author: BECK, Judge: DEL SOLE, Judge,

text:
    555 A.2d 199
    COMMONWEALTH of Pennsylvania v. Joseph TAVARES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1988.
    Filed March 7, 1989.

      Robert N. Dellavella, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, DEL SOLE and BECK, JJ.
   BECK, Judge:

Joseph Tavares appeals the judgment of sentence of three to ten years imprisonment following a bench trial in which he was convicted of attempted involuntary deviate sexual intercourse (IDSI), indecent assault, and unlawful restraint.

Tavares, an attendant at Inglis House, a home for handicapped persons, entered the room of David Savage, a nineteen year old resident with cerebral palsy. David was talking with another resident, Michael Panunto, who also has cerebral palsy and who was sitting in his wheelchair next to David’s bed. Tavares asked the two if they wanted to have sex. Thinking he meant “with a girl, not with a man” David said yes. Michael, who communicates through the use of a speak and spell word board, indicated, “No.” Tavares pushed David’s wheelchair against the door to hold it closed. He pulled down David’s bedsheet, removed his bed bag, and placed Michael’s hand on David’s penis. David said “knock it the fuck off, Joe” and Michael removed his hand. Tavares then placed Michael’s hand back on David’s penis, and pushed Michael’s head down to within an inch or two of David’s penis. Michael tried to pull his head back up, but could not overcome Tavares’ hold. The episode ended when David’s father knocked on the door and an attendant brought in lunch trays. Shortly thereafter, Michael telephoned his mother and, with the aid of the speak and spell, communicated what had happened. Mrs. Panunto went to Inglis house where both Michael and David repeated to her the story of what had occurred. Mrs. Panunto reported the incident to the head of nursing, and after a week with no result, she reported the incident to police.

Tavares was convicted in a non-jury trial of attempted IDSI, indecent assault, and unlawful restraint. It appears that post-verdict motions were never formally made. However, the judge ruled upon them. Although failure to file post-verdict motions usually results in waiver of the issues raised, Tavares’ issues raised in the context of ineffectiveness of counsel are properly before us on direct appeal. See Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173 (1985) (issues of ineffectiveness of trial counsel must be raised by new counsel at earliest possible stage of proceedings.)

Tavares contends that trial counsel was ineffective for failing to file post-trial motions and for failing to include all assignments of error therein. In examining a claim of ineffective assistance of counsel, the reviewing court must first determine whether the issue underlying the ineffectiveness claim is of arguable merit. Second, it must be determined whether the course chosen by counsel had some reasonable basis aimed at protecting the defendant’s interests. Finally, the court must find that counsel’s action or inaction resulted in prejudice to the defendant. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Throughout this process the law presumes effectiveness of counsel and the defendant has the burden of proving ineffectiveness. Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395 (1987). As appellant in the instant case contends that trial counsel was ineffective for failing to file post-trial motions, we now consider each of the issues under the three-pronged test for ineffectiveness set forth in Pierce.

We initially test whether Tavares’ first claim has arguable merit. Tavares contends that the trial court erred in convicting him of attempted IDSI and indecent assault as he did not engage in the proscribed conduct with either of the complainants. The IDSI statute provides in pertinent part:

3123. Involuntary deviate sexual intercourse
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

18 Pa.C.S.A. section 3123 (Purdon 1983). The indecent assault statute provides:

3126. Indecent Assault
A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:

(1) he does so without consent of the other person; 18 Pa.C.S.A. section 3126 (Purdon 1983).

Although Tavares did not himself have indecent contact with the complainants, criminal liability was extended to him under the statute relating to liability for the conduct of another, 18 Pa.C.S.A. section 306 (Purdon 1983). Section 306 provides, in pertinent part:

306. Liability for conduct of another; complicity
(a) General rule. — A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
(b) Conduct of another. — A person is legally accountable for the conduct of another person when:
(1) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct.

The issue of whether one may be held criminally responsible for causing an indecent contact between two unconsenting individuals is one of first impression in this jurisdiction. We hold that section 306 imputes criminal liability to the individual who forces unlawful contact between two innocent victims.

Section 306 was derived verbatim from the Model Penal Code. The Official Comment to the Model Penal Code explains that this particular provision restates the “universally acknowledged principle that one is no less guilty of the commission of a crime because he uses the overt conduct of an innocent or irresponsible agent.” Model Penal Code Section 2.06(2)(a), Comment at 300 (Official Draft, 1985). Furthermore, the Official Comment points out that this provision “determined liability by the culpability and state of mind of the defendant, coupled with his own overt conduct and the conduct in which he caused another to engage.” Id. Comment at 303.

We note in passing that other states have acknowledged criminal liability of a third party who has caused two innocent victims to engage in proscribed conduct. For example, the California Court of Appeals, in Commonwealth v. Hernandez, 18 Cal.App.3d 651, 96 Cal Rptr. 71 (1971), sustained the conviction of a woman who compelled her husband, at gunpoint, to have sex with another, nonconsenting woman. Applying what it termed the “innocent conduit theory” the court noted that without this theory “the laws ... would create a crime without a punishable perpetrator.” See also State v. Thomas, 619 S.W.2d 513 (Tenn.1981) (defendant criminally liable for forcing wife to perform fellatio on her husband.); People v. Roberts, 26 Cal.App.3d 385, 103 Cal.Rptr. 25 (1972) (upholding conviction of defendant for instructing children to engage in sexual activities with one another.); State v. Brown, 147 Vt. 324, 515 A.2d 1059 (1986) (defendant criminally liable for forcing victims to have intercourse).

Appellant in the instant case asserts that his conviction under section 306 cannot stand because this statute is unconstitutionally vague and is therefore void on its face. We disagree. In Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976), the Supreme Court of Pennsylvania considered a facial attack on a statute prohibiting public lewdness. In explaining the concept of facial voidness, the court noted:

Appellant urges that we measure the challenged statutory proscription, not against the specific conduct involved in this case, but against the hypothetical conduct that the statutory language could arguably embrace. To do so, however, would require us to adjudicate the rights of parties not presently before the court, at the insistence of a party who does not have standing to assert such rights. It is for this reason that facial attacks on the validity of statutes are not generally permitted, [citations omitted] Absent the assertion of an infringement of the First Amendment freedoms, the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged.

354 A.2d at 245 (emphasis supplied).

The rationale behind permitting facial attacks of a statute only where the First Amendment is implicated was explained by the United States Supreme Court in Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982):

Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand, [citations omitted] One to whose conduct a statute clearly applies may not successfully challenge it for vagueness, [citations omitted] The rationale is evident: to sustain such a challenge, the complainant must prove that the enactment is vague “not in the sense that it requires a peson to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all.” [citations omitted]

Id. at 495 n. 7, 102 S.Ct. at 1191 n. 7. In considering an attack upon a statute for vagueness where the First Amendment is not implicated, therefore, we must examine the vagueness challenge in light of the specific facts of the case at hand. United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); Commonwealth v. Dodge, 287 Pa.Super. 148, 429 A.2d 1143, 1146 (1981) (where a vagueness challenge does not implicate First Amendment freedoms of speech, association, or assembly, the definiteness of a statute will be decided in light of the conduct in which the party challenging the statute has engaged.)

In order to pass constitutional muster “a criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction.” Commonwealth v. Wescott, 362 Pa.Super. 176, 195, 523 A.2d 1140, 1149 (1987). In addition, the statute must provide a standard for law enforcement officials so as to prevent arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). However, the constitutional requirement of notice does not serve to “invalidate every statute which could have been drafted with greater precision,” Wescott, 362 Pa.Super. at 195, 523 A.2d at 1149, and statutes under attack are not “to be tested against paradigms of legislative draftsmanship.” Heinbaugh, 467 Pa. at 6, 354 A.2d at 246.

Tavares asserts that section 306 fails to give notice of the proscribed conduct because one is left to guess as to who may be considered “innocent” or “irresponsible” for purposes of the statute. Tavares further claims that the statute fails in not defining the necessary causal connection between the action of the accused and the proscribed conduct, so as to render the accused culpable for the behavior of another.

As section 306 provides no definitions for the terms at issue, we look to the Statutory Construction Act, 1 Pa.C.S.A. section 1903 (Purdon Supp.1988), which serves as a guide to the interpretation of our Pennsylvania statutes. The Statutory Construction Act provides that “words and phrases shall be construed according to rules of grammar and according to their common and approved usage ...” See also Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978).

Following the direction of the Statutory Construction Act, we look first to the common and approved usage of the terms in question. Webster’s New Collegiate Dictionary (1981 ed.) defines “innocent” as “free from guilt” or “blameless,” and “irresponsible” as “not responsible, said or done with no sense of responsibility.” Both Webster’s Dictionary and Black’s Law Dictionary define cause as “something that brings about an effect or result.” We find no ambiguity in these terms themselves.

As the instant case does not involve a facial attack of a statute based upon its implication of first amendment rights, we are required to apply the terms of the statute to the conduct of the appellant. United States v. Mazurie, supra. Tavares’ conduct consisted of attempting to bring to fruition an indecent contact, namely oral intercourse, between two individuals who, due to cerebral palsy, are confined to wheelchairs and need assistance in the performance of tasks requiring physical movement. It seems clear that the person of average intelligence would understand that the terms “innocent or irresponsible,” as appear in the statute, would apply to individuals who, because they have little or no control over their movement, would be “blameless” or “without responsibility” when a third person of average strenth and dexterity attempts to direct such movement. As to the question of causation, it was for the finder of fact to determine whether or not Tavares’ actions “brought about the effect” of the victims in this case engaging in the proscribed conduct. We therefore conclude that section 306 provided appellant, as well as law enforcement officials, with fair notice that appellant’s actions would render him legally accountable for the conduct of the victims.

As Tavares’ first issue is without arguable merit, it fails to satisfy the first prong of the Pierce test of ineffective assistance of counsel.

Tavares presents several other issues for our review, each of which lacks arguable merit. First, he claims that the trial judge, in imposing sentence, improperly considered the 1982 sentencing guidelines which were held invalid in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). As was noted in Sessoms, individuals sentenced under the guidelines are not entitled to a new hearing unless they specifically challenged the validity of the guidelines at all stages of appeal. Id., 516 Pa. at 380, n. 2, 532 A.2d at 782 n. 2. No such challenge was preserved by Tavares. Even if Tavares were to claim that counsel was ineffective for failing to preserve his Sessoms claim, such an argument would be without merit. Commonwealth v. Bells, 373 Pa.Super. 57, 540 A.2d 297, 300 (1988) (counsel may not be held ineffective for failure to preserve Sessoms claim, as counsel has no duty to predict future developments in the law).

Tavares next contends that the testimony of the victims in this case was so inconsistent and contradictory that it was insufficient to support the verdict of guilt. It is recognized that the credibility of witnesses is for the finder of fact to determine unless the testimony is so unreliable that a verdict based upon it could be no more than surmise or conjucture. Commonwealth v. Smith, 502 Pa. 600, 467 A.2d 1120 (1983). However, “the mere existence of conflict in the prosecution’s evidence is not fatal” and the resolution of such conflict is left to the finder of fact. Id., 502 Pa. at 607, 467 A.2d at 1123. Tavares’ argument is therefore without merit.

Appellant next asserts that victim Michael Panunto, who communicates using a speak and spell, was incompetent to testify at trial. Under Commonwealth v. Bristow, 372 Pa.Super. 48, 538 A.2d 1343, 1346 (1988), a court must look to three factors to determine the competency of a witness: 1) capacity to communicate, including an ability to understand questions and to frame and express intelligent answers; 2) mental capacity to observe and remember the occurrence; and 3) a consciousness of the duty to speak the truth. Although Michael must communicate by spelling out words letter by letter, he is physically, not mentally, incapacitated. His ability to communicate may be slower than that of the average person, but this is merely a result of the apparatus he uses to communicate, not of his inability to understand questions and to frame answers. In addition, as the reason for disqualifying an incompetent witness “derives from the judges’ distrust of the jury’s ability to assay the credibility of such witnesses, the applicability of the rule has little place in non-jury trials.” Commonwealth v. Speicher, 259 Pa.Super. 433, 439, 393 A.2d 904, 907 (1978). We therefore find no merit to appellant’s argument.

Tavares next asserts that the evidence was insufficient to establish that the complainants did not voluntarily engage in the acts. Viewing the evidence as we must, in favor of the Commonwealth as verdict-winner, Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984), we conclude that the testimony in this case was more than sufficient to establish that the victims did not wish to participate in the acts forced upon them.

Tavares’ final contention is that the trial court abused its discretion in permitting the Commonwealth to use leading questions in its direct examination of Michael Panunto. It has been recognized that where a witness is experiencing difficulty in answering questions, it is not an abuse of discretion for the court to permit leading questions. Commonwealth v. Keaton, 276 Pa.Super. 518, 419 A.2d 578 (1980) aff'd., 494 Pa. 566, 431 A.2d 999 (1981). Michael types out words letter by letter on the speak and spell. As a result, it is a difficult and time-consuming proposition for him to communicate a long sentence. It was therefore within the court’s discretion to permit counsel to use leading questions requiring only short answers in the interest of time, and to avoid confusion.

As none of appellant’s contentions have arguable merit as required under the first prong of the test enunciated in Pierce, supra, his claim of ineffective assistance of counsel must fail.

Judgment of sentence is affirmed.

DEL SOLE, J. files a dissenting statement.

DEL SOLE, Judge,

dissenting statement:

I dissent from the disposition of the Majority in this case and would remand the matter to the trial court for the purposes of filing an opinion relative to the issues raised on appeal.

Unfortunately, the trial judge in this case saw fit not to file an opinion but to send to this court, in compliance with Pa.R.A.P. 1925 a letter dated January 25, 1988 directed to the Prothonotary referring to a case of Commonwealth v. Commenger wherein the trial judge pointed out that in that case, since the defendant’s post-verdict motions were not part of the record that she was not required to write an opinion. There is a post script to that letter which states “In the case of Joseph Tavares, Docket No. 01312 Phil. 87, Defendant also failed to file post-verdict motions.” The record does not contain post-verdict motions, and the trial court has said that none were filed. However, the trial judge appears to be inconsistent in her statements on this matter. While the post script indicates no post-verdict motions, the transcript of the proceedings held before the court on April 10, 1987 indicate otherwise. Specifically, defense counsel set forth that while the primary argument on the legal issues had occurred prior to the entering of the verdict, that in order to preserve the record, post-verdict motions were filed. (N.T. April 10, 1987, pg. 4)

The court on the same page stated as follows:

The Court: Having had the opportunity to read both briefs or memoranda, the issue is a fascinating one, but I think my decision originally made was correct when I entered the verdict and I am going to stay with it. ... I am going to formally deny the post-verdict motions and move on to sentencing.

Also, the record reveals that an order was entered on April 10, 1987 by the trial judge wherein she denied post-verdict motions.

Therefore, I would remand this matter to the trial court for the purposes of determining whether or not post-verdict motions were in fact filed, since the trial judge in two places has indicated that they were, and, if they had been properly filed for the purposes of obtaining a trial court opinion on the issues raised by post-verdict motions. I am not in agreement with the Majority’s decision to assume that such motions were never formally made. It may be that they had not been correctly included in the record and the record should be corrected.

      . Both the IDSI and indecent assault statutes contain provisions to penalize those individuals who themselves engage in illicit conduct with those who are mentally deranged or deficient (section 3123(4)), or under supervision in a hospital or institution (section 3126(5)). These sections are not applicable in the instant case.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    555 A.2d 205
    Sylvia A. BUTLER, Appellant, v. ROLLING HILL HOSPITAL, Maria Limberakis, D.O., and K. Niki Cole, M.D.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1988.
    Filed March 7, 1989.
    Petition for Allowance of Appeal Denied Aug. 16, 1989.

      Leonard N. Ross, Philadelphia, for appellant.
    J. Scott Kramer, Philadelphia, for Limberakis, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   ROWLEY, Judge:

This is an appeal from a summary judgment entered in favor of appellee, Maria Limberakis, D.O., (Dr. Limberakis) and against appellant, Sylvia A. Butler, in a medical malpractice action. We affirm.

The relevant facts as stated by the trial court are as follows:

Plaintiff Sylvia Butler went to see [Dr. Limberakis], her family physician, in November of 1983 and complained of swelling in her breasts, an empty feeling and weight gain. [Dr. Limberakis] did not order a pregnancy test as requested by Plaintiff nor did she order one when Plaintiff requested it again in January of 1984. Plaintiff was twenty-four weeks pregnant when the test was later performed.
Plaintiff had undergone a tubal ligation two years prior to this pregnancy. Plaintiff alleges that she did not want more children. She further alleges that it was too late to legally have an abortion performed at the time Plaintiffs pregnancy was confirmed. Thereafter, Plaintiff gave birth to a normal, healthy child.
Plaintiff filed suit against Rolling Hill Hospital and Dr. Limberakis on the basis of failure to properly diagnose her pregnancy. She seeks to recover for the anxiety she experienced and continues to experience, past and future medical costs, pain and suffering, lost earnings and for the expenses of raising her child.

(Trial court Opinion, pp. 1-2).

Dr. Limberakis filed a motion for summary judgment. The trial court entered summary judgment in her favor on the basis that appellant can recover no damages from Dr. Limberakis because the child was born healthy and the “pregnancy did not give rise to a high decree of medical probability that she would give birth to a disabled or deformed child.” (Trial court opinion, p. 2.) The trial court noted that this decision was based on the public policy of Pennsylvania which favors the birth of healthy children. Appellant has appealed from the summary judgment.

On appeal, appellant argues that there is a cause of action against a doctor who fails timely to diagnose a pregnancy resulting in damages associated with the birth of an unplanned child. Appellee argues that the present action is governed by a wrongful birth and wrongful life statute, Act 1988-47, Section 2, codified at 42 Pa.C.S. § 8305, enacted April 13, 1988, (while the present appeal was pending) which explicitly bars appellant’s cause of action. The American Civil Liberties Union and the Women’s Law Project were granted amicus status, and have filed a brief in which they assert that retroactive application of 42 Pa.C.S. § 8305 to the present case is unconstitutional and that the substantive provisions of § 8305 are also unconstitutional.

Pennsylvania law provides that no statute shall be applied retroactively “unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. § 1926; Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983). Sections 7 and 8 of Act 1988-47 provide as follows:

Sections 8305 and 8306 shall not apply to any case in which a final award of damages has been made and with regard to which the time to take an appeal has expired without an appeal being taken.
Except as provided in section 2, sections 8305 and 8306 shall have retroactive effect, including application to any case pending or on appeal. (Emphasis added.)

By explicitly including the phrase “retroactive effect, including application to any case pending or on appeal,” the General Assembly has unambiguously expressed its intention that § 8305 is to be applied retroactively. The legislature could not have more clearly or manifestly expressed its intent.

The amici argue that retroactive application of § 8305 is unconstitutional. Although the amici make no reference in their brief to sections 7 and 8 of Act 1988-47 which expressly provide for the retroactive application of § 8305, we nevertheless must examine their constitutional argument in light of those statutory provisions. In effect, therefore, the amici would like us to hold that sections 7 and 8 of Act 1988-47 applying § 8305 retroactively are unconstitutional. This issue has been waived and we will not address it because no notice of the challenge to the constitutionality of Act 1988-47 has been given to the Attorney General in violation of Pa.R.A.P. 521. Bialczak v. Moniak, 373 Pa.Super. 251, 540 A.2d 962 (1988); Smith v. Smith, 365 Pa.Super. 195, 529 A.2d 466 (1987); Faust v. Messinger, 345 Pa.Super. 155, 497 A.2d 1351 (1985), appeal dismissed, 514 Pa. 286, 523 A.2d 741. See also Matter of Adoption of Christopher P., 480 Pa. 79, 389 A.2d 94 (1978).

Having concluded that the legislature clearly and unmistakably intended for § 8305 to be applied retroactively, we now must examine its applicability to the present case. Section 8305 provides:

(a) Wrongful birth. — There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born. Nothing contained in this subsection shall be construed to prohibit any cause of action or award of damages for the wrongful death of a woman, or on account of physical injury suffered by a woman or a child, as a result of an attempted abortion. Nothing contained in this subsection shall be construed to provide a defense against any proceeding charging a health care practitioner with intentional misrepresentation under the act of October 5, 1978 (P.L. 1109. No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L. 457, No. 112), known as the Medical Practice Act of 1985, or any other act regulating the professional practices of health care practitioners.
(b) Wrongful life. — There shall be no cause of action on behalf of any person based on a claim of that person, that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.
(c) Conception. — A person shall be deemed to be conceived at the moment of fertilization.

(Footnotes omitted.)

In the present case, appellant is seeking damages from Dr. Limberakis on the theory that but for Dr. Limberakis' failure to timely order a pregnancy test and diagnose appellant as being pregnant, appellant would have been able to legally abort the child and would have been able to avoid bearing an unplanned child. Section 8305 expressly provides that there is no cause of action “based on a claim that, but for an act ... of the defendant, a person once conceived would not or should not have been born ... [or] aborted.” We conclude that § 8305 bars appellant’s cause of action against Dr. Limberakis, and affirm the summary judgment.

SUMMARY JUDGMENT AFFIRMED.

      . Appellant also filed a malpractice action against Dr. Niki Cole who performed the tubal ligation. The two actions were consolidated in the trial court. The present appeal involves only the granting of appellee, Dr. Limberakis’, motion for summary judgment. The action against Dr. Cole has not been concluded and is not involved in the present appeal. The instant appeal also does not involve appellant’s suit against Rolling Hill Hospital.

      . Rule 521. Notice to Attorney General of Challenge to Constitutionality of Statute
      (a) Notice. It shall be the duty of a party who draws in question the constitutionality of any statute in any matter in an appellate court to which the commonwealth or any officer thereof, acting in his official capacity, is not a party, upon the filing of the record, or as soon thereafter as the question is raised in the appellate court, to give immediate notice in writing to the Attorney General of Pennsylvania of the existence of the question; together with a copy of the pleadings or other portion of the record raising the issue, and to file proof of service of such notice.

      . We also recognize that the amici have argued that § 8305, substantively, is unconstitutional. However, for the same reason that the issue of the constitutionality of the retroactive application of the Act has been waived, so too is this issue waived.


author:
WIEAND, Judge:
      OLSZEWSKI, Judge,

text:
    555 A.2d 208
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. Millard A. FERTIG, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed March 6, 1989.

      Thomas E. Brenner, Harrisburg, for appellant.
    Robert W. Barton, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a no-fault insurance carrier is required to pay room charges in a nursing home where the insured, who is now a quadriplegic, is being maintained. The trial court entered a declaratory judgment in favor of the insured. We reverse.

On February 2, 1984, Millard A. Fertig was seriously injured when the stopped vehicle in which he was seated was struck in the rear by a moving vehicle. He sustained a traumatic subluxation of the third and fourth cervical vertebrae. Fertig was a patient at the Polyclinic Medical Center in Harrisburg from February 2, 1984 until April 19, 1984, when he was transferred to that institution’s Memorial Building for further care. On June 8, 1984, Fertig was discharged to his home with special equipment and eight hour a day nursing care. His health deteriorated, however, and on August 26,1984, he was admitted to the Community General Osteopathic Hospital, where he remained until September 3,1984. On that date, Fertig was released from the hospital to Blue Ridge Haven East Nursing Home.

The insurance coverage on Fertig’s vehicle was provided by Pennsylvania National Mutual Casualty Insurance Company (PNI). Pursuant to the provisions of the Pennsylvania No-fault Motor Vehicle Insurance Act, PNI paid for all medical and rehabilitative care made necessary by the injuries sustained in the accident. In August, 1986, PNI filed an action for a declaratory judgment to determine whether it had a continuing obligation to pay for Fertig’s room at the nursing home. Having heard the case without a jury, the trial court found that all efforts to rehabilitate Fertig had come to an end but that his physical condition was such as to require continuing custodial care. The trial court held that PNI was required to pay for the insured’s custodial care under the provisions of the No-fault Act. Post-trial motions were denied, and this appeal followed.

The trial court’s findings of fact are supported by the evidence. Dr. Eduardo S. Violago, a rehabilitation specialist who had examined Fertig and reviewed his records, testified that Fertig was no longer a candidate for rehabilitation but continued to need the maintenance and supportive care which were being provided by the nursing home. Dr. Richard Jeffries, the insured’s treating physician, and Valerie Spenser, director of physical therapy at the nursing home, said that rehabilitative services had been stopped, but that support and maintenance care continued to be necessary.

An allowable expense is defined by Section 103 of the No-fault Act, 40 P.S. § 1009.103, as follows:

“ ‘Allowable expense’ means reasonable charges incurred for, or the reasonable value of (where no charges are incurred), reasonably needed and used products, services, and accommodations for:
“(A) professional medical treatment and care;
“(B) emergency health services;
“(C) medical and vocational rehabilitation services;
“(D) expenses directly related to the funeral, burial, cremation, or other form of disposition of the remains of a deceased victim, not to exceed one thousand five hundred dollars ($1,500); and
“The term does not include that portion of a charge for a room in a hospital, clinic, convalescent, or nursing home, or any other institution engaged in providing nursing care and related services, in excess of a reasonable and customary charge for semiprivate accommodations, unless more intensive care is medically required; or any amount includable in work loss, replacement services loss, or survivor’s loss.
Medical and vocational rehabilitation services’ means services necessary to reduce disability and to restore the physical, psychological, social, and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, speech pathology and audiology, optometric services, nursing care under the supervision of a registered nurse, medical social services, vocational rehabilitation and training services, occupational licenses and tools, and transportation where necessary to secure medical and vocational rehabilitation services. A basic loss obligor is not obligated to provide basic loss benefits for allowable expense for medical and vocational rehabilitation services unless the facility in which or through which such services are provided has been accredited by the Department of Health, the equivalent governmental agency responsible for health programs, or the accrediting designee of such department or agency of the state in which such services are provided, as being in accordance with applicable requirements and regulations, (emphasis added).

In Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985), where the plaintiff also had suffered quadriplegia, the Supreme Court held:

Under the No-Fault Act, 40 P.S. § 1009.103, costs for medical and vocational rehabilitative services are recoverable from the no-fault carrier if two conditions are met. First, the services provided the victim must be necessary to reduce his disability and to restore his physical, psychological, social and vocational functioning. Secondly, the services must be rendered by a facility accredited by the Department of Health, an equivalent governmental agency, or the accrediting assignee of the Department or agency.
Services which do not reduce the disability of the victim or restore his functioning, being custodial in nature, would not be recoverable under the No-Fault Act and, thus, would be included in a damage award.

Id., 507 Pa. at 228-229, 489 A.2d at 1303.

Appellee contends that the holding of the Supreme Court in Reilly was based solely on an interpretation of the phrase “medical and vocational rehabilitation services.” He concedes that custodial care in a nursing home is not recoverable as “vocational rehabilitation services.” He argues, however, that such costs are necessary because of the insured’s “medical condition” and, therefore, are recoverable as “professional medical treatment and care.” We reject this argument.

Although it is correct that in Reilly the Supreme Court did not specifically address subsection 103(A) of the No-fault Act, the holding of the Court was not limited in any discernible way. There, as in the instant case, the injured plaintiff had achieved maximum recovery; his injuries had been reduced as much as possible, and he had reached a plateau. His care in the nursing home, as here, had been custodial. It had not been in the nature of medical treatment intended to reduce disability or restore body functions but was intended to provide maintenance and support of a quadriplegic person. Because the care being given by the nursing home was custodial in nature, the Supreme Court held, it was not recoverable under the No-fault Act.

The decision of the Supreme Court in Reilly is determinative of the instant appeal. Appellee is receiving custodial care in the nursing home and not medical treatment. The cost of custodial care is not recoverable under the No-fault Act.

REVERSED.

OLSZEWSKI, J., files a dissenting statement.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. It is my considered judgment that the costs subject to this proceeding are necessary because of the insured’s “medical condition” and, therefore, are recoverable as “professional medical treatment and care.”

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.


author: OLSZEWSKI, Judge:

text:
    555 A.2d 210
    STROUT REALTY, INC., Appellant, v. Grace E. HAVERSTOCK, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed March 6, 1989.

      Lawrence L. Newton, Huntingdon, for appellant.
    David A. Ody, Huntingdon, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the trial court denying appellant’s motion for post-trial relief following a verdict in favor of appellee. For reasons discussed below, we reverse.

On July 20, 1983, appellant and appellee entered into a Business Property Listing Agreement (hereinafter “agreement”) for the sale of a funeral home located in McConnellstown, Huntingdon County. The agreement provided in pertinent part:

I (we), the seller(s), employ you to procure a purchaser, ready, willing and able to buy this property at the listed price and terms, or at a lower price and terms acceptable to me and to accept a deposit thereon____
If you procure a purchaser as defined above, I agree to pay you a commission of 10% of the selling price, or a minimum commission of $200, whichever is greater---I reserve the right to sell the property to a buyer procured by myself or through another agent and in such case no commission or other charge shall be due you, provided such sale or transfer is not made directly or indirectly to or through your prospect____ The listing of this property, and the continued endeavor of STROUT REALTY, INC. or its representatives to sell the same shall constitute a good and sufficient consideration for this agreement.
This agreement is irrevocable but shall terminate with the sale of the property or by either party giving a withdrawal notice in writing which shall become effective thirty days from the date received. This agreement shall expire one year from date without notice unless otherwise terminated as above, or unless I renew or extend it in writing. However, if within six months after the termination date of this agreement, I sell or transfer this property to a prospect procured by you prior to its termination, I shall pay you your commission____

On January 16, 1984, Burgess A. Smith, an agent of appellant, contacted Reverend F. Tim Shafer regarding the subject property. Reverend Shafer, pastor of Heritage Independent Baptist Church, was looking for a permanent meeting place for his congregation. Reverend Shafer informed Mr. Smith that he would contact him if purchase of the property was feasible. Subsequently, on January 16, 1984, Mr. Smith mailed appellee a report concerning his contact with Reverend Shafer.

Mr. Smith showed the property to Reverend Shafer on February 14, 1984. Appellee was also present during the inspection of the building. Reverend Shafer expressed an interest in the property subject to the procurement of financing.

On June 9, 1984, Reverend Shafer informed Mr. Smith that he was in contact with representatives of Stewardship Consultants, Inc. (hereinafter “SCI”), a consulting firm that finances and/or purchases church buildings for young and/or financially troubled congregations. Mr. Smith, on the same day, mailed appellee an information report notifying her that Reverend Shafer was negotiating financing with SCI and the representatives of SCI would inspect the property.

On June 14, 1984, appellee showed the property to representatives of SCI and Reverend Shafer. Mr. Smith was not notified of the meeting and when asked, appellee indicated that a realtor was not involved. SCI negotiated with appellee to purchase the property for $70,000. Reverend Shafer subsequently negotiated with SCI to rent the property with an option to purchase. By deed dated October 12, 1984, appellee sold the property to SCI.

Appellant commenced suit to recover a ten percent commission from the sale of the property, plus interest and costs. The case was referred to arbitration. Following a hearing, the arbitrators found for appellant in the amount of $7,000.00. Appellee appealed from the award of the arbitrators, and, following a non-jury trial on December 19, 1985, the trial court decided in favor of appellee. The court entered judgment following denial of appellant’s post-trial motions. This timely appeal followed.

Appellant urges that the trial court erred in refusing to award appellant a sales commission. Specifically, appellant asserts that it is entitled to a commission because: (1) its agent “indirectly” secured the sale of the subject property through Reverend Shafer; and (2) appellee acted in bad faith with intend to defraud appellant. In this Commonwealth, certain principles of brokerage law are well established. First, a broker cannot recover a commission unless he can prove a contract of employment. Christo v. Ramada Inns, Inc., 609 F.2d 1058, 1061 (3rd Cir.1979), quoting Axilbund v. McAllister, 407 Pa. 46, 55, 180 A.2d 244, 249 (1962). Second, a real estate broker becomes entitled to his commission when he presents a purchaser who is ready, willing and able to purchase the property upon terms satisfactory to the seller. Zitzelberger v. Salvatore, 312 Pa.Super. 402, 458 A.2d 1021 (1983), citing Dixon Estate, 426 Pa. 561 n. 2, 233 A.2d 242, 244 n. 2 (1967); Sork v. Rand, 422 Pa. 512, 517, 222 A.2d 890, 893 (1966); Kizer and Associates, Inc. v. Naylor, 254 Pa.Super. 143, 145, 385 A.2d 566, 567 (1978); Shumaker v. Lear, et al., 235 Pa.Super. 509, 512, 345 A.2d 249, 251 (1975); White Realty and Insurance Agency Co. v. Moreland et ux., 215 Pa.Super. 423, 427, 259 A.2d 461, 463 (1969). Third, “the mere fact that the broker has carried on negotiations with a prospective buyer ... does not entitle the broker to a commission unless his efforts constituted ‘the efficient procuring cause of the sale....’ ” Axilbund, supra (citations omitted); see also Christo, supra. Moreover, when the prospective buyer and the broker-agent fail to reach an agreement and there is a break in their negotiations, and, at a later date, the property is sold to the same prospective buyer, the original broker is not entitled to a commission. Axilbund, supra.

Essentially, appellant’s theory of recovery is that he earned a commission by being responsible for the sale of the funeral home to SCI. To establish its entitlement to a brokerage commission, appellant had to prove all of the above-cited requirements. There is no question that there was a contract of employment between appellant and appellee. The agreement was an open non-exclusive listing agreement under which appellee non-exclusively authorized appellant to sell her building while retaining the right to sell the property herself. Moreover, because there was evidence of a sale of the property on appellee’s terms, the trial court could have found that appellant satisfied the second requirement needed to recover a commission. See Christo v. Ramada Inns, Inc., 609 F.2d 1058, 1062 (3rd Cir.1979); see also infra. The issue becomes, therefore, whether appellant was the efficient procuring cause of the sale to SCI.

To satisfy the third requirement, appellant had to prove that Reverend Shafer gave the information provided by appellant to SCI, which caused SCI to undertake the purchase. Id. In Christo, the plaintiff-broker sought to recover a commission for the sale of a hotel to Airport Motels, Inc. (hereinafter “Airport”). The broker’s theory of recovery was that, although he had never had contact with Airport, Airport received the information from representatives of Ramada Inns, Inc. (hereinafter “Ramada”), to whom the broker had provided information. Therefore, the broker asserted that he was the efficient procuring cause of the sale.

In support of his position, however, the broker offered circumstantial evidence that the court found insufficient to sustain the broker’s theory of recovery. Importantly, the court emphasized that there was uncontradicted testimony from representatives of Airport and Ramada that information obtained by Ramada from the broker was never conveyed to Airport.

In resolving this issue, the Christo court, applying Pennsylvania law, opined:

In light of the precedent of Queen v. Commonwealth Trust Co., 64 F.2d 946 (3d Cir.), cert. denied, 290 U.S. 662, 54 S.Ct. 77, 78 L.Ed. 573 (1933), [the evidence presented herein] is legally insufficient to justify submitting the issue of efficient procuring cause to a jury. In Queen the plaintiff sought a commission on the sale of a stock interest in a railroad company to the Pennsylvania Railroad Company (PRR). Plaintiff discussed the possibility of a sale of the stock with two vice presidents of the PRR, who did not have authority to purchase the stock for the PRR. The PRR subsequently purchased the stock from one of its directors, who had obtained the stock for the railroad. The vice presidents testified that they had not conveyed any information received from the plaintiff to anyone in the PRR with authority to acquire the stock. This evidence showed opportunity to convey the information, motive to set up the acquisition through the director so as to deny plaintiff a commission, and a time frame from which it could be inferred that plaintiff’s information had caused the PRR to undertake the acquisition. The trial court granted a directed verdict in favor of the defendant, which was affirmed by this court. The jury may not make a finding of efficient procuring cause based upon speculation. As noted in Queen, supra at p. 948:
“Such a situation as is here presented commonly arises in the business world where two or more men are struck with a similar business idea and attempt to carry it out independently of each other.”

Christo, supra, at 1062-1063.

Instantly, the evidence presented at trial clearly establishes that Reverend Shafer conveyed the information obtained from Mr. Smith to SCI. Reverend Shafer testified as follows:

[Appellant’s attorney]: Reverend Shafer, could you tell us how you were first contacted and by whom concerning the property which is now your church?
[Reverend Shafer]: [Mr.] Smith contacted me by telephone, made me aware.
* * * # * *
[Appellant’s counsel]: Did, in fact, Mr. Smith get back to you sometime in 1984?
[Reverend Shafer]: Yes, he did____ I’m not sure what his initial question was but within that conversation he wanted to know of our interest. I think I told him that in April I had been in California and had been in contact with some people in Florida that helped young churches get started and I really didn’t know what was going to transpire in regards to that contact with the group in Florida.
[Appellant’s counsel]: You told him about the group in Florida. Did you tell him they were coming up? [Reverend Shafer]: At the time of our phone conversation, I was working with them to come. I didn’t know the details at the time.
[Appellant’s counsel]: You mentioned you had heard about this group from Florida. Tell us what this group does.
[Reverend Shafer]: Stewardship Consultants, Incorporated is an organization that was put together by a pastor, mortgage broker and attorney, retired, for the purpose of helping either ... churches that were close to bankruptcy or young churches to get into building programs when conventional financing was not appropriate.
[Appellant’s attorney]: Is it fair to characterize this group then as primarily a financing group to get churches started?
[Reverend Shafer]: Yes, yes, I would agree with that statement.
[Appellant’s attorney]: At that point in time in June of 1984 when you talked to Mr. Smith on the phone and specifically, I believe, you testified it was June 9, 1984. [Reverend Shafer]: That would be, yeah.
[Appellant’s attorney]: Your hope was that this church group would become interested enough to enable you to secure this property, is that correct?
[Reverend Shafer]: Yes.
[Appellant’s attorney]: Did, in fact, representatives from Stewardship Consultants, Incorporated come to Hunting-don County to look at this property?
[Reverend Shafer]: That’s correct, they did.
[Appellant’s attorney]: Do you know when they came to look at the property?
[Reverend Shafer]: Yes. Our church at our expense flew them into Pittsburgh on June the 13th. I picked them up by automobile at Pittsburgh, brought them to the Huntingdon area.

Transcript at 20-23.

We find that appellant was the efficient procuring cause of the sale of the property to SCI. If it had not been for appellant’s initial contact with Reverend Shafer, the sale to the Florida-based SCI, in all probability, never would have occurred. Moreover, while we acknowledge that appellant bears the burden of proof in this case, appellee has presented no evidence (and the record is devoid of any indication) that SCI learned of the subject property from anyone other that Reverend Shafer. Most importantly, Reverend Shafer’s testimony clearly establishes that he conveyed the information provided by appellant regarding the property to SCI. This fact satisfies the test for efficient procuring cause delineated in Christo.

Finally, we note that the time frame of the sale permits appellant to recover a commission, for the contract provided that “... if within six months after the termination date of this agreement, I sell or transfer this property to a prospect procured by you prior to its termination, I shall pay you your commission.”

We hold that appellant is entitled to a 10% commission for the sale of the funeral home, with interest from October 12, 1984, and costs. The order of the trial court is reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Specifically, the broker’s evidence consisted of the following three pieces of circumstantial evidence: (1) proof of a meeting between a representative of Ramada and a representative of Airport; (2) evidence that Ramada may have earned a profit from Airport’s operation of the motel under a franchise agreement; and (3) evidence that Ramada’s representative did not answer two letters from the broker mailed after the meeting with Airport’s representative.

        . The record indicates that SCI inspected the property on June 14, 1984, the listing agreement expired on July 20, 1984, and the deed was transferred on October 12, 1984.


author: WIEAND, Judge:

text:
    555 A.2d 214
    Kathleen A. HODGEN, Appellant, v. Richard L. SUMMERS and Joyce E. Gallagher, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1988.
    Filed March 6, 1989.
    Petition for Allowance of Appeal Denied Aug. 22, 1989.

      Gregory Martin, York, for appellant.
    Val E. Winter, York, for Summers, appellee.
    Bruce Bankenstein, York, for Gallagher, appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

Kathleen Hodgen filed a complaint against Richard Summers and Joyce Gallagher in which she sought to recover damages for personal injuries sustained in a vehicular accident occurring on September 13, 1985. More than two years after the accident had occurred, she requested leave of court to amend her complaint in order to add a claim for the damages to her vehicle arising from the same accident. The trial court denied this request, holding that a claim for property damage was barred by the two year limitation imposed by 42 Pa.C.S. § 5524(3). Plaintiff appealed. We affirm.

The applicable law is stated at 5 Std.Pa.Prac. § 24:41 as follows:.

Although Rule 1033 of the Pennsylvania Rules of Civil Procedure generally permits the amendment of a complaint to include new causes of action, the' Rule does not change the well-established principle that an amendment which introduces a new cause of action which is barred by the statute of limitations will not be allowed. This principle is based on the broad proposition that the courts, while disposed to be liberal in the allowance of amendments, and to construe the amendment rules liberally so as to prevent the defeat of justice through mere mistake, do not allow amendments which will prejudice the defendant by depriving him of some substantial right. The criterion for determining whether or not an amendment may be made after the statute of limitations has run is whether the defendant will be prejudiced by the amendment or whether the cause of action is changed thereby. The general principle that amendments which will deprive the opposite party of any valuable right. Thus, after the statute of limitations has run, the plaintiff cannot, by an amendment, shift the ground of complaint set forth originally, or enlarge its surface by introducing a new and different cause of action, or cure a material, vital, or fatal defect in his complaint; an amendment to a complaint in an action instituted within the statutory period is not permissible after the expiration of that period where, in reality, the purpose is to introduce a new cause of action, (footnotes omitted).

Thus, our courts have held that “an amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant. However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run.” Laursen v. General Hospital of Monroe County, 494 Pa. 238, 243, 431 A.2d 237, 239 (1981), quoting Schaffer v. Larzelere, 410 Pa. 402, 407, 189 A.2d 267, 270 (1963). See also: Sanchez v. City of Philadelphia, 302 Pa.Super. 184, 188, 448 A.2d 588, 591 (1982). “In determining whether a wholly different cause of action is introduced by the amendment, technical considerations or ancient formulae are not controlling; nothing more is meant than that the defendant shall not be required to answer a wholly different legal liability or obligation from that originally stated. The test is not whether, under technical rules of pleading, a new cause of action is introduced, but rather, the test is whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” 61A Am.Jur.2d Pleading § 322. “The tests to be applied when the question presented is whether an amended [complaint] presents a new and different cause of action are, would a judgment bar any further action on either, does the same measure of damages support both, is the same defense open in each, and is the same measure of proof required?” Sanchez v. City of Philadelphia, supra, 302 Pa.Superior Ct. at 187, 448 A.2d at 589-590, quoting Saracina v. Cotoia, 417 Pa. 80, 85, 208 A.2d 764, 767 (1965).

A claim for property damage is different than a claim for personal injuries. It is different in nature than a claim for personal injuries, involves issues of ownership not present in a claim for personal injuries, and requires application of a different measure of damages. Most significantly, an amendment adding a property damage claim which is barred by the statute of limitations will prejudice the defendants by subjecting them to a claim which is outlawed by the lapse of time. It will do so without permitting them to raise as a defense the bar of the statute of limitations which would otherwise be available to them. Cf. Schwab v. Oesterling & Son, Inc., 386 Pa. 388, 126 A.2d 418 (1956); Sanchez v. City of Philadelphia, supra.

Under these circumstances, the trial court did not err when it denied plaintiffs motion to amend her complaint.

ORDER AFFIRMED.


text:
    555 A.2d 216
    GARRETT ELECTRONICS CORPORATION v. KAMPEL ENTERPRISES, INC. and Larry J. Kampel, Jr. v. GINGRICH-STOUDT INSURANCE AGENCY, INC. and Hartford Accident and Indemnity Company. Appeal of KAMPEL ENTERPRISES, INC. and Larry J. Kampel, Jr.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1988.
    Filed March 6, 1989.

      Rees Griffiths, York, for appellants.
    David L. Schwalm, Harrisburg, for Hartford, appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

Garrett Electronics Corp. (Garrett), a lessee, commenced an action against its lessors, Larry J. Kampel, Jr. and Kampel Enterprises, Inc., to recover for property damaged and business losses sustained when the roof collapsed on the demised premises in which it conducted business. With Garrett’s approval, Hartford Accident and Indemnity Company (Hartford), the lessee’s insurance company, and Gingrich-Stoudt Insurance Agency, Inc., the lessee’s insurance broker, were joined as additional defendants. Hartford filed preliminary objections to the defendants’ complaint on grounds that the joinder was improper. The trial court sustained the preliminary objections and dismissed the complaint effecting joinder because the joinder was not permitted by Pa.R.C.P. 2252(a). The defendant-lessors appealed. We affirm.

Garrett had been insured pursuant to a comprehensive business policy which had been sold by Gingrich-Stoudt Insurance Agency and issued by Hartford. After the roof collapsed, Garrett made a claim against Hartford for business interruption damages. Hartford denied the claim. Garrett, therefore, filed a separate action against Hartford and Gingrich-Stoudt. This action was settled without payment of any money by Hartford. It was after this settlement that the attempt was made to join Hartford as an additional defendant in Garrett’s action against its lessor.

The right to join additional defendants is governed by Pa.R.C.P. 2252(a), which provides:

In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.

This rule is to be broadly construed to effectuate its purpose of avoiding multiple lawsuits by settling in one action all claims arising out of the transaction or occurrence on which plaintiff’s cause of action is based. Samango v. Pileggi, 363 Pa.Super. 423, 428, 526 A.2d 417, 420 (1987). However, “[j]oinder is permitted only so long as the additional defendant’s alleged liability is related to the claim which the plaintiff asserts against the original defendant.” DiLauro v. One Bala Avenue Associates, 357 Pa.Super. 209, 219, 515 A.2d 939, 945 (1986). Although joinder on the grounds of sole or joint liability must still be based “on the cause of action declared upon by the plaintiff,” this phrase has been broadly construed to mean the harm of which the plaintiff complains. See: 8 Goodrich-Amram 2d §§ 2252(a):5-8. An additional defendant may also be joined if it is alleged that he is liable to the joining party on any cause of action “arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.” Pa.R.C.P. 2252(a). See: Free v. Lebowitz, 463 Pa. 387, 344 A.2d 886 (1975).

In the instant case, the defendant-lessors, by joining Hartford as an additional defendant, sought to have the plaintiff-lessee litigate a separate cause of action against its insurance company. The plaintiff-lessee’s action against its lessors had been based upon alleged negligence in the maintenance of the demised premises. The defendant-lessors sought to force the plaintiff to litigate in the same action the insurance coverage issue. This issue depends on the terms of the insurance policy written by the additional defendant insurer. The maintenance of the premises by the landlord and the coverage purchased by the lessee from its insurance company are distinct transactions. The evidence which will establish the lessors’ duty to their tenant is separate and distinct from the evidence which will determine the type of coverage provided to the lessee by its insurer. In such a situation joinder is inappropriate. See: Stokes v. Loyal Order of Moose Lodge #696, 502 Pa. 460, 466 A.2d 1341 (1983); Austin J. Richards, Inc. v. McClafferty, 371 Pa.Super. 269, 538 A.2d 11 (1988); Samango v. Pileggi, supra.

We reject the lessors’ contention that they are joint tortfeasors with Hartford in causing plaintiff’s loss. “When the acts of two or more wrongdoers are severable as to time, the wrongdoers have no opportunity to guard against [each] other’s acts, and each of the wrongdoers breaches a different duty owed to the injured plaintiff, they are not joint tortfeasors.” Pratt v. Stein, 298 Pa.Super. 92, 150, 444 A.2d 674, 704 (1982), citing Lasprogata v. Qualls, 263 Pa.Super. 174, 179, 397 A.2d 803, 805 (1979). See also: Klotz v. Superior Elec. Products Corp., 498 F.Supp. 1099 (E.D.Pa.1980); Voyles v. Corwin, 295 Pa.Super. 126, 441 A.2d 381 (1982). The duty which Hartford is alleged to have breached is different, not only in kind but also in time, from the duty which the defendant-lessors are alleged to have breached. The lessors and the lessee’s insurance company were not jointly liable on the cause of action alleged by the plaintiff-lessee. Neither did such liabilities arise from the same transaction or occurrence. Therefore, the trial court properly dismissed the joinder.

Order affirmed.

      . Gingrich-Stoudt Insurance Agency, Inc. is not involved in the present appeal.