author:
CIRILLO, President Judge:
      KELLY, Judge,

text:
    546 A.2d 665
    Edward DURKIN, James Durkin, Jr. and Herve Filion, Individually and Doing Business as Snow Shoe Farms, Appellants, v. EQUINE CLINICS, INC. and Joseph Deleo.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1987.
    Filed Aug. 10, 1988.

      Lauren Scott, Philadelphia, for appellants.
    George J. McConchie, Media, for appellees.
    Before CIRILLO, President Judge, and TAMILIA and KELLY, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County denying a motion to remove a compulsory nonsuit against appellants Edward Durkin, James Durkin, and Herve Filion [referred to collectively as “the Durkins”], who filed suit individually and as Snow Shoe Farms. In so doing, appellants in effect appeal the trial court’s decision to grant a motion in limine disallowing certain statements to be introduced as evidence at trial.

This appeal arises out of the death of appellants’ standardbred stallion, Josiah, who died, apparently of anaphylactic shock, after receiving a drug dose from appellee Joseph DeLeo, D.V.M. Josiah was stabled at Brandywine Racetrack under the care of Kenneth Seeber, D.V.M., a shareholder and employee of appellee Equine Clinics, Inc. Dr. Seeber had prescribed and was administering a regimen of drugs to the horse which included the enzyme, kymotripsin, brand-name Kymar. Because Dr. Seeber had to be away from the racetrack on August 21st, he left Josiah in the care of Dr. DeLeo, asking him to carry out the regimen as prescribed. Dr. Seeber received a call at the airport from Dr. DeLeo, also an employee of Equine Clinics, who allegedly informed him that Josiah had died within ten minutes of his administering the drugs.

The Durkins brought suit for damages arising from the death of their horse. The matter went to trial on December 16, 1980. At trial, they argued that the horse’s death was caused by the drug Butazolidin which had been administered in twice the recommended dosage. Equine Clinics and Dr. DeLeo, appellees in the case, introduced evidence to show that Butazolidin could not produce an allergic reaction in a horse. The jury returned a verdict for appellees, and the trial judge entered judgment accordingly.

Appellants then appealed to this court. A panel of this court held that the trial court’s failure to instruct the jury that Dr. DeLeo’s administering Butazolidin in an amount in excess of the manufacturer’s recommended dosage was evidence from which the jury could infer that appellees had been negligent. The case was then remanded for a new trial. 313 Pa.Super. 75, 459 A.2d 417.

Before the second trial was to begin, appellees filed a motion in limine to bar admission of a statement made by Dr. Seeber to the Durkins the day following the death of their horse, indicating that the horse had died from a drug overdose, and a taped statement that Dr. Seeber had made to an insurance carrier investigator in February of 1972 while he was an employee and shareholder of Equine Clinics. That taped statement included Dr. Seeber’s acknowledgment that he had instructed Dr. DeLeo to administer the same drug regimen to Josiah that he had been administering, that the prescribed regimen included Kymar for lameness in the left hind leg, and that the enzyme could cause anaphylactic shock in a horse. He also said in his statement that Dr. DeLeo told him in the phone call that the horse had died of anaphylactic shock immediately after he had administered the drug regimen which had included Kymar. Dr. Seeber had testified to the contents of the taped statement at the first trial, and the statement was introduced into evidence by appellees.

The motion in limine was granted after argument, and the matter proceeded to trial. The trial judge entered a compulsory nonsuit against appellants; their motion to remove the nonsuit was denied. They then appealed to this court.

The Durkins argue on appeal that the trial court erred in refusing to remove the compulsory nonsuit because Dr. Seeber’s statements were admissible and therefore appellants had presented sufficient evidence to go to the jury. Appellants further argue that Dr. Seeber’s statements were admissible because they fall under the vicarious admission exception to the hearsay rule, the judicial admission exception to the hearsay rule, and the prior inconsistent statement exception recently articulated by our supreme court in Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). They also contend that the trial court erred in refusing to admit the statements on the basis that those statements were ostensibly based on inadmissible hearsay — Dr. DeLeo’s supposed statements to Dr. Seeber that he did in fact administer Kymar to the horse.

On appeal from an order denying a motion to remove a compulsory nonsuit, we must consider the record to determine whether the trial court properly applied the well-established standard for entry of a compulsory nonsuit. A nonsuit can only be entered in clear cases, and the plaintiff must be given the benefit of all evidence in his favor along with all favorable inferences that may be drawn from it. Any conflict in the evidence must be resolved in his favor. If a jury, viewing the evidence in the light most favorable to the plaintiff, could not reasonably determine that all the elements of the cause of action have been established, then the nonsuit is proper. Kuriger v. Cramer, 345 Pa.Super. 595, 602, 498 A.2d 1331, 1334-35 (1985). In this case, we must determine whether the trial court erred in holding the evidence in question inadmissible. We will reverse the ruling of the trial court only for an abuse of discretion. Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 56, 497 A.2d 637, 641 (1985). Should we find that the evidence was improperly excluded, the order granting the nonsuit would have to be reversed.

The Durkins argue that under the recent supreme court decision of Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), the insurance statement given by Dr. Seeber should be permitted into evidence. They argue that Dr. Seeber’s testimony at the first trial was contradictory to the statement that he had given to the insurance company some six months after Josiah’s death, and that if he is called as a witness at the second trial, his testimony will continue to be inconsistent.

In Brady, the supreme court jettisoned an entire area of evidentiary law, and attempted to follow commentators perhaps less well-experienced in trial advocacy than the justices of the appellate courts of this Commonwealth. The court held that where a declarant is a witness at a judicial proceeding and is available for cross-examination, that declarant’s out of court statements may be admitted as substantive evidence for the truth of the matters asserted in them. Brady, 510 Pa. at 131, 507 A.2d at 70. Brady is now the law of this Commonwealth, although it should be noted that not even the Federal Rules of Evidence have taken as liberal a stance; under the Federal Rules, the prior inconsistent statement must have been given under oath before it can be accepted as substantive evidence. See F.R.E. 801(d)(1)(A).

In any event, we find that Brady is not applicable in this case. We note that the holding of the supreme court reads “otherwise admissible prior inconsistent statements ... may be used as substantive evidence.” Brady, 510 Pa. at 131, 507 A.2d at 70. Because we find that the facts in Brady differ substantially from those confronting us, and because we do not find that the insurance statement in question would be otherwise admissible considering the double hearsay with which it is riddled, we find that the statement is not admissible under Brady.

In Brady, a witness called by the Commonwealth recanted a previous statement made to police officers that she had been with Brady, that their car had been wrecked in a ditch, and that she and Brady had walked from their car to a plant where Brady had scuffled with and then stabbed a security guard. On direct examination she denied that they had entered the plant. The Commonwealth then cross-examined the witness using her prior inconsistent statement after the court ruled that she was a hostile witness. It was on these facts, facts which the trial court had called “the classic case to illustrate why the prior statement should be admitted substantively,” id., that the supreme court declared that prior inconsistent statements could in fact be introduced for the truth of the matter asserted.

The benefits of allowing the statement in as substantive evidence here are not so clear. At the first trial, Dr. Seeber testified on direct examination that he told Dr. DeLeo to give the horse a regimen of drugs which did not include Kymar, that he asked Dr. DeLeo on the phone what he had given the horse, and that Dr. DeLeo responded he had treated the horse as Dr. Seeber instructed him. His statement to the insurance company states, however, that he asked Dr. DeLeo to treat the horse, that he told Dr. DeLeo what the horse was to have, and that on the phone Dr. DeLeo told him the horse had died “immediately after the administration of this regimen consisting of aziumycin, fenylbutazone and Karmar [sic].” The purpose for which the appellants wish to introduce the statement into substantive evidence is not for proof of what Dr. Seeber himself did or did not do. He is not a party to this case. They are concerned with the statements which indicate that Dr. DeLeo, who is a party, administered Kymar contrary to the position he has taken to this point.

Dr. Seeber’s statement that Dr. DeLeo had administered Kymar is not “otherwise admissible.” This is a blatant instance of hearsay within hearsay; fit Dr. DeLeo’s alleged statements under no exception to the hearsay rule. The situation here is more akin to the case of Commonwealth v. Baez, 494 Pa. 388, 431 A.2d 909 (1981) than to Commonwealth v. Brady, supra. In Baez, the Commonwealth attempted to cross-examine the defendant with a statement supposedly taken from a friend of his, one Reinaldo Castillo. Because the statements of Castillo were merely hearsay, and not adopted by Baez, the witness whose credibility was to be impeached, they were not permissible impeachment evidence. Id., 494 Pa. at 394, 431 A.2d at 912. In this case, should Seeber be called by the Durkins, he would clearly authenticate his statement. Ostensibly, he is the witness whose testimony is being impeached. It is also probable that, unlike the Baez case, Seeber would be extensively questioned concerning his statement. The substantive evidence, however, does not in any way indicate what he himself did or did not say. His statements not only redounds against Dr. DeLeo, but allows into evidence hearsay statements about DeLeo that he himself denied making. Allowing the statement in for substantive evidence would allow in evidence that DeLeo told him that he, DeLeo, administered the drug. As the court stated in Baez, quoting the eminent Justice Musmanno:

“The primary object of a trial in American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify. If it were not for this absolute sine qua non, trials could be conducted on paper without the presence of a single flesh and blood witness. But with such a pen-and-ink procedure, there would be no opportunity to check on testimonial defects such as fallacious memory, limited observation, purposeful distortions, and outright fabrication. The great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable and often-tainted judgment. Accordingly, nothing is more adamantly established in American trial procedure than that no one may testify to what someone else told him. He may only relate what is within his own memory brought to him by the couriers of his own senses.” (Citation omitted). The statement in question here is precisely the type of unreliable out-of-court declaration the hearsay rule was designed to exclude. Indeed, the problems associated with hearsay are multiplied here, as we are presented with an extrajudicial written statement which incorporates an extrajudicial oral statement.

Id., 494 Pa. at 395-396, 431 A.2d at 913. Unlike the situation in the Brady case, the matters contained in Dr. Seeber's statement for which that statement is offered as proof are themselves inadmissible hearsay, fitting within no exception to the hearsay rule.

The Durkins also argue that Dr. DeLeo’s statements are admissible into evidence even if they are hearsay within hearsay, because they are the admissions of a party opponent, and in that way fit into an exception of the hearsay rule . We cannot accept this argument, for reasons we will fully discuss later in this opinion. Here we will merely say that although the statements made by Dr. DeLeo may be admissible against him as party admissions, they cannot be held admissible against Equine Classics, also a party in this action. There is no evidence to indicate that Dr. DeLeo was authorized to make such an admission for Equine Classics. See Murray v. Siegal, 413 Pa. 23, 31, 195 A.2d 790, 794 (1963); Yubas v. Makransky, 300 Pa. 507, 511, 150 A. 900, 902 (1930). To attempt to caution the jury to use those statements only against DeLeo, and not consider them when determining the liability of Equine Classics would be to attempt the impossible. The liability of both are inextricably intertwined. For this reason, we would hold that the statements allegedly made by Dr. DeLeo would be too prejudicial to Equine Classics to be allowed into the case. Cf Baez, 494 Pa. at 395, 481 A.2d at 913.

The Durkins next argue that Dr. Seeber’s testimony at the first trial, including the insurance statement, is admissible under the judicial admission exception to the hearsay rale. The Durkins argue that since Equine Clinics called Dr. Seeber as a witness at the first trial, they have vouched for Ms credibility. Therefore, his statements must be considered as Equine Clinics’ admissions, and, thus, properly admissible under the judicial admission exception. We find that merely because Dr. Seeber’s credibility might have been vouched for by Equine Climes at the first trial by its decision to call Mm as a witness, his ability to admit certain facts on behalf of Equine Clinics and Dr. DeLeo was not, and that, in any case, Ms testimony lacked the clearness and unequivocality which characterize a judicial admission.

•A judicial admission is a device by which a trial may be expedited through the elimination of the need for proof of certain facts which are not disputed:

Judicial admissions are not evidence at all, but are formal pleadings in the case, or stipulations, oral or written, by a party or his counsel which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Thus the judicial admission, unless it should be allowed by the court to be withdrawn, is conclusive in the case, whereas the evidential admission is not conclusive, but is always subject to be contradicted or explained.

Packel & Poulin, Pennsylvania Evidence, section 805.5 at p. 666 (1st ed. 1987) (quoting McCormick, Evidence § 262 at (3rd ed. 1984) (citations omitted)). See also 4 Wigmore, Evidence § 1059 at 27 (Chadbourn rev. 1972). The types of facts contemplated as being admitted through the judicial admissions exception are, for example, pleadings, a party’s failure to respond as required by the pleading rules, a party’s responses or failure to respond to requests for admissions, or a party’s answers to interrogatories. Tops Apparel Manufacturing Co. v. Rothman, 430 Pa. 583, 587, 244 A.2d 436, 438 (1968); see also Packel & Poulin, supra, § 805.5 at 667. The testimony of a party at a prior trial or deposition does not always have the force of a judicial admission. In fact, commentators are reluctant to label it as such. Some have characterized it as an “informal” judicial admission, 29 AmJur. § 615 at 669 (2nd ed. 1967), or a quasi-admission, Wigmore, supra, § 1058 at 26. Leonard Packel and Anne Poulin, in their recent treatise on Pennsylvania evidence, state that testimony of a party may sometimes be a judicial admission. Packel & Poulin, supra, § 805.1 at 656. The difference becomes important because facts testified to by a party may in some instances be explained, whereas a true judicial admission may not be contradicted by the party against whom it is offered. Packel & Poulin, supra, § 805.5 at 667.

Because the testimony by a party at a prior trial or deposition does not necessarily serve the procedural purpose of eliminating the need for proof of the facts to which it attests in the same way that a fact admitted in a stipulation does, only testimony which is unequivocal and clear will be treated as a judicial admission:

The rule that a plaintiff is bound by his own testimony “has been limited to situations in which a party’s testimony amounts to such a stipulation or waiver as to have the force of a judicial admission, and has been said to apply only if a party’s testimony is clear and unequivocal and not when it is inconsistent and conflicting.”

Jerominski v. Fowler, Dick & Walker, 372 Pa. 291, 294, 93 A.2d 433, 435 (1953); see also Greater Valley Terminal Corp. v. Goodman, 405 Pa. 605, 608, 176 A.2d 408, 410 (1962) (where witness’ testimony is not clear and unequivocal, but is contradictory and confusing, it will not be treated as conclusive judicial admission). See, e.g., Thomas v. Hutchinson, 442 Pa. 118, 275 A.2d 23 (1971) (deposition testimony that did not contain clear statement of agency was not judicial admission).

The judicial admissions exception contemplates admitting the testimony of parties, not mere third party witnesses. The definition of “admissions” in Black’s Law Dictionary reads:

Confessions, concessions or voluntary acknowledgments made by a party of the existence of certain facts. More accurately regarded, they are statements by a party, or someone identified with him in legal interest, of the existence of a fact which is relevant to the cause of his adversary.

Black’s Law Dictionary 44 (5th ed. 1979) (emphasis added). The statements of a third person may be considered the admissions of a party if they are bound to that party because of agency, joint or common interest, or having vouched for their credibility and impliedly asserted that fact by calling the third person as a witness. Zank v. West Penn Power Co., 169 Pa.Super. 164, 166-167, 82 A.2d 554, 555 (1951). Cf. McDermott v. Hoffman, 70 Pa. 31 (1871).

In the instant case, the Durkins argue that since Equine Clinics and Dr. DeLeo called Dr. Seeber as a witness in the first trial of this matter, they have impliedly vouched for his credibility. This, they argue, allows them to introduce into evidence Dr. Seeber’s testimony from that trial, as well as the insurance statement which was utilized during both direct examination and cross-examination of Dr. Seeber. We note in passing that Dr. Seeber was neither an agent of Equine Clinics at the time of the trial, nor was he in any way linked by legal interest, as he had left their employ and was no longer a stockholder at the time of the trial. Corr v. Jewelcor Jewelers, 373 Pa.Super. 536, 541-543, 542 A.2d 72, 75 (1988). He was never either in privity with or an agent of DeLeo.

While it is true that the appellees did in fact call Dr. Seeber as a witness in the first trial, we do not agree with the Durkins that this enables them to introduce his testimony or the insurance statement as judicial admissions:

It would be perilous, indeed, to any party to produce and examine a witness in court, if all that he might said could afterwards be used in evidence against him as an admission. He admits, indeed, by producing him that he is a credible witness but only pro hac vice, so far as that case is concerned. He does not admit that everything he says is true either in that or any other proceeding. A party in the same suit may give evidence which contradicts his own witness or shows that he was mistaken____ [I]f a party or his counsel in his defence make a concession of a fact within his own knowledge, which is pertinent in another issue with another plaintiff, the record of the first suit as introductory to evidence of the concession, and the concession itself ... are good evidence for the new plaintiff____ [A] record between other parties may be admissible in evidence whenever it contains a solemn admission or judicial declaration by any of such parties in regard to the existence of any particular fact. But this certainly falls far short of holding that what is declared by a third person, produced as a witness, is to be treated and received as an admission by the party producing him.

McDermott, 70 Pa. at 52-53. We share the concerns of the supreme court outlined above, and find that regardless of the fact that the appellees called Dr. Seeber as a witness in the first trial, his testimony falls short of what was contemplated by the courts of this Commonwealth in developing the judicial admissions exception to the hearsay rule. Merely by calling a person as a witness, and by, in effect, vouching for his credibility, one does not give that person authority to bind one to facts, or to make admissions.

Accepting a rule that testimony given by a witness constitutes a judicial admission simply because the party has called that witness flies in the face of accepted law in this Commonwealth, and the principles which support it. The rule against impeachment of one’s own witness, based on the notion that if a party called a witness he vouched for his credibility and could not attack it, has long been discredited. See Packel & Poulin, § 607.3 at 406-407. Further, a party is not bound by the evidence offered by his witnesses, and may contradict it. Stack v. Wapner, 244 Pa.Super. 278, 285, 368 A.2d 292, 296 (1976); Fetterolf v. Yellow Cab Co., 139 Pa.Super. 463, 471, 11 A.2d 516, 520 (1940). We must also note the statutory requirement that the introduction of former testimony is only permitted under the rule against hearsay upon a showing of the witness’ unavailability. See 42 Pa.C.S. § 5934. Any wholesale application of the general rule that a witness may make an admission for the party who has called him and has thereby vouched for his credibility could only eviscerate the principles of law which have given rise to these well-established tenets, and would emasculate them.

We hold, therefore, that in this case, calling Dr. Seeber as a witness was not enough to transform him into a person able to make the admission that Dr. DeLeo gave Kymar to the horse on the day the horse died, particulary on a situation in which Dr. Seeber was unable to make this admission based on any principle of community of interest or an agency relationship.

Further, the testimony in question falls far short of the accepted definition of a judicial admission. Again, a judicial admission removes the necessity for proving facts because a party has, in effect, stipulated to them. Dr. Seeber’s testimony was an attempt to explain earlier remarks made in the insurance statement. A reading of the transcript of his testimony makes it clear that Seeber was not testifing to facts in that statement, specifically to whether or not Dr. DeLeo told him he had administered Kymar to the horse, but rather he was attempting to explain its inaccuracies. During his testimony, Dr. Seeber attempted to explain that he had made mistakes concerning the amounts and types of drugs administered to Josiah in his statements to the insurance company, and that these mistakes had occurred because he did not have with him the records of what he had given Josiah when he made the statement. He in no way testified unequivocally that Kymar was given to the horse on the day it died, or that Dr. DeLeo told him that he had done so.

In the portion of testimony that appellants attempt to introduce, Dr. Seeber testified that Josiah was on a regimen including Kymar, that he had to leave the racetrack on the day the horse died, that he requested Dr. DeLeo to administer the regimen prescribed, and that Dr. DeLeo had done so. Nowhere in his testimony did Dr. Seeber state that Dr. DeLeo told him he administered Kymar to the horse. In fact, Dr. Seeber testified that the horse had not had Kymar during the seventy-two hours preceding its death. Nowhere in the offered testimony, other than in the portion of the insurance statement that the Durkins attempted to introduce, is there any reference to what Dr. DeLeo might have said to Dr. Seeber during their telephone conversation on the day the horse died. How such testimony is now to be an incontrovertable admission that Dr. DeLeo did in fact give Josiah Kymar escapes this court. The testimony as it was given cannot be seen to assert the facts in that insurance statement as admissions incontrovertably and conclusively admissible against the appellees.

The Durkins next argue that the statements given to the insurance company by Dr. Seeber were admissible into evidence as vicarious admissions of a party. They contend that Dr. Seeber was an agent of Equine Clinics at the time he made the statement to the insurance company, and that he was authorized to do so. Although we are aware of the narrow interpretation of the vicarious admission exception in this Commonwealth, see Murray v. Siegal, 413 Pa. 23, 31, 195 A.2d 790, 794 (1963), Yubas v. Makransky, 300 Pa. 507, 511,150 A. 900, 902 (1930), we agree that Dr. Seeber was an agent of Equine Classics at the time he spoke with the insurance company investigator, and that sufficient evidence of authority to speak for his principal was adduced in this case. This, however, does not insure the admission into evidence of Dr. Seeber’s statements. While the insurance statement itself fits into a hearsay exception, the statements by Dr. Seeber that Dr. DeLeo told him he had administered the Kymar are also hearsay, and do not slide as easily into evidence under an exception to the hearsay rule.

The Durkins have attempted to side-step the problem of the hearsay statements of Dr. DeLeo by arguing that they may come into evidence as party admissions. This does not solve the problem. We question whether the insurance statement can be admissible against Dr. DeLeo. Clearly, although Dr. Seeber can be said to be an agent of Equine Classics, there is no evidence in the case indicating that he was in fact an agent of Dr. DeLeo. Again, the strict construction of the vicarious admission exception in this Commonwealth requires that for a statement to be admissible, the offering party must show that the declarant was an agent of the party against whom the admission was offered, and that he had the authority to speak for that party. Yubas, 300 Pa. at 511, 150 A. at 902 (emphasis added); DeFrancesco v. Western Pennsylvania Water Co., 329 Pa.Super. 508, 517-18, 478 A.2d 1295, 1300 (1984).

In DeFrancesco, this court considered the question of whether statements made by various persons at the scene of a fire were properly admissible into evidence in an attempt to determine who was responsible for an inadequate water supply. Two statements were involved in that case, one made by an unidentified person to the fire chief at the scene of the fire, and one made to one of the appellees, allegedly by an employee of the Water Company. The fire chief testified that a person approached him and identified himself as an employee of the Water Company. He allegedly told the fire chief that the mains were four inches as opposed to eight or twelve inches, and that the water had been turned down because the line was being repaired. The fire chief testified that he had called the fire alarm operator and requested that someone get in touch with the appellant, and that he assumed that the person who approached him had come in response to the operator’s call. The chief testified that the man had no papers or uniform, and that he did not see him get out of any of the Water Company’s trucks. DeFrancesco, 329 Pa.Super. at 516, 478 A.2d at 1299. The trial court permitted the testimony into evidence, holding that it was not hearsay.

The trial court also permitted the testimony of one of the appellees, who stated that an “old Italian fellow” approached him at the scene and said “I guess you think I played a dirty trick on you. We weren’t allowed to work overtime.” Id. The appellee testified that he had seen this person in the Water Company’s truck that morning, had seen him in the truck before, and had talked with him and sold him tires. Id.

On appeal, an en banc panel of this court reversed the trial court’s decision to allow the testimony into evidence. Holding that the testimony offered was hearsay, we noted that the admission of that evidence would not be improper if it fit into any hearsay exception. Id. Considering the nature of the vicarious admission rule, we concluded, however, that the testimony had been improperly admitted. “[E]ven if the requirement of agency was proven, there is no indication that either of the declarants had authority to make his declaration.” Id., 329 Pa.Superior Ct. at 518, 478 A.2d at 1300. See also Watkins v. Sharon Eerie, No. 327 Fraternal Order of Eagles, 423 Pa. 396, 401, 223 A.2d 742, 745 (1966) (woman who had fallen outside lodge could not prove governor, secretary, or officer of lodge were persons who promised to take care of problem, or that those persons had authority to bind lodge); Adams v. Mackleer, 239 Pa.Super. 244, 249, 361 A.2d 439, 441 (1976) (appellant-mother’s note to owner of bike that lamp did not work and brakes failed was not admission of appellant-son; mother was not son’s agent).

Similarly, we can find no evidence of agency in the relationship between Dr. Seeber and Dr. DeLeo. Dr. Seeber was a shareholder as well as an employee of Equine Classics; Dr. DeLeo was merely Dr. Seeber’s co-employee. Further, there is no evidence that Dr. Seeber was authorized to speak for Dr. DeLeo. It is clear from the cases discussed above that the amount of evidence required to show authority in this Commonwealth is formidable, and cannot possibly be met here, even if Dr. Seeber were to take the stand. Dr. Seeber was not employed by Dr. DeLeo; again, Dr. DeLeo was only an employee of the corporation. I would hold that if the insurance statement were to be offered into evidence against Equine Classics, it could not be considered against Dr. DeLeo. Accord Mahlandt v. Wild Canid Research Center, 588 F.2d 626 (8th Cir.1978).

Once the inadmissibility of the insurance statement against Dr. DeLeo is grasped, the error in the arguments of the appellants becomes obvious. Although the insurance statement itself may be offered as hearsay within an exception against Equine Classics, that document contains hearsay statements that Dr. DeLeo allegedly made which must also fit within an exception to the hearsay rule in order to be accepted into evidence. The Durkins would have us label those statements as party admissions because Dr. DeLeo is a party to this action, and allow them into evidence under that exception to the hearsay rule. This is not a wise course of action. It must be remembered that the overall statement made to the insurance company cannot be considered as evidence against Dr. DeLeo because it fits no exception as to him. Dr. Seeber is not his agent. How is it possible to admit into evidence statements allegedly made by Dr. DeLeo that are contained within a statement which is not admissible against him? Consider the problems of confusion and prejudice that admission of such evidence would entail. The jury would be called upon to hear evidence of Dr. DeLeo’s statements and consider them only against the company. They clearly cannot hold those statements against Dr. DeLeo since the vehicle by which they are introduced is not admissible against him.

Further, it follows that if Dr. Seeber testified to Dr. DeLeo’s statements on the stand, they would not be admissible against Equine Classics. They would be admissible as admissions by a party, but not as admissions made by that particular party, that is, Equine Classics. A limiting instruction here, as in the situation outlined above, would be quite useless. How is the jury to segregate this information?

To fully understand the implications of the situation, we would do well to consider the hearsay rule and the exceptions which confront us — the party admission exception, and the vicarious admission exception. The most frequently cited reason for admitting the party admission into evidence is that it is a natural outgrowth of the adversary system:

[I]t is too obvious for comment that the party whose declarations are offered against him is in no position to object on the score of lack of confrontation or of lack of opportunity for cross-examination. It seems quite as clear that he ought not be heard to complain that he was not under oath.

Morgan, Admissions as an Exception to the Hearsay Rule, 30 Yale L.J. 355, 361 (1921). At least one commentator has argued that this rationale is no longer viable in a modern adversarial setting:

[This] presuppose[s] an adversary system that prefers to award victory to the best (or, at least, the most consistent) person, rather than the person with the best cause---- In modern times, adversarial presentation is thought desirable because: (1) it facilitates the truth-finding function of the trial if proof is found and presented by those with self interest; and (2) the moral acceptability of the ultimate judgment is enhanced by allowing participation by antagonists psychologically committed to opposing views.

Bein, Parties’ Admissions, Agents’ Admissions: Hearsay Wolves in Sheep’s Clothing, 12 Hofstra L.Rev. 393, 420 (184). Bein argues that allowing party admissions does not necessarily facilitate the truth-finding function, because the job of the fact finder is not miraculously aided by such statements. The most important role that admissions play in the system, according to Bein, is enabling the fact finder to determine which parties are emotionally committed to their cases. Awarding favorable decisions in cases only to those truly committed to their causes can only have a positive impact upon judicial resources. Id. at 421. “Where the party does not believe in his own cause, he is, by definition using the system for the wrong purpose. Were there a means of identifying him at the door, he could be rightly turned away. But we cannot afford to ignore proof of his deception simply because he is past the threshold.” Id. at 422.

According to Bein’s analysis, if Dr. Seeber were to take the witness stand and testify that Dr. DeLeo made certain statements to him about the drugs administered to Josiah, in a case where only Dr. DeLeo was a party to the action, those statements would be admissible under normal hearsay analysis as party admissions. Under Bein’s analysis, they would be an indication of Dr. DeLeo’s emotional commitment to his case, and so would be valuable to the jury. When considered, however, as statements made vicariously by Equine Classics, that analysis fails, as Bein indeed expects it to. Bein, supra at 431-38. Dr. DeLeo’s statements cannot give any indication of the level of commitment Equine Classics has for its case. This is one of the arguments Bein makes against the broader vicarious admissions exception espoused by the Federal Rules of Evidence. See Federal Rule of Evidence 801(d)(2). Other commentators have similar concerns. They argue that statements of employees are not necessarily trustworthy or probative of an employer’s actual case. Obviously an employee could lie, be mistaken, or merely like to talk loosely of things about which he knows nothing. See, e.g., Falknor, Vicarious Admissions and the Uniform Rules, 14 Vand.L.Rev. 855, 856 (1961); Comment, Elimination of the Agency Fiction in the Vicarious Admissions Exception, 54 Wash. L.Rev. 97, 103 (1978).

In this Commonwealth, the problems of logic and fairness which proceed from the broad vicarious admissions exceptions have been avoided up to this point by our refusal to accept the broad hearsay exception of the federal rules. As was discussed above, the courts of this Commonwealth require stringent proof of both agency and of authority to speak before vicarious admissions can be accepted into evidence. Under the law in this Commonwealth, Dr. DeLeo is not a speaking agent of Equine Classics. For that reason, his alleged statements cannot be allowed into evidence against Equine Classics under the vicarious admissions exception, regardless of whether the attempt is made to introduce them through testimony from the witness stand or through an insurance statement of which they are a part. Were we to allow his statements as party admissions because he is a party and hold Equine Classics liable for them, it would be of no persuasive value. What can Dr. DeLeo’s statement tell us about Equine Classics’ commitment to its case? Nothing. They are merely the statements of an employee not authorized to speak for a company. To allow such statements by a co-party into evidence as party admissions to be used against the company is at best illogical, at worst, unjust.

Were Equine Classics the only party involved in this case, there could be no argument for admission here. Were Dr. DeLeo the only party in the case, there could be no argument for admission of the insurance transcript containing the statements, and so no argument for the admission of the statements through that channel. We should not allow the joining of the parties in this situation to lead to a scenario in which the evidence which is inadmissible against each separately becomes admissible against both together. We find the connections between the insurance statement that is admissible only against Equine Classics and the party admissions that are admissible only against Dr. DeLeo to be too tenuous for admissibility in general, and too tenuous for their limited admissibility to promote justice.

Because we find that the trial court committed no abuse of discretion in refusing to admit into evidence the testimony of and insurance statement made by Dr. Seeber, we also find that the trial court did not err in refusing to remove the compulsory nonsuit.

Affirmed.

KELLY, J., concurs and dissents.

KELLY, Judge,

concurring and dissenting:

I agree with the majority’s conclusion that Dr. Seeber’s recorded statement to defendant, Equine Clinics’ insurance company, stating that Dr. DeLeo had administered Kymar, is not admissible into evidence against Dr. DeLeo. I disagree, however, with the majority’s conclusion that the statement was not admissible against Equine Clinics. I would find that sufficient circumstantial evidence was presented to show that Dr. Seeber was an agent authorized by Equine Clinics when he gave the recorded statement. I would therefore find that the trial court erred in excluding Dr. Seeber’s recorded statement.

Appellants alleged, and defendants/appellees admitted, that the representative from Equine’s insurance carrier obtained the recorded statement from Seeber as part of its investigation into the reported loss. In order for a loss to be covered, Equine’s insurance policy required it to cooperate with the investigation of reported losses; this cooperation specifically included providing the carrier with evidence and witnesses regarding the loss. Although there is no direct evidence that Seeber was requested to make the statement on behalf of Equine, I would find that appellants provided ample circumstantial evidence to show that Seeber gave the statement as part of Equine’s duty under the insurance contract to cooperate with the carrier’s investigation into the circumstances of the loss. This circumstantial evidence showed that Seeber acted within his authority in giving the recorded statement. I would therefore conclude that Dr. Seeber’s statement to the insurance carrier would be admissible as to Equine Clinics under the vicarious admission exception to the hearsay rule. See Binder, Hearsay Handbook § 28.04 (2nd ed. 1983); McCormick, Evidence § 267 (3rd ed. 1984); DeFrancesco v. Western Pennsylvania Water Company, 329 Pa.Super. 508, 478 A.2d 1295 (1984).

As previously stated, I agree with the majority’s conclusion that the statement is not admissible against Dr. DeLeo. However, I believe that the majority’s reasoning, which focuses on prejudice to Dr. DeLeo if the statement is admitted, is misplaced. The established remedy if such prejudice could be shown would be for the trial judge to order a bifurcation; in that way any prejudice to Dr. DeLeo would be avoided.

Accordingly, I would reverse the order granting the compulsory non-suit and remand the case for trial.

      . Appellants also argue that the statements made by Dr. DeLeo fall within the present sense exception to the hearsay rule. We note that for a statement to fall within the present sense impression exception to the hearsay rule, the supreme court has ruled that an element of contemporaneity must be present. Commonwealth v. Peterkin, 511 Pa. 299, 313, 513 A.2d 373, 379 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974). "Relative immediacy of the declaration insures that there will have been little opportunity for reflection or calculated misstatement." Coleman, 458 Pa. at 117, 326 A.2d at 389. We find that from the record before us, the element of contemporaneousness was lacking in this case.

      . We also note that Dr. Seeber was allowed to explain his statement to the insurance company at the first trial. It would make no sense for us to hold that that insurance statement was a judicial admission and therefore, could neither be contradicted or explained at the second trial, when that contradiction was permitted at the first one.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    546 A.2d 676
    Maurice SLATER and Peter Kanton, T/A Bloomsburg Shopping Center Associates, a Partnership, Appellants, v. PEARLE VISION CENTER, INC.
    Superior Court of Pennsylvania.
    Argued April 5, 1988.
    Filed Aug. 12, 1988.

      Robert A. Schwartz, Bloomsburg, for appellants.
    Thomas B. Schmidt, III, Harrisburg, for appellee.
    Before WIEAND, McEWEN and BECK, JJ.
   BECK, Judge:

This is a commercial lease dispute between Maurice Slater and Peter Kanton, t/a Bloomsburg Shopping Center, Associates (the “Shopping Center”) and Pearle Vision Center, Inc. (“Pearle”). Appellant Shopping Center is the lessor and appellee Pearle is the tenant under a lease of premises located in Shopping Center’s strip shopping mall. Although Pearle has paid the rent under the lease, it has never occupied the leased premises. Apparently because of Shopping Center’s concern that the presence of a vacant store would damage the business of the shopping mall as a whole, in August 1986 Shopping Center filed a complaint in equity seeking an injunction requiring Pearle to occupy and use the premises.

Pearle filed preliminary objections in the nature of a demurrer. Pearle basically alleged that Shopping Center had failed to state a claim for breach of either an express or implied obligation to occupy and use the premises and indeed could not since the lease contains none. Pearle also alleged that Shopping Center had an adequate remedy at law and had no standing to claim relief on behalf of other tenants in the mall.

The trial court sustained Pearle’s preliminary objection on the ground that the lease does not expressly obligate Pearle to occupy and use the premises and that as a matter of law, no such obligation could be implied. The trial court relied on Dickey v. Philadelphia Minit-Man Corp., 377 Pa. 549, 105 A.2d 580 (1954) and McKnight-Seibert Shopping Center, Inc. v. National Tea Co., 263 Pa.Super. 292, 397 A.2d 1214 (1979). The court did not decide the remaining preliminary objections.

We reverse and remand because we find that the complaint, which incorporates the lease in full, is sufficient, albeit minimally, to state a claim for relief based on an implied obligation of Pearle to occupy the premises.

When reviewing preliminary objections in the nature of a demurrer, the question is whether, assuming the facts averred in the complaint to be true, the law is clear that no recovery is permitted. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). A demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 396 A.2d 677 (1978). Since a court should be reluctant to grant a demurrer except in the clearest of cases, a demurrer should not be granted where it appears that the plaintiff could cure any defect in the complaint by amendment. Tide Water Associated Oil Co. v. Kay, 168 Pa.Super. 263, 77 A.2d 754 (1951) (quoting Holladay v. Fidler, 158 Pa.Super. 100, 43 A.2d 919 (1945)). See also Otto v. American Mutual Insur. Co., 482 Pa. 202, 393 A.2d 450 (1978).

Shopping Center argues that the lease contains both an express and an implied requirement that Pearle occupy the premises. The express requirement is alleged to be found in Section 10 of the lease, which states:

A. Tenant covenants and agrees that it shall use the Premises solely as a “Pearle Vision Center” or such other name as is used by the other Tenant’s businesses within the State of Pennsylvania for the retail sale and repair of eyeglasses, lenses and other optical merchandise and optical services, and eye examinations and lens grinding and preparation and for no other purpose----

The quoted language on its face would appear to impose an obligation on Pearle to occupy the premises and to use it as a vision center. However, Pennsylvania case law requires us to interpret such language in commercial leases to mean only that no use other than the use specified in the lease is permitted. The language does not address the question of the lessee’s duty to occupy the premises.

In the seminal case of Dickey v. Philadelphia MinitMan Corp., 377 Pa. 549, 105 A.2d 580 (1954), the lease provided that the leased premises were to be occupied by the lessee in the business of washing and cleaning automobiles and for no other purpose. Id., 377 Pa. at 551, 105 A.2d at 580. The lease also provided for rent based on a percentage of gross sales, with a fixed minimum annual rental. The defendant tenant occupied and used the premises for a number of years in accordance with the lease, but then limited its business to waxing cars and largely eliminated the car washing aspect of its business.

The lessor sought to eject the defendant, contending that it was in breach of the lease. The Supreme Court affirmed the trial court’s grant of a demurrer to the landlord’s complaint. It stated the issue as follows:

... [wjhether there was any implied obligation on the part of the lessee to continue to conduct the business on the premises of washing and cleaning cars if its failure to do so resulted in a diminution of rental payable to the lessor.

Id., 377 Pa. at 552, 105 A.2d at 581.

The lessor argued that in a lease where the rental is based upon gross sales, there is an implied obligation of the tenant to continue the business on the premises to the fullest extent possible. The Court rejected this argument, finding that the tenant’s decision to change its business was made in good faith and in the exercise of legitimate business judgment and was not forbidden by any implied term of the lease. Interestingly, in so holding, the Court specifically distinguished a Louisiana case where a tenant had completely vacated the leased premises and conducted its business elsewhere. Id., 377 Pa. at 555, 105 A.2d at 582 (citing Selber Bros. Inc. v. Newstadt’s Shoe Stores, 194 La. 654, 194 So. 579 (1940); 203 La. 316, 14 So.2d 10 (1943)).

Thus, the holding of Dickey would appear to be that a use covenant like that presented here cannot be read as an express requirement that the tenant use the premises for the precise permitted business purpose. Moreover, Dickey holds that there is no implied obligation that the tenant under a percentage lease refrain from conducting its business in good faith and in accordance with sound business judgment simply because doing so may decrease the rent payable.

More pertinent to the instant case is the fact that Dickey specifically does not address a situation where the tenant conducts no business on the leased premises. It also does not address a lease for premises which are part of a strip of stores where the economic health of each store may be dependent on the others.

Certain of these considerations were addressed, however, in McKnight-Seibert Shopping Center, Inc. v. National Tea Co., 263 Pa.Super. 292, 397 A.2d 1214 (1979). In McKnight, the lessor of a shopping center brought an action for ejectment of the tenant, a food market operator, and its assignee and for damages for wrongful retention of the premises. The lease contained a use provision similar to that involved herein and a fixed rental provision. When the tenant experienced financial difficulties, it attempted to assign the lease, which was permitted by the lease, and notified the lessor that it would close the store temporarily to allow for transfer to the assignee. The temporary closing lasted longer than contemplated due to labor difficulties of the tenant, who paid the fixed monthly rental throughout. Eventually, possession of the premises was surrendered to the lessor, but the claim for damages for wrongful retention survived.

The McKnight court recognized the general rule expressed in Dickey regarding the limited meaning of a use clause. However, it also recognized that “[a] clause that a shopping center tenant ‘shall use the demised premises ... for the purpose of ... displaying and selling [merchandise]’ probably does not contemplate a permanently idle store front.” Id., 263 Pa.Superior Ct. at 298, 397 A.2d at 1217. On the other hand, the court noted that the absence of provisions like a percentage rental clause, a continuous operations clause or a clause mandating that the store be open during certain hours would indicate that there was no obligation of continuous use.

Since the only issue before the McKnight court was whether the temporary cessation of the tenant’s business to accommodate a legitimate assignment, lengthened due to circumstances beyond the tenant’s control, was wrongful and in breach of the lease, the court did not specifically hold as to whether permanent vacancy of a store might constitute a breach of the lease. The court simply held that under the facts presented, a temporary vacancy did not constitute a breach of the lease. Id., 263 Pa.Superior Ct. at 298, 397 A.2d at 1218.

The trial court in the instant matter found Dickey and McKnight controlling and read them as mandating the dismissal of plaintiff’s complaint. As the foregoing discussion of these cases indicates, we do not consider them completely dispositive in this case. Although we recognize that Dickey precludes our finding that the use provision requires that the tenant actually use the premises for the precise permitted use, and thus precludes our accepting Shopping Center’s argument that this provision alone is an express imposition of a use requirement on Pearle, that does not conclude our inquiry. Shopping Center also argues that in consideration of all of the circumstances of this case, including consideration of all of the provisions of the lease, we should find that it has stated a claim for relief based on an implied obligation to occupy and use the premises. Neither Dickey nor McKnight precludes such a claim since neither of those cases address the specific situation presented here, i.e. a completely vacant store front in an interdependent shopping mall where the lease itself contains provisions other than the use clause from which an obligation to use and occupy might be implied.

Since there is no other directly controlling Pennsylvania precedent, we must necessarily rely on more general principles of lease construction in our analysis of this issue. As our Supreme Court has recently reiterated, “a lease is in the nature of a contract and is controlled by principles of contract law.” Cimina v. Bronich, 517 Pa. 378, 383, 537 A.2d 1355, 1357 (1988). One such principle of contract law applicable to this case is sometimes called the doctrine of necessary implication, which has been described as follows:

In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract.

Frickert v. Deiter Bros. Fuel Co., Inc., 464 Pa. 596, 347 A.2d 701 (1975) (Pomeroy, J., concurring) (quoting D.B Van Campen Corp. v. Building and Const. Trades Council of Philo., 202 Pa.Super. 118, 122, 195 A.2d 134, 136 (1963)). Thus, where it is clear that an obligation is within the contemplation of the parties at the time of contracting or is necessary to carry out their intentions, the court will imply it. Gallagher v. Upper Darby Township, 114 Pa.Commw. 463, 539 A.2d 463, 467 (1988). This is true even where the contract itself is not ambiguous. Id.; Frickert, supra. Since the doctrine of necessary implication serves not to instruct the court as to which of two possible interpretations of a contract should be adopted, but rather to allow the court to enforce the clear intentions of the parties and avoid injustice, the court does not need to find an ambiguity before it will employ the doctrine.

Applying this doctrine to the case at bar, we find ample evidence in this lease that these parties may well have contemplated and intended that Pearle was obligated to occupy and use the premises. For example, sub-paragraph 9(E) of the lease provides that the tenant agrees to “open the Premises for business to the public not later than ninety (90) days after Landlord’s approval of Tenant’s plans and specifications.” Although we recognize that Shopping Center’s complaint does not specifically allege when or if it ever approved Pearle’s “plans and specifications”, thus triggering this provision, the complaint does allege that Pearle “failed to open the premises and utilize it in accordance with” this provision. Although admittedly unclear, the lack of specificity in the complaint on this point should not herald its demise. This is precisely the genre of pleading deficiency that may often be cured by amendment and that should not, therefore, constitute grounds for dismissal.

Moreover, we find that there are other provisions in the lease that suggest that actual occupancy and use of the premises by Pearle was in the contemplation of the parties when they executed the lease. Section 10(B) states that the tenant agrees “that it will conduct its business in the entire Premises.” Section 30 includes “abandonment” as an Event of Default and contains the following noteworthy exception:

Notwithstanding anything to the contrary herein, Tenant may allow the demised premises to be vacant for a period not exceeding sixty (60) days, provided Landlord is given not less than ninety (90) days written notice that such vacancy will occur: said vacancy being necessary due to repairs or remodeling of the demised premises or transfer of possession to a franchisee or assignee pursuant to the terms of this lease.

This exception appears in type that differs from the body of the lease, which otherwise appears to be largely based on a standard form, thus creating at least the suggestion that this provision was a separately negotiated term. The necessary implication of this provision, which severely circumscribes Pearle’s ability to leave the premises vacant, is that except under the circumstances specifically outlined, Pearle cannot allow the premises to be vacant.

Finally, the lease contains references to the obligations of Pearle vis-a-vis the viability of the shopping mall as a whole. The “affirmative obligations” of Pearle set forth in Section 20(A) refer to Pearle’s obligation to keep the premises in a manner consistent with the general character of the shopping mall and to refrain from any action or practice that “may damage, mar or deface the Premises or any other part of the Shopping Center.”

In the face of such provisions, we cannot agree with the trial court’s conclusion, based only on the complaint and the Dickey and McKnight decisions, that no implied-in-fact obligation to occupy and use the premises can be found as a matter of law. We note that a similar conclusion has been reached in cases involving similar facts decided in other jurisdictions. For example, in Ingannamorte v. Kings Super Markets, Inc., 55 N.J. 223, 260 A.2d 841 (1970), the Supreme Court of New Jersey was confronted with a dispute between a shopping center lessor and the lessee of a supermarket in the shopping center. The lessee operated a supermarket at the leased premises for several years but then vacated the premises and refused to resume operations. The lease contained a use clause stating that the premises were to be used and operated only as a supermarket and provided for a fixed rental. The lessor sued for a judgment for possession.

Although the Ingannamorte Court recognized prior New Jersey decisions in which use clauses had been held to prohibit certain uses but not to mandate any permitted use, it distinguished such cases from the one before it as follows:

But these cases and others like them, did not involve the precise use and occupancy language in the lease before us and, much more to the point, did not involve a situation where, as here, there were interdependent economic units and the landlord had an obvious interest in the continued active operation of the leased premises far beyond the mere payment of the fixed monthly rental.

Id. at 227, 260 A.2d at 843. Thus, the Court affirmed the trial court’s order granting judgment for possession to the lessor unless the lessee resumed operations within thirty days. See also Fifth Avenue Shopping Center, Inc. v. Grand Union Co., 491 F.Supp. 77 (N.D.Ga.1980) (lessee’s refusal to operate premises in shopping center as food market may be breach of lease where lease is a percentage lease with an insubstantial minimum fixed rental; other circumstances like position of premises in shopping center were also considered relevant).

These cases further buttress our conclusion that in construing the lease to ascertain what obligations respecting use and occupancy it imposes on Pearle, and thus in ascertaining the intentions of the parties to the lease, we must construe the lease as a whole in light of the circumstances surrounding its execution. Having done so, we are convinced that Shopping Center has pleaded a minimally sufficient claim for relief, perhaps capable of further support through an amended pleading, based on an implied obligation to occupy and use. In the instant case, the lease is not completely silent on the tenant’s duty to occupy. If it were, we would conclude that the tenant had no duty to occupy because the landlord failed to include such a condition in the lease. Here, several provisions on the lease can arguably lead to the conclusion that the parties intended that Pearle would occupy the premises.

The order of the trial court granting Pearle’s preliminary objection on the ground that as a matter of law, Pearle has no implied obligation to occupy and use the premises, is reversed. The matter is remanded for consideration of Pearle’s remaining preliminary objections and for further proceedings consistent with this Opinion. Jurisdiction relinquished.


author: McEWEN, Judge:

text:
    546 A.2d 681
    COMMONWEALTH of Pennsylvania, Appellant, v. James GAMBLE, Appellee.
    Superior Court of Pennsylvania.
    Argued May 26, 1988.
    Filed Aug. 16, 1988.

      Lawrence M. Cherba, Assistant District Attorney, Doylestown, for Com., appellant.
    Lee D. Rockafellow, Morrisville, for appellee.
    Before BROSKY, ROWLEY and McEWEN, JJ.
   McEWEN, Judge:

The Commonwealth has taken this appeal from an order which granted a motion in arrest of judgment as to the violation of 75 Pa.C.S. § 1543(b), filed by appellee after he had been found guilty by the trial court of violating Section 1543(a) and Section 1543(b) of the Vehicle Code. We affirm.

Appellee was arrested on January 22, 1986, and charged with Driving Under the Influence of Alcohol, 75 Pa.C.S. § 3731(a). Appellee refused to submit to a breathalyzer test at the time of his arrest and was, therefore, subject to an automatic one year suspension of his operating privileges pursuant to 75 Pa.C.S. § 1547(b). Appellee, at the time of the January 22, 1986, arrest, resided at 327 Crown Street in Morrisville, Pennsylvania. This address was noted on all police and court documents relating to the offenses committed on January 22, 1986. The Department of Transportation, however, two months later, on March 25, 1986, mailed a notice of a one year suspension to an address which had not been appellee’s residence for over two years. Appellee never received the notification from the Department of Transportation informing him of (1) his suspension pursuant to Section 1547(b); and (2) the potential penalty he would face if he was subsequently convicted of Driving Under Suspension.

Appellee was again arrested five months later, on June 27, 1986, while operating a motor vehicle, and charged with violating Section 1543(a) of the Vehicle Code, which provides:

§ 1543. Driving while operating privilege is suspended or revoked
# # * >jt $ *
(a) Offenses defined. — Except as provided in subsection
(b) , any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.

75 Pa.C.S. § 1543(a) (emphasis supplied).

Appellee was also charged with violating Section 1543(b) of the Vehicle Code, which provides:

§ 1543. Driving while operating privilege is suspended or revoked
* * * * * *
(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

75 Pa.C.S. § 1543(b) (emphasis supplied).

The Department of Transportation records, introduced by the prosecution,^reflect that appellant had not had a valid driver’s license since 1978, when it was suspended for failure to respond to a citation. The appellee conceded that fact at his trial. Appellee testified, however, that he was not aware that he was under suspension on June 27, 1986, for refusing to submit to a breathalyzer test, but rather that he believed he was under suspension at that time for failure to respond to citations. Appellee further testified that he had been making weekly payments on his outstanding fines in order to qualify for the restoration of his operating privileges, at which time he believed the suspensions arising from the January 22, 1986, incident would commence. See: Commonwealth v. Martin, 102 Pa. Cmwlth. 23, 25, 517 A.2d 216, 217 (1986); 75 Pa.C.S. § 1544(b).

The Commonwealth introduced at the trial which underlies this appeal, specifically, the trial for driving on June 27, 1986, in violation of Section 1543(a) and Section 1543(b), the suspension notification which had been mailed to appellee on March 25, 1986, informing appellee that a one year suspension for refusal to take a breathalyzer would commence on March 25, 1986. However, the Commonwealth did not establish that appellee had received the incorrectly addressed notice or that appellee had been informed by either the court, the officers who arrested appellee on January 22, 1986, or the Department of Transportation that appellee’s operating privileges would be suspended for one year, effective March 25, 1986, as a result of his refusal to submit to a breathalyzer. Since the trial court held that actual notice of suspension for failure to submit to a breathalyzer was an essential element of the offense of driving while operating privileges are suspended or revoked, codified at 75 Pa.C.S. § 1543(b), the court arrested judgment upon the conviction based upon Section 1543(b).

The Commonwealth concedes that actual notice of the suspension of driving privileges is an essential element of the offense of “driving while operating privilege is suspended or revoked.” 75 Pa.C.S. § 1543. See: Commonwealth v. Kane, 460 Pa. 582, 584, 333 A.2d 925, 926 (1975); Commonwealth v. Martin, 346 Pa.Super. 129,142, 499 A.2d 344, 351 (1985); Commonwealth v. Burkett, 300 Pa.Super. 72, 74, 445 A.2d 1304, 1305 (1982). The Commonwealth argues, however, that the court erred in concluding that actual notice of the suspension occasioned as a result of the alcohol test refusal was required where appellee testified that he was aware that his driving privileges were suspended as a result of prior violations.

We do not accept the argument of the prosecution, and conclude that the distinguished Judge Edward G. Biester, Jr. correctly ruled that the Commonwealth, in order to establish a violation of 75 Pa.C.S. § 1543(b), must prove that the defendant had actual notice of the suspension at issue. Surely, it is apparent that to hold otherwise would be to adopt an interpretation that Section 1543(b) is merely a penalty provision appended to Section 1543(a). Since Section 1543(b) prescribes an additional element not required by Section 1543(a), namely, driving while under a suspension or revocation occassioned by an alcohol related offense or refusal, an interpretation that Section 1543(b) is an appendage of Section 1543(a) would defy the obvious intent of the drafters as well as basic principles of statutory construction.

It should also be noted that this Court has already, if but implicitly, so decided in Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), when the defendant chailenged his conviction of violating 75 Pa.C.S. § 1543(b), stating that he had not received the notice informing him of his one year suspension as a result of his alcohol test refusal. We there affirmed the conviction under Section 1543(b), after finding that the defendant had received actual notice of his suspension pursuant to Section 1547(b) where (1) the Bureau mailed the notice of suspension to the defendant at his correct address; (2) the defendant had surrendered his license to the Bureau in response to a previous notice of a six month suspension mailed to him at the same address; and (3) the defendant, after having served his prior six month suspension, did not apply for restoration of his privileges and did not have a license in his possession when stopped for the subsequent violation. We there reasoned, as we are unable to do here, that the evidence was sufficient to establish that the defendant had received actual notice of the suspension, pursuant to Section 1547(b).

Although it is clear that Mr. Gamble knew (1) that his license was suspended, and (2) that he could not lawfully operate a vehicle, we cannot expose him to the harsher sanctions imposed by Section 1543(b) without proof by the prosecution that he had actual notice of license suspension pursuant to his alcohol test refusal.

ORDER AFFIRMED.

      . Appellant did not appeal to this Court from the judgment of sentence imposed by the Common Pleas Court for the violation of Section 1543(a).

      . Although the list of charges filed against appellee, as a result of his January 22, 1986, arrest is not a part of this record, it is evident from the certified copy of appellee’s driving record that, in addition to DUI, appellee was charged with Reckless Driving, 75 Pa.C.S. § 3714; Driving Under Suspension or Revocation, 75 Pa.C.S. § 1543; Driving Without a Valid License, 75 Pa.C.S. § 1501; Fleeing Police Officer, 75 Pa.C.S. § 3733; and Driving Without Lights to Avoid Arrest, 75 Pa.C.S. § 3734.


author: MONTEMURO, Judge:

text:
    546 A.2d 684
    Joseph McSLOY and Patricia A. McSloy, Appellants, v. JEANES HOSPITAL, Dr. Michael Lewitt, Stewart Miller and Dr. Venerandao Jaurigue, Appellees.
    Superior Court of Pennsylvania.
    Argued June 22, 1988.
    Filed Aug. 22, 1988.

      Francis X. Nolan, Philadelphia, for appellants.
    Barbara A. Magen, Philadelphia, for Jeanes Hospital, appellees.
    Felice M. Quigley, Philadelphia, for Jaurigue, appellee.
    Before MONTEMURO, POPOVICH and MELINSON, JJ.
   MONTEMURO, Judge:

Appellants, Joseph and Patricia McSloy, appeal from the dismissal of their medical malpractice action and entry of non pros for their failure to identify expert witnesses and answer expert witness interrogatories as directed by the trial court. We affirm.

The facts leading up to the dismissal of appellants’ cause of action are thoroughly set forth in Opinion of the Honorable Bernard J. Avellino as follows:

On November 2, 1981, Joseph McSloy burned his ankle in an industrial accident and was taken to Jeanes Hospital where he received outpatient care. He was unhappy with his care and, on November 11th, he went to a different hospital where skin graft surgery was performed.
Almost two years later, in September of 1983, he filed this lawsuit charging that certain physicians at Jeanes Hospital were negligent in diagnosing and treating his burns. He claimed that this negligence caused his wound to become infected and require surgery. The surgery, meanwhile, has left him with a permanent scar.
The defendants independently served expert witness interrogatories upon the plaintiff on May 29th and July 12, 1985. Plaintiff did not respond and then ignored a motion to compel answers, which was later filed. As a consequence, Judge Hill entered a routine order directing plaintiff to answer the interrogatories within thirty days or risk sanctions. This order was entered on February 28, 1986.
Plaintiff ignored this order and, on April 7th, the defendants filed a motion for sanctions. Plaintiff responded to this motion, in part, by providing a candid, but useless, answer to the expert interrogatories. The answer he provided is one that is authorized by law, and is commonly referred to as a “Royster response.”[] Moreover, he answered the motion, itself, by raising a question which he framed as follows:
At what point does the expert and the expert’s report have to be revealed to opposing counsel?

Plaintiff went on to answer his own question by suggesting that he had the right to postpone answering expert witness interrogatories until such time as the defendants could demonstrate that all four factors described in Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979), were present and justified an extreme sanction like preclusion. If that meant the eve of trial, so be it.

More important, plaintiff explained that he was mindful of his duty to supplement his Royster response, and implied that he would do just that within a reasonable period of time. Judge Hill, in turn, denied defendants’ motion for sanctions without prejudice, and invited the defendants to resubmit it “... if [plaintiffs’] answers have not been supplemented as required under Rule 4007.4(1), or have not been provided within a reasonable time, it appearing that this action was started more than three years ago ” (Italics ours.)

Judge Hill’s order was entered on May 5, 1986. Defendants waited, but plaintiff did not supplement his answers to their expert witness interrogatories. Finally, on November 17, 1986, they resubmitted their motion for sanctions, suggesting that the reasonable period of time which Judge Hill authorized had since expired.

Plaintiff responded to this motion, in part, by asking yet another question.

Does a defendant have the right to dictate the time frame within which the plaintiff must hire an expert? Meanwhile, we had assumed Judge Hill’s duties as Supervising Judge of Discovery. As a result, this motion for sanctions was presented to us. After reviewing the motion and answer, we decided that some sanction was likely and, by interim order dated December 16,1986, scheduled a hearing for the purpose of determining an appropriate one.[] The hearing took place on January 5, 1987, and was transcribed. The notes are part of the record in this case.

At the hearing, plaintiffs’ counsel told us that he had made no effort to retain an expert. He said that his client told him early on that some doctor had expressed the view that there had been carelessness. Before beginning this lawsuit, counsel attempted to speak with this physician, and encountered what he described as, “a conspiracy of silence.” Otherwise, nothing was done to obtain the services of a medical expert.

We decided that preclusion of expert testimony was the appropriate sanction, and offered an explanation of our reasons on the record. (N.T. page 8.) At this point, plaintiffs’ counsel made an oral application that we “reconsider” our order. He urged us to give him another thirty days. We responded as follows:

Court: “Are you telling me you can get an expert in thirty days?”
Counsel: “Yes, sir.”

Defense counsel then began posing procedural questions. One asked, for example, if our “reconsidered order” would be self-executing. The other asked what effect, if any, such an order would have upon her identical sanction motion, which had been recently filed, but was not yet ripe for adjudication because of a local rule of procedure. (See Phila. R.C.P. 140.)

In an effort to shorten the paper trail, and in the spirit of Pa. R.C.P. 126, we, in turn, made the following inquiry of plaintiffs’ counsel:

Court: “If you don’t get a doctor within thirty days, can I simply enter a non pros?”
Counsel: “Yes, sir.”[]

We then closed the record by repeating our order, “Thirty days or non pros.” Later in the day, we reduced our understanding with plaintiffs’ counsel to a brief order which could be more easily entered in our dockets than the transcript of the hearing. The order was as follows:

... this 5th day of January, 1987, after hearing, it is hereby ordered that plaintiffs provide expert reports, as previously directed, within thirty (30) days ... or suffer dismissal of the cause.
Plaintiff did not answer the interrogatories within the allotted time, and we did dismiss his action by order dated February 9, 1987. Within thirty days, and after notice to opposing counsel, plaintiffs’ counsel appeared before us and asked that we reconsider this sanction. We declined to do so, largely because he had yet to answer the expert interrogatories. The case was simply too old, and counsel offered no extenuating circumstances for his failure to comply with the earlier orders. This appeal followed.

Opinion of the Trial Court at A1-A6.

The sole question before us is whether the trial court abused its discretion in dismissing appellants’ malpractice action in light of appellants’ failure to provide expert reports or answers to interrogatories within the thirty (30) day period as mandated by trial court’s order. Appellants contend that this sanction was inappropriate because appellees have failed to demonstrate that they were prejudiced by appellants’ failure to disclose the identity of their expert or their failure to answer the expert interrogatories. Based on our thorough review of the record in this case we find that the trial court’s entry of non pros was proper.

Initially we note that while both parties cite cases dealing with preclusion of expert testimony as a sanction for failure to comply with discovery, the order before us is the trial court’s entry of non pros pursuant to the agreement with appellants’ counsel. While the trial court initially decided that preclusion of expert testimony would be an appropriate sanction, it reconsidered its decision in light of counsel’s agreement that if he failed to provide expert reports or answers to interrogatories within thirty days, a non pros would be appropriate. Because the subject matter of an appellate court’s review is limited to the “final order” of the court below, we are constrained to review only the trial court’s order entering a non pros. See Cohen v. Jenkintown Cab Co., 300 Pa.Super. 528, 538 n. 8, 446 A.2d 1284, 1289 n. 8 (1982) (trial court’s order and not its opinion which is the focus of review on appeal).

The decision of the trial court to dismiss an action for failure to prosecute within a reasonable time will not be reversed absent a finding of a manifest abuse of discretion. Metz Contracting, Inc. v. Riverwood Builders, Inc., 360 Pa.Super. 445, 449-450, 520 A.2d 891, 893 (1987). The policy behind the rule requiring the plaintiffs to proceed with their causes without unreasonable delay is that if a person has a right which he wishes to enforce, he should do so promptly, so that the other party will not be prejudiced by the possible disappearance or removal of witnesses. Alker v. Philadelphia National Bank, 372 Pa. 327, 331, 93 A.2d 699, 701 (1953). In other words, the logic behind requiring plaintiffs to attempt to vindicate their rights in a speedy fashion or suffer a non pros is the recognition that justice may be better administered when the facts are fresh in the minds of living witnesses who may be reached. See 5 Standard Pennsylvania Practice 136 (1958). In determining whether a non pros is proper, a three-part analysis is employed:

A court may properly enter a judgment of non pros when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party____

Moore v. George Heebner Inc., 321 Pa.Super. 226, 229, 467 A.2d 1336, 1337 (1983). Prejudice results to the opposing party upon the death or absence of a material witness. However, a finding of prejudice is not limited exclusively to these situations. Rather, prejudice may be said to result any time there is “a substantial diminution of a party’s ability to properly present its case____” Metz, supra 360 Pa.Super. at 451, 520 A.2d at 894.

The present case has been pending for approximately four and a half years. Appellee, Dr. Jaurigue, sent expert interrogatories to appellant on January 23, 1984. Thereafter, appellees Jeanes Hospital, Dr. Michael Lewitt and Dr. Stuart Miller, served expert interrogatories on appellant on May 29, 1985 and July 12, 1985. Appellant failed to respond to these interrogatories and on February 28, 1986, Judge Hill granted a motion to compel answers to these interrogatories within 30 days. Appellant ignored the trial court’s order and on April 4, 1986, appellees Jeanes Hospital, Dr. Lewitt and Dr. Miller, moved for imposition of sanctions. In response to this motion appellant submitted that an expert had not yet been obtained. On May 5, 1986, the trial court denied the motion without prejudice and invited appellees to resubmit the motion for sanctions if the answers were not seasonably supplemented as required under Rule 4007.4(1). Appellants did not seasonably supplement their answers as required by the rule, but merely responded on July 27, 1986 that they had still not retained an expert. As a result, on November 17, 1986, appellees renewed their motion for sanctions. Appellants’ response to the motion indicated that they had still not obtained an expert and that they had no intention of complying with the prior court directive. At the hearing on the motion, which was held on January 5, 1987, appellants indicated that they had merely taken token efforts to obtain an expert. Moreover, appellants reiterated their position that they had no duty to obtain an expert until such time as appellees could demonstrate that they were prejudiced by the absence of an expert. The trial court concluded that preclusion of expert testimony would be an appropriate sanction for appellants’ willful frustration of its attempts to expedite discovery and concomitant trial of the case, but agreed not to impose such a sanction in light of appellants’ representation that they would obtain an expert and answer interrogatories within thirty (30) days or suffer a non pros. When no answers were forthcoming within the thirty (30) day period, the trial court entered a non pros.

We believe that the foregoing events satisfy the three-prong test for entering a non pros. Approximately four and a half (4x/2) years have passed since the filing of the complaint with little, if any, effort put forth by appellants in attempting to obtain an expert. As the duty to diligently pursue their cause of action rests with appellants, the risk of failing to act within a reasonable time falls upon them as well. Carrol v. Kimmel, 362 Pa.Super. 432, 437, 524 A.2d 954, 957 (1987). In the present case, we conclude that appellants’ actions clearly demonstrate a want of due diligence and a failure to proceed with reasonable promptness. In addition, far from providing a compelling reason for the delay, appellants’ do not attempt to provide even the slightest justification for the delay in obtaining an expert. Rather, their failure to acknowledge any duty whatsoever to attempt to secure an expert for trial demonstrates an intentional disregard of the trial court’s orders and its efforts to bring this case to a speedy resolve. Although appellees do not allege that material witnesses have died or absented themselves, we believe that appellees ability to properly present its case at trial may have been substantially diminished by appellants’ failure to procure an expert. The incident which is the subject of this dispute occurred on November 2, 1981, approximately six and a half (6V2) years ago. Appellees have been denied an opportunity to prepare a defense to appellants’ claims of malpractice. The memories of witnesses who may be crucial to preparation of appellees’ defense have faded. See Carrol, supra (witnesses ability to recollect events is a factor to be considered in determining prejudice). Moreover, appellees have been forced to bear the stigma attached to an unresolved lawsuit for approximately four and a half (4V2) years and incur continuous legal expenses as a result of appellants’ procrastination in obtaining an expert. Consequently, the evidentiary difficulties which may face appellees as a result of the delay, in addition to the costs incurred and cloud cast upon appellees’ names, clearly warrant a finding that appellees have been prejudiced by appellants’ failure to obtain an expert within a reasonable time. Accordingly, the order dismissing appellants’ action and entering non pros in favor of appellees is affirmed.

ORDER AFFIRMED.

      . "The plaintiff has not retained an expert. [He] stipulates, pursuant to Pa. R.C.P. 4007.4(1) that [he] will seasonably supplement this response with the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of the testimony as required by Rule 4003.5(a)(1).” See Royster v. McGowen Ford, Inc., 294 Pa.Super. 160, 439 A.2d 799 (1982).

      . The "punishment must fit the crime." Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super. 245, 407 A.2d 1338, 1341 (1979). See also,

        Feingold v. Philadelphia National Bank, 313 Pa.Super. 579, 460 A.2d 339 (1983), Brunetti v. SEPTA, 329 Pa.Super. 477, 478 A.2d 889 (1984).

      . Counsel agreed that without an expert he could not sustain his burden of proof in this malpractice action.

      . Appellee, Dr. Jaurigue cites our memorandum opinion accompanying this court’s per curiam order in Finocchio v. Pheasant, 353 Pa.Super. 648, 506 A.2d 1340 (1985), as authority for his position that preclusion of testimony is proper sanction in this case. We strongly disapprove of this practice. "Memorandum opinions are unpublished and 'may not be cited as precedent in any brief, argument or subsquent opinion.’ ” NPW Medical Center of N.E. Penna., Inc. v. L.S. Design Group, P.C., 353 Pa.Super. 341, 347 n. 4, 509 A.2d 1306, 1309 n. 4 (1986), quoting Business of the Superior Court of Pennsylvania, Internal Operating Procedures V.8 at 9 (1983).

      . Even if we were to view the trial court’s order as one precluding expert testimony, we would find that preclusion was an appropriate sanction under the circumstances of this case. While the trial court made no specific finding with respect to the prejudice that appellee would suffer if appellant's expert were permitted to testify, we are satisfied that the trial court’s opinion reflects adequate consideration of the factors enumerated in Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986) and a determination that these factors weighed in appellant’s favor. See Pa. R.C.P. 4003.5(b), 4007.4 (1), (3), 4019(a)(l)(i); Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 521 A.2d 451, 457 (1987); Dion v. Graduate Hospital, 360 Pa.Super. 416, 520 A.2d 876, 882 (1987); Brophy v. Brizuela, 358 Pa.Super. 400, 517 A.2d 1293, 1295 (1986).


author: CERCONE, Judge:

text:
    546 A.2d 688
    COMMONWEALTH of Pennsylvania v. James McNAIR, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1988.
    Filed Aug. 22, 1988.

      Henry T. Crocker, Pottstown, for appellant.
    Patricia E. Coonahan, Assistant District Attorney, Cheltenham, for Com., appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence imposed after a bench trial in which appellant James McNair was found guilty of robbery, theft and disorderly conduct. A summary of the undisputed facts follows.

On November 3, 1986, at approximately 10:10 p.m. in a parking garage in King of Prussia, appellant and two accomplices began stalking Miriam Knapp as she climbed the stairs to the third level where her car was parked. As she approached her vehicle, Knapp heard footsteps. She turned and found appellant running toward her. Appellant was wearing a hooded sweatshirt, sunglasses and a bandana over his face. Afraid that he would rape or kill her, Knapp stood against her car and held her tote bag and purse away from her in the hope that appellant would take both bags and leave her unharmed. Appellant snatched both bags, which contained various personal items and $510.00 in cash, from Knapp.

Appellant was subsequently arrested and, following his conviction for robbery, theft and disorderly conduct, filed post-verdict motions which were denied by the order at issue in the trial court. On appeal, appellant contends that the Commonwealth’s evidence failed to prove beyond a reasonable doubt the requisite force necessary to uphold his conviction for robbery under 18 Pa.C.S.A. § 3701(a)(l)(v). This provision states that “[a] person is guilty of robbery if, in the course of committing a theft, he ... physically takes or removes property from the person of another by force however slight.” Id. (emphasis added).

In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth and whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549, (1988) (citation omitted). Mindful of this standard, we shall proceed to address the merits of appellant’s claim.

Appellant relies upon Commonwealth v. Smith, 333 Pa. Super. 155, 481 A.2d 1352 (1984), in which the defendant reached into the pocket of a blind victim, removed a partially protruding pack of cigarettes, and ran away. The lower court concluded that such an act was sufficient to sustain a conviction for robbery. We reversed, holding that the physical taking or removal of another’s property was not synonymous with the use of force, slight or otherwise. We concluded that the legislature intended a distinction between the offenses of robbery and theft:

The Statutory Construction Act provides that “words and phrases shall be construed according to their common and approved usage ...” 1 Pa.C.S. § 1903. Webster’s Dictionary defines force as a “general term for the exercise of strength or power to overcome resistance.” Here, no doubt because of the stealth and quickness with which appellant acted, [the victim] offered no resistance. As a matter of common usage, therefore, appellant’s taking of the pack of cigarettes was without “force,” slight or otherwise.

Id., 333 Pa.Superior Ct. at 159, 481 A.2d at 1355 (footnote omitted). Appellant herein contends that this case is analogous to Smith in that he did not take or use force to remove the handbags but, rather, the victim offered no resistance to him and voluntarily transferred her property to him. Thus, appellant surmises, the Commonwealth has proved merely that he accepted the property but did not take it from her by force.

The Commonwealth argues contrawise and relies instead on the precedent of Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738 (1984), where the defendant ran by the victim and snatched the purse slung over the victim’s arm. Our Supreme Court held:

The degree of actual force is immaterial, so long as it is sufficient to separate the victim from his property in, on or about his body. Any injury to the victim, or any struggle to obtain the property, or any resistance on his part which requires a greater counter attack to effect the taking is sufficient. The same is true if the force used, although insufficient to frighten the victim, surprises him into yielding his property.

Id., 506 Pa. at 174, 484 A.2d at 741. The Court added that the force could be actual force applied to the body, or constructive force, which “is the use of threatening words or gestures, and operates on the mind.” Id. (citing Commonwealth v. Snelling, 4 Binn. 379, 383 (1812)).

Viewing the evidence in the light most favorable to the Commonwealth, we conclude that the Commonwealth established beyond a reasonable doubt that appellant applied constructive force against the victim sufficient to support a conviction for robbery. The evidence adduced at trial clearly indicates that appellant followed the victim into and through a darkened parking garage, that he ran directly towards the victim, and physically removed from the victim her property. Such conduct surprised, intimidated, and instilled in the victim a fear that she would be harmed. Hoping that appellant would take her handbags and leave her unharmed, she yielded her property to him. Based upon the holding of our Supreme Court in Brown, conduct or words which are threatening in nature or which serve to place the victim in reasonable apprehension of harm to her person or property will establish the elements of constructive force necessary to sustain a conviction for robbery.

It is beyond peradventure that appellant’s conduct was sufficient to induce the victim into yielding her property to him. This alone differentiates this matter from Smith on which appellant relies and in which an unsuspecting blind victim was unaware that a theft was being committed. As such, appellant’s argument must fail.

The judgment of sentence is AFFIRMED.