injustice as one who commences a partition proceeding unequivocally manifests an intent to terminate the relationship of joint tenancy with the right of survivorship. If he dies before the decree in partition is entered, he has not retreated from his intention to terminate the relationship. It is only the event of his death prior to the final decree, and not that the petitioner has changed his mind, that prevents the severance. In a tenancy by the entireties situation, which is in effect a joint tenancy between a husband and wife, if a spouse brings an action in equity against the other spouse who has violated the terms of the entireties agreement by improperly using entireties property, this terminates the relationship. As noted in Stemniski v. Stemniski, 403 Pa. 38, 42, 169 A.2d 51, 53 (1961):

A violation of the rules by one spouse’s appropriating the property to his own use works a revocation of the estate by the fiction of appropriation’s being an offer of an agreement to destroy the estate and an acceptance of that offer when the other spouse starts suit; the property is then fit for accounting and division.

This seems to place the party wishing to terminate an entireties relationship in a far better position than one in the ordinary joint tenancy. I see no basis in law or reason that this should be.

      . The undivided one-half interest of Robert O. and Mary Jane Powell was held by the entireties.

      . Act of March 21, 1772, 1 Sm.L. 389 § 1, 33 P.S. § 1.


author: OLSZEWSKI, Judge:

text:
    481 A.2d 1218
    Nanette KOLLER, Appellant, v. David A. KOLLER.
    Superior Court of Pennsylvania.
    Argued July 12, 1984.
    Filed Sept. 21, 1984.

      Sandor Engel, Allentown, for appellant.
    Richard J. Shiroff, Easton, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

David A. Koller, appellee, filed a petition for modification from a support order entered on April 15, 1982. By the terms of the order, Mr. Koller was to pay $100.00 per week for the support of his two minor children and $50.00 per week to Nanette A. Koller, appellant. On February 3, 1983, after review by the Domestic Relations Section and a hearing, the Honorable Richard D. Grifo filed an order reducing the support to an unallocated $102.00 per week. Mrs. Koller appeals from that order.

The facts of the case are as follows. Mrs. Koller filed a petition for support against Mr. Koller on March 28, 1982, seeking support for herself and the parties’ two minor children. Mr. Koller was then employed as a tool technician with an income of approximately $230.00 per week. The parties reached an agreement for support in the amount of $150.00 per week. The court below accepted the agreement by order of April 15, 1982, including a stipulation that any income earned by the wife would not be the subject of a review for modification while the children remained of tender years. No appeal was taken from the order.

In December 1982, Mr. Koller filed a petition for modification. The basis for this petition was that Mrs. Koller was working increased hours. After conference, the hearing master recommended that the original support order be upheld. Following a hearing before the Honorable Richard D. Grifo, an order was entered reducing Mr. Roller’s support payments to $102.00 per week.

Appellant argues that the lower court abused its discretion in finding a substantial change in circumstances to allow a reduction in the original support order. We agree.

The role of an appellate court in support proceedings is limited; absent a clear abuse of discretion, we will defer to the order of the lower court. Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981). A finding of abuse will be made only upon a showing of clear and convincing evidence. Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 421 A.2d 762 (1980).

An abuse of discretion does not necessarily imply a willful abuse, but if, in 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, 435, 426 A.2d 123, 126 (1981).

The lower court must consider all pertinent facts and base its decision upon facts appearing in the record which indicate that the movant did or did not meet the burden of proof as to changed circumstances. Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983). The petitioner has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original support order. Commonwealth ex rel. Vona v. Stickley, supra. A petition to modify an order of support is not a substitute for an appeal and cannot bring up for review matters adjudicated in making the prior order. Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981). Thus, although a court may disregard a support agreement between the parties, “when the agreement adequately provides for the needs of the children and spouse and has been recently entered into under court approval, unless a change of circumstances can be shown, there is no justification for ignoring the agreement.” 311 Pa.Super. at 40, 457 A.2d at 102.

In the instant case, Mr. Roller did not sustain his burden of proof to show a material change in circumstances underlying the order. His only argument, that Mrs. Roller was working a greater number of hours, was contradicted by the hearing master’s report that Mrs. Roller was earning $3.00 less per week. The court below did not discuss any evidence which would show the required change in circumstances.

The court below based its decision on what it perceived to be an unreasonable support order. Lower court opinion at 2. Nevertheless, it is an error of law to conclude that a settlement agreement for a wife and children in excess of one-third of the supporting spouse’s earning capacity is per se illegal. We have long recognized that the one-third rule does not apply when children are contemplated by the support agreement. Commonwealth ex rel. Lutz v. Lutz, 298 Pa.Super. 473, 444 A.2d 1281 (1982); Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1967). Further, absent a change of circumstances, this matter is not appropriately resolved by a petition for modification, but is properly subject to review through appeal. Commonwealth ex rel. Scanlon v. Scanlon, supra.

The Order is reversed and the Order of April 15, 1982, is reinstated.

POPOVICH, J., concurs in the result.


author: BECK, Judge:

text:
    481 A.2d 1221
    COMMONWEALTH of Pennsylvania v. John L. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1984.
    Filed Sept. 21, 1984.

      William T. Cannon, Philadelphia, for appellant.
    Leslie A. Sudock, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BECK, TAMILIA and HOFFMAN, JJ.
   BECK, Judge:

Appellant John Miller was convicted of third degree murder, possession of an instrument of crime, and criminal conspiracy in connection with the stabbing death of William Hightower in North Philadelphia. On appeal from the judgment of sentence, appellant contends that the trial court erred in denying a defense motion for a mistrial based on the allegedly prejudicial testimony of a Commonwealth witness. We affirm.

The statement complained of was made by Commonwealth witness Otis Canty while being cross-examined by defense counsel. On direct examination, Canty had testified that he and appellant were “a little bit” friendly. Defense counsel decided to probe further into the nature of the relationship between Canty and the appellant, and the following exchange ensued:

Q. You say that on the 30th of November, 1980, you were a little bit friendly with John Miller. What’s that mean, you were a little bit friendly?
A. A little bit.
Q. Is that what you said?
A. Yes, that’s what I said.
Q. All right. What’s that mean, you were a little bit friendly?
A. See, me and him, we had went through this thing because I didn’t come to see him while he was in jail the last time. So he seemed like every time—
MR. CANNON: Objection, Your Honor. Objection. I’m sorry, Mr. Canty. I have an objection. Ask to see the court at sidebar.

N.T. 8/11/81 at 135-36 (emphasis added).

Defense counsel immediately moved for a mistrial. The trial court recessed the jury in order to hold a hearing on the motion. Although the court denied the motion for mistrial, before resuming trial the next day the court offered to give a cautionary instruction. This offer was refused by defense counsel.

While it is clear that, with certain exceptions not relevant to the instant case, evidence of a defendant’s involvement in prior criminal activity is inadmissible, not every reference to prior criminal activity requires a mistrial. Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981). Under the appropriate circumstances, a cautionary instruction will be sufficient to dispel any taint arising from the irrelevant and inadmissible evidence. In Richardson, the Supreme Court held that “[t]he nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required.” 496 Pa. at 526-27, 437 A.2d at 1165.

The court in the instant case did not err in declining to grant a mistrial. First, the statement of the witness was an isolated, passing reference which the Commonwealth did not seek to elaborate upon or otherwise exploit further. The witness’ remark did not give details of the prior offense. Therefore, the nature of the statement was not inherently highly prejudicial.

Secondly, the remark at the issue was elicited by defense counsel on cross-examination. In Commonwealth v. Frank, 263 Pa.Super. 452, 469, 398 A.2d 663, 672 (1979), we held that “[w]hen ... defense counsel puts a question to a witness that cannot be answered fairly without a statement of fact as explanation, then the explanation is deemed to be invited by counsel, and complaint that it was added to the answer cannot be made.” This principle controls the instant case. Defense counsel clearly wanted the witness to explain why he was only “a little bit” friendly with appellant, and counsel persisted in the face of the witness’ reluctance to explain until he received a full answer. The witness’ answer was responsive to the question, and the question could not be answered fairly without some reference to the facts behind the rift in the friendship between the witness and the appellant. Having demanded a complete answer, counsel must accept the answer given. See Commonwealth v. Gilliard, 300 Pa.Super. 469, 475, 446 A.2d 951, 954 (1982) (“It is well settled that the defendant must assume the risk of his counsel’s questions and he cannot benefit on appeal when his own cross-examination elicited an unwelcome response”).

Appellant’s reliance on Commonwealth v. Rivers, 238 Pa.Super. 319, 357 A.2d 553 (1976), is misplaced. Although the objectionable evidence of prior crimes in Rivers was elicited by defense counsel on cross-examination, the testimony was not deemed invited by defense counsel because it was not responsive to counsel’s question. The question required only a “yes” or “no” answer.

At most, therefore, the remarks of witness Canty called for a cautionary instruction. No instruction was given, though, because defense counsel refused the court’s offer to give an instruction. Counsel stated that he was declining the court’s offer because an instruction would only draw further attention to the remark. When counsel chooses to refuse appropriate curative instructions for this legitimate tactical reason, the defense may not plead prejudice on appeal. Commonwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429 (1978); See also Commonwealth v. Kingsley, 480 Pa. 560, 391 A.2d 1027 (1978).

Having found no reversible error, we affirm the judgment of sentence.

      . These exceptions include the use of evidence of prior crimes to establish motive, intent, the absence of mistake or accident, a common scheme, plan, or design, or the identity of the person charged. Commonwealth v. Laughman, 306 Pa.Super. 269, 452 A.2d 548 (1982).

      . Appellant further argues in his brief that the court did not make an effective offer of cautionary instructions because its offer was untimely. The court did not offer to give instructions until the day after it had recessed the jury. Appellant has waived this claim of error because it was not included in his post-trial motions or in his statement of questions presented in his brief, both of which stand on the claim that the court erred in denying a mistrial.

      Furthermore, we find that the trial court acted properly and in appellant's best interests when it recessed the jury in order to give full and careful consideration to appellant’s motion for a mistrial rather than shooting from the hip in the heat of the trial. No proceedings before the jury would have intervened between the witness’ remark and the cautionary instruction. Lapse of time does not automatically render curative instructions ineffective. See Gilliard, where we held that any prejudice arising out of a statement in the prosecutor’s summation was adequately cured by an instruction contained in the charge to the jury.


author: SPAETH, President Judge:

text:
    481 A.2d 1223
    COMMONWEALTH of Pennsylvania, Appellant, v. Ricardo ALVARADO.
    Superior Court of Pennsylvania.
    Submitted Jan. 31, 1984.
    Filed Sept. 21, 1984.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal by the Commonwealth from an order arresting judgment. Appellee was tried by a judge sitting without a jury on charges of burglary and criminal conspiracy. After his demurrer to the Commonwealth’s evidence was denied, appellee presented evidence. The trial judge found appellee guilty, and appellee at once orally moved in arrest of judgment. The court granted the motion, stating that it should have granted the demurrer, and later stating in its opinion that in any case, the evidence was insufficient. The Commonwealth argues that in ruling on appellee’s motion in arrest, the court should not have reconsidered its ruling on appellee’s demurrer, but should have found the evidence sufficient. We agree and therefore reverse and remand for consideration of post-verdict motions.

A court hearing post-verdict motions en banc sits as an appellate court, Commonwealth v. Bonser, 215 Pa. Super. 452, 258 A.2d 675 (1969), and when the trial judge hears the motions alone, he may make any rulings that could be made by a court en banc, Pa.R.Crim.P. 1123(e). An appellate court may not review the correctness of a trial judge’s ruling denying the defendant’s demurrer where the defendant did not rest but instead presented evidence. Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981). Accordingly, here, in ruling on appellee’s motion in arrest, the trial judge should not have reconsidered his ruling on the demurrer. Instead, sitting as an appellate court, he should have determined only whether the evidence was sufficient to sustain his finding that appellee was guilty as charged, and in making that determination, he was obliged to view all of the evidence — the Commonwealth’s and appellee's — in the light most favorable to the Commonwealth. Commonwealth v. Meadows, 411 Pa. 201, 369 A.2d 1266 (1977); Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981); Pa.R.Crim.P. 1102(a).

The evidence may be summarized as follows. At 2:30 a.m. on April 24, 1981, Philadelphia Police Officer Michael Conly, responding to a call, went to the Casablanca Grocery Store on North 16th Street. N.T. 11-12. He observed that the window in the front door had been removed and that the lights were on; the store had not been ransacked. N.T. 12-13. The officer secured the property by nailing a piece of plywood over the opening where the window had been removed, and he then left. N.T. 13-14. When he returned, at 4:30 a.m., the plywood he had nailed up had been removed. Id. Appellee and two other men were inside the store, which by then had been ransacked. Id. The cigarette machine, which was intact at 2:30, had been broken into, and appellee had a trash bag filled with cigarettes. Id. The officer directed appellee and the two other men to come out of the store, but as he began to put them into the back of his wagon, they fled. Between then and the time of appellee’s arrest, Officer Conly saw appellee five or six times. N.T. 16. On each of these occasions appellee fled. Id. Appellee’s father owned the grocery store building but had rented it. N.T. 22-23. Appellee did not have keys to the store but his brother did. N.T. 30.

In holding this evidence insufficient to sustain appellee’s convictions of burglary and criminal conspiracy, the trial court stated that the Commonwealth had failed to establish the element of appellee’s lack of license or privilege to be in the grocery store. Slip op. of trial court at 7. However, the Commonwealth may prove any or all of the elements of any crime by circumstantial evidence. Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979). Here, the circumstances in which Officer Conly found appellee at the store, viewed in the light most favorable to the Commonwealth, lead to the inference that appellee did not have license or privilege to be there. It was 4:30 in the morning; the store had been ransacked; a cigarette machine had been broken; appellee was holding a trash bag filled with cigarettes; and rather than explain, appellee fled, then and on several other occasions.

Reversed and remanded for consideration of post-verdict motions. Jurisdiction is not retained.

      . Since the trial court granted the demurrer, it did not rule on appellee’s argument that his right to confront witnesses against him had been violated. N.T. 51-52. We must therefore remand for consideration of this argument. If it is determined to have merit, a new trial should be granted; otherwise sentencing should proceed.