author: ROWLEY, President Judge.

text:
    595 A.2d 1180
    COMMONWEALTH of Pennsylvania v. Stephen M. BOYLES, Appellant.
    Superior Court of Pennsylvania.
    Argued April 23, 1991.
    Filed July 29, 1991.

      Charles P. Wasovich, Altoona, for appellant.
    Darlee E. Sill, Asst. Dist. Atty., Hollidaysburg, for the Com., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.
   ROWLEY, President Judge.

Stephen M. Boyles appeals from the judgment of sentence entered September 6, 1990, in the Court of Common Pleas of Blair County. He raises the following issues in this appeal: (1) whether the guilty verdicts on the charges of involuntary deviate sexual intercourse and indecent assault are legally and logically inconsistent with the acquittal on the charge of rape; (2) whether the guilty verdicts were the product of free and voluntary deliberations by the jury; (3) whether the trial judge erred in refusing to permit appellant to present evidence of the victim’s prior allegations of sexual assaults; (4) whether trial counsel was ineffective for failing to properly qualify three character witnesses; and (5) whether the trial judge erred in ordering appellant to pay restitution to the victim. After considering these issues, we affirm the judgment of sentence.

At approximately 9:00 a.m. on May 14, 1984, appellant, during the course of his employment as a cable installer, entered the residence of Michelle Civils and her boyfriend. Ms. Civils, her boyfriend, and her two year old son were present in the home. Appellant finished his work, and while he was completing the bill, he and Ms. Civils’ boyfriend engaged in a conversation during which Ms. Civils’ boyfriend told appellant that he had to be at work at 9:30 a.m. At approximately 9:25 a.m., appellant left Ms. Civils’ home and her boyfriend went to work. Approximately fifteen minutes later, appellant returned to Ms. Civils’ home and asked her if he could reenter her home to look for a screwdriver he had misplaced. Ms. Civils permitted appellant to enter her home, and while he looked around the house for his screwdriver, Ms. Civils fed her son who was seated in a highchair. As Ms. Civils was feeding her son, appellant walked up behind her, grabbed her, and forced her to accompany him to the couch in the livingroom. He then forced her to engage in vaginal and oral intercourse with him. After appellant left, Ms. Civils called her boyfriend who returned home and called the police.

On June 18, 1984, appellant was charged with rape, involuntary deviate sexual intercourse (IDSI), and indecent assault. After a jury trial, over which the Honorable R. Bruce Brumbaugh presided, appellant was convicted on the charges of IDSI and indecent assault, but acquitted on the charge of rape. Trial counsel filed timely post-trial motions, but subsequently became ineligible to practice law in Pennsylvania. On October 31, 1986, appellant’s present counsel entered his appearance.

After denying appellant’s post-trial motions, the trial court sentenced appellant. Appellant filed a motion to modify sentence on July 9, 1990. On August 1, 1990, the trial court vacated the sentence so that the Commonwealth could present evidence as to a proper amount of restitution. On September 6, 1990, appellant was resentenced. On the charge of IDSI, the trial court sentenced appellant to a term of imprisonment of two and one-half years less one day to five years less two days plus the costs of prosecution and a $500 fine. On the charge of indecent assault, the trial court sentenced appellant to a term of imprisonment of one to two years to run consecutive to the term imposed for the IDSI charge, the costs of prosecution, and a fine of $250. The trial court also ordered appellant to pay the following restitution to Ms. Civils: the sum of $220.49 for the cost of medication, the cost of a psychological evaluation not to exceed $750, and $85 a week for thirty weeks for psychological counseling. After the trial court denied appellant's motion for reconsideration of sentence, he filed this timely appeal.

In his first issue, appellant contends that the verdicts of guilty on the charges of IDSI and indecent assault are legally and logically inconsistent with the verdict of not guilty on the charge of rape. Appellant concedes that Pennsylvania courts have held that “consistency in verdicts between the different counts of a criminal information is unnecessary.” Commonwealth v. Anderson, 379 Pa.Super. 589, 593, 550 A.2d 807, 809 (1988) (en banc) (citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)); See also Commonwealth v. Jackson, 385 Pa.Super. 401, 411, 561 A.2d 335, 340 (1989), aff'd on other grounds, 526 Pa. 294, 585 A.2d 1001 (1991); Commonwealth v. Trill, 374 Pa.Super. 549, 559, 543 A.2d 1106, 1111 (1988), allocatur denied, 522 Pa. 603, 562 A.2d 826 (1989). However, he contends that the present case is distinguishable from past cases in which this principle has been applied. Appellant supports this argument by citing Commonwealth v. Maxwell, 280 Pa.Super. 235, 421 A.2d 699 (1980), in which the inconsistent verdicts were based on two sets of sexual acts which occurred at different times and different locations and the evidence concerning each occurrence was different, and Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982), in which the defendant was convicted on charges of rape, involuntary deviate sexual intercourse and simple assault but acquitted on a charge of terroristic threats. The rule followed in these cases does not apply to the present case, appellant argues, because both appellant and the victim testified that the sexual acts occurred and the only issue which the jury had to decide was consent, or lack thereof. We do not agree with appellant that the distinction he urges is legally significant.

Appellant argues that “it is incomprehensible to conclude, as the jury did, that the deviate sexual act was the product of force or compulsion, and that the natural sexual act was consented to.” Appellant’s Brief at 15. However, it is improper, as appellant has done, to draw specific conclusions from a general verdict. Anderson, supra. “[A]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence. When a general verdict is rendered, knowledge of the basis of the decision rests only with the jury itself.” Id., 379 Pa.Superior Ct. at 592, 550 A.2d at 807. Accordingly, we will not disturb the guilty verdicts on the basis of an apparent inconsistency as long as the evidence is sufficient to support the guilty verdicts. Commonwealth v. Troy, 381 Pa.Super. 326, 553 A.2d 992 (1989), allocatur denied, 525 Pa. 626, 578 A.2d 413 (1990); Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984). After considering all the evidence in the light most favorable to the Commonwealth, Jackson, supra, we conclude that the evidence was sufficient to sustain the guilty verdicts on the charges of IDSI and indecent assault.

In his next issue, appellant contends that the verdict was not the result of free and voluntary deliberations by the jury. After deliberating for approximately two and one-half hours, the jury sent a note to the trial judge which stated the following:

We have discussed the issues until we can think of no more possible arguments. The vote was initially 7 to 5 to acquit and has not changed since. Jurors on both sides feel that the information is not sufficient to merit a change in this decision.

In response, the trial court gave the following instruction:

In a large proportion of cases absolute certainty cannot be expected. Although a verdict must be the verdict of each individual juror and not mere acquiescence to fellow jurors, nonetheless, jurors should examine the question of guilty or innocent with candor, and with proper regard and deference to the opinions of each other. It is the duty of the Jury to decide the case, if they can conscientiously do so. The Jury should listen with a disposition to be convinced to each other’s arguments. While undoubtedly the verdict of the jury should represent the opinion of each individual juror, it by no means follow[s] that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views and by arguments among the jurors themselves.
It cannot be that each juror should go to the jury room with a blind determination that the verdict should represent her or his opinion of the case at that moment, or that she or he should close his or her ears to the argument of women and men who are equally as honest and intelligent as herself or himself.
Members of the Jury, with that instruction to you I return you to the Jury Room to continue your deliberations. The Jury will leave the Courtroom.

Notes of Testimony (N.T.) 10/31/84 at 328.

With regard to this instruction, appellant argues that the note from the jury clearly indicated that the jurors felt that they were hopelessly deadlocked, and the trial court made no attempt to assist them, but instead lectured them on their responsibilities as jurors and warned them that they must reach an unanimous verdict. We disagree. The note sent to the judge did not clearly indicate that the jurors were “hopelessly deadlocked.” The jury had been deliberating for less than three hours. The trial court’s decision to send the jurors back to the jury room to continue deliberations was well within its discretion. See Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979); Commonwealth v. Smith, 324 Pa.Super. 156, 471 A.2d 510 (1984).

Furthermore, the instruction given to the jury was not improper under the Pennsylvania Supreme Court’s decision in Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). In Spencer, the Court held that the Allen charge should not be employed by trial courts when they are instructing juries because it singles out dissenting ju rors and suggests that they yield to the majority view. The charge given by the trial court in the present case did not single out jurors with a certain view; it merely “directed all jurors to consult with one another with a view to reaching an unanimous decision without doing violence to individual judgment.” Commonwealth v. Cook, 383 Pa.Super. 615, 620, 557 A.2d 421, 424 (1989). The instruction given by the trial court was proper and in no way coercive.

Appellant raises an additional issue concerning an alleged trial court error during the deliberations. At approximately 1:00 a.m., the jury returned with a not guilty verdict on the rape charge, a guilty verdict on the IDSI charge, and a guilty verdict on the indecent assault charge. However, when the jurors were polled, one juror indicated that she did not really agree with the verdict on the IDSI charge. Therefore, the jurors returned to their deliberations as to that charge only, and two hours later returned with a unanimous guilty verdict. Appellant contends that the trial court erred in failing to further instruct the jury before sending them back to deliberate and in sending the minority juror back to deliberate as the “lone eagle”, Appellant’s Brief at 22, attempting to dissuade the other eleven. As discussed above, the trial court had already properly instructed the jury with regard to considering each other’s views. Further instruction was unnecessary. See Commonwealth v. Turner, 390 Pa.Super. 216, 221, 568 A.2d 622, 624 (1989). For the above reasons, we conclude that the verdicts were the result of free and voluntary deliberations by the jury.

Appellant also argues that the trial court erred in refusing to permit appellant to present the testimony of Ms. Civils’ ex-husband and his mother concerning Ms. Civils’ prior allegations of sexual assaults. At trial, Judge Brumbaugh ruled that this testimony was not violative of the Rape Shield Law, but that it was barred under the doctrine of spousal privilege. In her opinion, Judge Kopriva determined that this testimony was irrelevant and was also barred by the Rape Shield Law. We agree.

To be admissible, evidence must be competent and relevant. Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989), allocatur denied, 524 Pa. 617, 571 A.2d 380 (1989). Evidence is relevant if it “logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.” Id., 381 Pa.Superior Ct. at 491, 554 A.2d at 108.

We fail to see how the fact that Ms. Civils had reported two sexual assaults in the past is relevant to whether she consented to have intercourse with appellant. Appellant apparently wanted the jury to conclude that Ms. Civils had a propensity for making false allegations of sexual assaults, thus, the present allegation was also false. However, he presented no evidence that Ms. Civils’ past allegations were in fact false. Moreover, he presented no evidence that Ms. Civils had made false allegations of sexual assaults after consenting to engage in intercourse with her alleged assailants. Under these circumstances, we conclude that the testimony was properly excluded as it was irrelevant.

Furthermore, this evidence is inadmissible pursuant to Pennsylvania’s Rape Shield Law which provides the following:

(a) General rule.—Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

18 Pa.C.S. § 3104(a). In Commonwealth v. Johnson, 389 Pa.Super. 184, 566 A.2d 1197 (1989), allocatur granted, 525 Pa. 643, 581 A.2d 569 (1990), an en banc panel of this Court held that “the Rape Shield Law is a bar to admission of testimony of prior sexual conduct involving a victim, whether it is consensual or the result of nonconsensual or assaultive behavior, unless it has probative value which is exculpatory to the defendant.” Id., 389 Pa.Superior Ct. at 195-96, 566 A.2d at 1202. Appellant contends that the testimony concerning Ms. Civils’ past allegations of sexual assaults is exculpatory because it attacks her credibility and supports his assertion that the sexual activity was consensual. In support of this proposition, appellant cites Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985).

In Black, the defendant’s daughter accused him of raping her. The defendant offered testimony concerning his daughter’s consensual sexual relationship with her brother who had left home and separated from the family after violent arguments with the defendant. The defendant offered this evidence to show bias on the part of the daughter against him and a motive to seek retribution by false accusation. Under those circumstances, the Court held that the Rape Shield Law could not be used to exclude relevant evidence showing a victim’s bias or attacking his or her credibility.

Although the court in Black stated that evidence attacking the victim’s credibility could not be excluded under the Rape Shield Law, the attack on the victim’s credibility in that case was based on the victim’s possible bias against and hostility toward the defendant and her motive to fabricate. In later cases, this Court has applied the holding of Black only where the victim’s credibility was allegedly affected by bias against or hostility toward the defendant, or the victim had a motive to seek retribution. Compare Commonwealth v. Frank, 395 Pa.Super. 412, 433, 577 A.2d 609, 620 (1990) and Commonwealth v. Erie, 361 Pa.Super. 44, 50-51, 521 A.2d 464, 467-69 (1987), allocatur denied, 517 Pa. 621, 538 A.2d 875 (1988) (following Black) with Commonwealth v. Reefer, 393 Pa.Super. 193, 197, 573 A.2d 1153, 1154 (1990) and Commonwealth v. Nenninger, 359 Pa.Super. 444, 451-52, 519 A.2d 433, 437 (1986) and Commonwealth v. Dear, 342 Pa.Super. 191, 199-202, 492 A.2d 714, 719-20 (1985) and Commonwealth v. Coia, 342 Pa.Super. 358, 361, 492 A.2d 1159, 1161 (1985) (distinguishing Black). Moreover, this Court has determined that, under § 3104(a) of the Rape Shield Law, testimony regarding the victim’s claims of past sexual attacks is inadmissible. See Troy, supra, 381 Pa.Super. at 335-36, 553 A.2d at 997 (Rape victim’s allegation of a previous rape is “not a proper focus on inquiry pursuant to 18 Pa.C.S.A. § 3104(a).” (footnote omitted)); see also Coia, supra.

In the present case, unlike Black, there was no evidence, other than the conduct that forms the basis of the charges filed in this case, that Ms. Civils was biased against or hostile toward appellant. In fact, she testified that she did not remember ever having seen appellant before this incident. N.T. 10/29/84 at 135, 149. In addition, although appellant ostensibly offered this evidence to attack Ms. Civils’ credibility, he was primarily seeking to buttress his claim of consent. However, in Black, the Court explained that the holding “is not meant to limit the importance of the general principles embodied in the Rape Shield Law, particularly that evidence of sexual conduct with third persons is irrelevant to prove ... consent of the victim.” Black, supra, 337 Pa.Super. at 558, 487 A.2d at 401. See also Coia, supra, 342 Pa.Super. at 362 n. 2, 492 A.2d at 1161 n. 2 (“Even if appellant had proceeded under a consent theory of defense, ... under Commonwealth v. Black, supra, evidence of sexual conduct with third persons is irrelevant to prove consent of the victim.”); Dear, supra, 342 Pa.Super. at 202, 492 A.2d at 720 (“[UnderJDboth Black and the statute itself (18 Pa.C.S. § 3104)[,] ... evidence of sexual conduct with third persons is irrelevant to prove either consent or general moral defect of the victim.” (footnote omitted)). The holding of Black is applicable where the defendant alleges that the victim’s credibility is questionable because of a bias against or hostility toward the defendant. However, where, as here, the defendant seeks to introduce evidence of the victim’s past allegations of sexual assaults in order to prove consent of the victim, the evidence is inadmissible.

In his next issue, appellant contends that trial counsel was ineffective for failing to properly qualify potential character witnesses. In Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990), the Supreme Court set forth the following standard for reviewing an ineffectiveness of counsel claim:

[W]e must first determine whether the issue underlying the claim is of arguable merit. If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial.

Id., 525 Pa. at 344, 580 A.2d at 748 (citations omitted). In addition, counsel is presumed to be effective and a defendant has the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990).

It is well-settled that testimony as to the defendant’s good character is substantive evidence and may be sufficient to create a reasonable doubt of guilt. Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989). Evidence of the defendant’s good character is established by testimony of witnesses as to the reputation of the defendant in the general community. Commonwealth v. Luther, 317 Pa.Super. 41, 50, 463 A.2d 1073, 1078 (1983). In the present case, trial counsel initially planned to call six character witnesses to testify on behalf of appellant. He called only four to the stand. Of the four who actually testified, only the testimony of one was admitted into evidence for the following reasons. Trial counsel failed to question the first witness about appellant’s reputation in the community. As to the second witness, trial counsel asked some proper questions but received nonresponsive answers. The testimony of the third character witness was received into evidence. Finally, the fourth character witness did not know appellant’s reputation in the general community.

Appellant does not contend that counsel was ineffective for failing to call the two character witnesses who he initially planned to call but did not. Furthermore, although we find merit to appellant’s argument “that defense counsel’s lack of skill in framing appropriate questions, or his failure to prepare the witness[ ] contributed to the testimony of [the first witness] being stricken from the record,” Trial Court Opinion at 19, we do not find merit to appellant’s ineffectiveness claim as to the second and the fourth witnesses. Regarding the second witness, trial counsel did ask appropriate questions; however, the witness gave nonresponsive and inappropriate answers. We will not deem counsel to be ineffective when a defense witness gives nonresponsive and unhelpful answers to proper questions.

Similarly, trial counsel again asked proper questions of the fourth witness concerning the witness’ knowledge of appellant’s reputation in the community. The witness, however, did not know appellant’s reputation in the community. Granted, this witness was not a proper character witness and his testimony was stricken because of that fact. However, appellant has not argued that there were better character witnesses who trial counsel could have called. Counsel will not be deemed ineffective merely because he called an unavailing witness. See Commonwealth v. Colpo, 367 Pa.Super. 223, 532 A.2d 870 (1987) (trial counsel was not ineffective for calling two character witnesses who did not know the defendant at the time of the incident for which he was on trial in light of the fact that trial counsel called other proper character witnesses). Therefore, we find merit to appellant’s claim, but only as to the first character witness.

In addition, it is difficult to discern a reasonable basis for trial counsel’s actions. It is possible, as the trial court noted, that the witness was not a proper character witness and that counsel called him to testify so that the jury could hear his favorable remarks concerning appellant even though the jury was later instructed to disregard those remarks. See Trial Court Opinion at 19. As discussed above, appellant has not argued that there were better character witnesses who trial counsel could have called. However, because it is unlikely that trial counsel’s chosen strategy was to call a character witness who could not properly testify to appellant’s reputation in the community, we will consider whether appellant was prejudiced by the striking of this testimony.

To prove prejudice in the context of an ineffectiveness claim, the defendant must show that counsel’s error had an adverse effect on the outcome of the trial. Commonwealth v. Ennis, 394 Pa.Super. 1, 574 A.2d 1116 (1990). “An appellant must show that the error was ‘so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.’ ” Commonwealth v. Morocco, 375 Pa.Super. 367, 371, 544 A.2d 965, 967 (1988), allocatur denied, 520 Pa. 615, 554 A.2d 508 (1989) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). In the present case, the jury heard the testimony of one of the witnesses as to appellant’s good character and reputation in the community. Furthermore, although the testimony of the first witness was stricken, the jury heard the witness testify about his favorable opinion of appellant. The jury also heard the other two witnesses testify about their favorable opinions of appellant although that testimony was not proper character testimony. Accordingly, we conclude that appellant was not deprived of a fair trial because the testimony of one character witness was stricken due to trial counsel’s inability to qualify him, and appellant has not met his burden of proving ineffectiveness of counsel.

Finally, appellant contends that the sentencing judge erred in ordering appellant to pay restitution to Ms. Civils in the amount of $3,524.49 for medication, and psychological evaluation and counseling. “[Restitution is within the discretion of the sentencing court but must be supported by the record, and the court must determine the loss or damages resulting from the defendant’s conduct, the amount of compensation the defendant can afford to pay and how such amount shall be paid.” Commonwealth v. McLaughlin, 393 Pa.Super. 277, 392, 574 A.2d 610, 617 (1990). Although restitution is aid to the victim of a crime, its primary purpose is to rehabilitate the defendant, Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989), allocatur denied, 525 Pa. 597, 575 A.2d 564 (1990), and “to impress upon the defendant that his or her criminal conduct caused the victim’s loss or personal injury and that it is his or her responsibility to repair the loss or injury as far as possible.” Commonwealth v. Anderson, 394 Pa.Super. 299, 300, 575 A.2d 639, 639 (1990).

First of all, appellant contends that the trial court erred in ordering restitution because the testimony elicited at the restitution hearing established only an approximation of the cost of treatment. We disagree. At the restitution hearing, Dr. JoAnn Hunter-Farr, a licensed clinical psychologist who will be treating Ms. Civils, testified that Ms. Civils will need a complete psychological evaluation. Restitution Hearing Transcript 9/6/90 (R.H.Tr.) at 8. Dr. Hunter-Farr could not state the exact cost of this evaluation, but she did state that it would not exceed $750. Id. at 10. In the restitution order the trial court directed appellant to pay for this evaluation in the sum of no more than $750. We find the trial court’s order an appropriate way to impose upon appellant the obligation to pay for this evaluation when the exact cost of the evaluation is not known.

In addition, Dr. Hunter-Farr testified that Ms. Civils would need at least one year of therapy with at least one session per week, and that each session costs $85. Id. The trial court ordered appellant to pay $85 a week for thirty weeks. This Court has held that restitution can be imposed for emotional and mental disturbances as well as for physical harm. Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984). However, the extent of the psychological counseling needed to treat these emotional and mental disturbances cannot be measured precisely. Nonetheless, treatment for the emotional and mental harm which Ms. Civils has suffered is as important as the medication used to treat the physical harm which she suffered. We do not believe that appellant should be exempted from paying restitution merely because the exact duration or extent of the treatment is impossible to foresee. The trial court recognized this dilemma and fashioned an appropriate order. We find no error.

Appellant also contends that the restitution order is not consistent with his ability to pay. Although an award of restitution should not be excessive, McLaughlin, supra, “[t]he true ‘rehabilitative goal [of restitution] is defeated only when the payments ordered by the court are so unreasonable in view of the defendant’s financial circumstances and ability to work that despite good faith efforts, the defendant cannot hope to comply.’ ” Commonwealth v. Valent, 317 Pa.Super. 145, 149-50, 463 A.2d 1127, 1129 (1983) (quoting Commonwealth v. Wood, 300 Pa.Super. 463, 468, 446 A.2d 948, 950 (1982)).

According to the income and expense statement submitted by appellant and his wife, which is included in the certified record, their household expenses total approximately $1150 a month. Appellant will be serving his sentence at a county prison and will be permitted to participate in the Work Release Program. At the restitution hearing, he testified that was earning approximately $1000 a month. R.H.Tr. at 25. In addition, he testified that his wife contributes to the household income and earns approximately $700 a month. Id. at 25-26. While the payment of restitution may be a hardship for appellant, the fact that a defendant may have to make substantial sacrifices is not an obstacle to a restitution order. Wood, supra. In addition, an order of restitution need not be in an amount which can be paid from a defendant’s current earnings. Commonwealth v. Madron, 339 Pa.Super. 105, 488 A.2d 331 (1985). Furthermore, appellant does not have to pay for Ms. Civils’ counseling indefinitely; appellant only has to pay for thirty weeks. After reviewing the record, we conclude that the trial court was aware of the pertinent financial information when it imposed the order, and that the order is not excessive or beyond appellant’s ability to pay.

Finally, appellant argues that there is no evidence that a causal connection exists between Ms. Civils’ emotional problems and appellant’s actions. He emphasizes the testimony of Deborah Ann Hockenberry, a volunteer counselor with the Sexual Assault Volunteer Program who worked with Ms. Civils for two years prior to the restitution hearing. Specifically, Ms. Hockenberry testified that “I’m aware that there were other problems with Michele [sic] before.” R.H.Tr. at 14. While it is true that the defendant’s actions must cause the injury in order for restitution to be proper, see McLaughlin, supra, we are in agreement with the following statements made by the trial court:

[When] a victim ... is sexually abused, if they are not of a stable mind to begin with then the restitution pays for at least a portion of the psychological counseling that will be necessary to overcome the exaggeration or the exacerbation of the already existing problem.
If that weren’t true, anybody who becomes a victim that already had problems would never be entitled to restitution. And that "shouldn’t be the case. A defendant should not not have to pay restitution because the person that they chose to victimize had some other problems.
... Now that doesn’t mean that you would be forever involved in paying until they’re well but certainly that you contribute to the psychological counseling that’s necessary.

R.H.Tr. at 34-35.

Ms. Civils was the victim of a sexual assault perpetrated by appellant. Although she may have emotional problems stemming from other sources, she did not seek treatment until after the assault by appellant. In fact, Ms. Hockenberry testified that this assault has caused Ms. Civils to experience a great deal of trauma. Id. at 14. It is a reasonable conclusion that at least part of Ms. Civils’ emotional problems were caused by that assault. Dr. HunterFarr testified that Ms. Civils will need at least one session of therapy a week for at least a year. The trial court ordered appellant to pay for one session a week for thirty weeks. This is a reasonable and fair appropriation and we find no error.

Judgment of sentence affirmed.

      . Appellant does not deny that the sexual activity occurred. However, he contends that Ms. Civils initiated, and consented to, the activity.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. § 3123.

      . 18 Pa.C.S. § 3126.

      . On December 31, 1989, Judge Brumbaugh left office and this case was assigned to the Honorable Jolene Grubb Kopriva.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . It is interesting to note that, when this instruction was given, the majority of the jurors were voting to acquit.

      . 18 Pa.C.S. § 3104.

      . Although the trial court excluded this testimony on the grounds of spousal privilege, we can affirm a ruling of the trial court on a basis other than that relied upon by the trial court. Commonwealth v. Toanone, 381 Pa.Super. 336, 342, 553 A.2d 998, 1001 (1989).

      . In response to trial counsel’s inquiry into appellant’s reputation for honesty, the witness stated, "He’s been honest whenever I’ve been concerned. I work in a small store and whenever he comes in there to buy stuff, he, you know, always pays for it.” N.T. 10/31/84 at 270. Similarly, when trial counsel asked the witness about appellant’s reputation for violence, the witness answered, "I’ve never seen Steven get violent." Id.

      . In order for trial counsel to be deemed ineffective for failing to call a certain witness, the defendant "must show that: (1) the witness was available; (2) that he informed counsel of the existence of the witness; (3) that the witness was prepared to cooperate and testify for the defense; and (4) that the witness’s testimony was so essential to the defense that his or her absence caused an unfair verdict or sentence." Commonwealth v. Woods, 394 Pa.Super. 223, 230, 575 A.2d 601, 605 (1990) (citations omitted).

      . Appellant does not challenge the $220.49 which Ms. Civils paid for medication after the assault.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    595 A.2d 1190
    Franco MOSCATIELLO, i/a, t/d/b/a Moscatiello Construction Company v. PITTSBURGH CONTRACTORS EQUIPMENT COMPANY, a Subsidiary of Tri-State Machinery Distributors, Inc., Appellant, v. CURBMASTER, INC.
    Superior Court of Pennsylvania.
    Argued April 25, 1991.
    Filed July 30, 1991.

      Stacey F. Vernallis, Pittsburgh, for appellant.
    Alan Berman, Pittsburgh, for Moscatiello, appellee.
    David G. Klaber, Pittsburgh, for Curbmaster, appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.
   HESTER, Judge:

Pittsburgh Contractors Equipment Company (“PCEC”) appeals from judgment entered on that portion of the order of August 21, 1990 entered in the Allegheny County Court of Common Pleas which denied the relief sought by PCEC in its post-trial motions. We find appellant’s numerous allegations of trial court error to be without merit, and accordingly, we affirm the judgment.

This action arises out of a contract entered between appellant, PCEC, and appellee, Franco Moscatiello, i/a, t/d/ b/a Moscatiello Construction Company (“Moscatiello”), for the purchase of a concrete paving machine (“paver”) manufactured by Curbmaster, Inc. Approximately one month before the contract between PCEC and Moscatiello was executed in May, 1987, Franco Moscatiello and his superintendent, Jay Palino, met with the vice president of PCEC to discuss the purchase of the paver. At the time of the meeting, PCEC was aware that Moscatiello had been awarded a contract by the Pennsylvania Department of Transportation (“PennDot”) to reconstruct a road, and that PennDot required that the concrete surface of the road be laid by a certain type of paving machine. The manufacturer of the paver, Curbmaster, also participated in these preliminary discussions. The vice president of Curbmaster had a telephone conversation with a representative of PCEC and Moscatiello in which he suggested that either of two machines manufactured by Curbmaster would be suitable for the job and acceptable to PennDot. Reproduced Record (“R.R.”) at 92-93a, 340-41a, 432a, 492a.

On or about May 19, 1987, Mr. Palino, Moscatiello’s superintendent, executed a contract on a form provided by PCEC for the purchase from PCEC of a Curbmaster concrete spreader-finisher machine for a total price of $85,-125.42. PCEC’s purchase agreement stated on the reverse side that no warranties were offered on equipment sold and that any implied warranties were excluded in favor of the manufacturer’s offer of warranties. The contract also contained a provision which limited a buyer’s remedy solely to return of the purchase price, less wear and use of the machine. In addition, all consequential and incidental damages were expressly excluded.

Moscatiello had no previous dealing with PCEC and was not on notice that the sales agreement relinquished warranties and limited damages. During the contract negotiations, neither PCEC’s vice president nor the salesman in attendance directed Moscatiello’s attention to the reverse side of the contract where the warranty exclusions were printed.

The paver was manufactured by Curbmaster at its plant in Iowa and shipped to Pittsburgh, arriving at Moscatiello’s job site on June 15, 1987. When the paver arrived, it contained no warranty information from the manufacturer. It was alleged during trial that Curbmaster’s warranty information was attached to Curbmaster’s operations and parts manual, which was delivered to PCEC following execution of the sales contract between Curbmaster and PCEC. However, the trial court found that the manual which ultimately was delivered to Moscatiello did not contain Curbmaster’s warranty exclusions and disclaimers. A Curbmaster employee was present when the paver arrived, assisted Moscatiello employees in assembling it, instructed Moscatiello employees on how to operate the machine, and was present when the machine was used for the first time. The Curbmaster representative never informed Moscatiello employees that the machine’s warranties were limited or excluded.

According to the testimony of four witnesses during trial, from the time it was first used in June, 1987, to on or about November 12, 1987, when it was used last, the paver failed to lay concrete evenly. Furthermore, the product which resulted was unacceptable to PennDot. During the five-month period of the paver’s operation, Moscatiello made numerous complaints to PCEC about the paver’s failure to produce an acceptable product. During this period, PCEC and Curbmaster unsuccessfully attempted numerous times to remedy the defects in the machine. The machine finally was returned to Curbmaster in December, 1987. As a result of the paver’s failure to perform its functions properly, Moscatiello incurred increased labor costs in order to produce a product acceptable to PennDot.

On February 8, 1988, Moscatiello filed a complaint against PCEC asserting breach of contract, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. PCEC joined Curbmaster as an additional defendant, asserting breach of express warranty, breach of implied warranties of merchantability and fitness for a particular purpose, and negligence. By agreement of the parties, PCEC dismissed its negligence claim against Curbmaster and amended its complaint to add a claim against Curbmaster for breach of contract.

Following a bench trial, the trial court issued an opinion and order dated March 14, 1990, awarding $146,811.43 in damages, plus interest, to Moscatiello against PCEC and Curbmaster jointly. Both PCEC and Curbmaster filed timely post-trial motions, and on August 21, 1990, the trial court issued an opinion and order denying Curbmaster’s post-trial motions and granting PCEC’s post-trial motion only insofar as it related to PCEC’s right to indemnification from Curb-master. PCEC filed this timely appeal from the portion of the order which denied its post-trial motions.

PCEC first argues that the trial court erred in concluding that the disclaimer of warranties contained in the sales agreement was not conspicuous. PCEC contends that the disclaimer contained in the contract between Moscatiello and itself was a binding and effective disclaimer of all warranty liability, which consequently, precludes Moscatiello’s claims of breach of warranties and breach of contract.

Initially, in reviewing a trial court’s denial of a motion for judgment n.o.v., we must “accept as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and reject all testimony and inferences to the contrary.” Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984), quoting Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892-93 (1984). Further, we must reverse an order denying the motion only “when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case.” Timbrook v. Foremost Ins. Co., supra. Applying this standard to the warranty language contained in the instant sales agreement, we concur with the trial court’s determination that PCEC’s disclaimer of warranties was inconspicuous and therefore ineffective as a bar to Moscatiello’s breach of warranty claims.

Counts three and four of Moscatiello’s complaint against PCEC consist of claims for breach of implied warranty of merchantability and for breach of implied warranty of fitness for a particular purpose. The Uniform Commercial Code (“U.C.C.”) defines the implied warranty of merchantability as a warranty that the goods will pass without objection in the trade and are fit for the ordinary purposes for which such goods are used. 13 Pa.C.S.A. § 2314. Comment 11 to this section of the U.C.C. states that this warranty is so commonly taken for granted that its exclusion from a contract is recognized as a matter threatening surprise and therefore requiring special precaution. Thus, to exclude the implied warranty of merchantability, the exclusionary language must mention the term “merchantability” and be conspicuous. 13 Pa.C.S.A. § 2316(b). As noted in Comment 1 to section 2316(b), this section of the U.C.C. is designed to protect a buyer from unexpected and unbargained for language of disclaimer.

A term or clause is “conspicuous” when it is “so written that a reasonable person against whom it is to operate ought to have noticed it____ Language in the body of a form is conspicuous if it is in larger or other contrasting type or color____” 13 Pa.C.S.A. § 1201. Comment 10 to section 1201 states that the test for conspicuousness is whether attention can reasonably be expected to be called to the exclusions. The primary object of the conspicuousness requirement is to avoid fine print waiver of rights by the buyer. Greenspun v. American Adhesives, Inc., 320 F.Supp. 442 (E.D.Pa.1970).

The exclusionary clause involved herein is located on the reverse side of a standard sales contract. The front of the form contains blank lines in which are typed a customer’s name, shipping instructions, detailed description of the machine, price breakdown, and payment terms. All of the information is individually typed on separate lines at least one quarter of an inch wide. Toward the bottom of the form, inside the margins for the price breakdown, is the phrase in capital letters: “TERMS AND CONDITIONS ON REVERSE SIDE ARE AN INTEGRAL PART OF THIS ORDER.” Immediately below is a sentence containing the clause, in smaller type, “subject to the provisions hereof and conditions contained on reverse side hereof.”

By contrast, the reverse side of the form contains eighteen numbered paragraphs which fill the page, top to bottom and side to side, in extremely small type, approximately one-sixteenth inch in height and one-fourth the size used on the front. The capital letters are slightly larger, but of the same color and in the same type style as the rest of the printing. The type used on the front of the contract is much larger and bolder than that used on the reverse side. The warranty disclaimer is buried in paragraph number sixteen at the bottom of the page. Though the operative language of the disclaimer is set forth in capital letters, the size of the type of even the capital letters is so minute that it simply does nothing to attract attention to the clause. As Moscatiello aptly observes, “to say that the print is ‘fine’ is an understatement.” Appellee’s brief at 12.

Upon our review of the agreement, we have no doubt, as the trial court stated, that PCEC’s warranty disclaimer “did not adequately put Moscatiello on notice that substantial rights of theirs were being relinquished.” Trial court opinion at 5. The disclaimer was set forth in some of the “finest” print this court ever has read. Even the language on the front of the contract referring to terms and conditions on the reverse side of the contract was inconspicuous as well as misleading. The letters are capitalized but are buried in the middle of the contract within the margins of the price breakdown of the goods. In addition, reference is made only to the “terms” and “conditions” on the reverse side rather than to the limitation on warranties and remedies available to the buyer. This language clearly does not meet the letter or the spirit of the U.C.C. requirements.

The evidence during trial was unequivocal that PCEC was fully familiar with the terms of the agreement, having employed it for many years, and had numerous opportunities throughout the purchase negotiations to notify Moscatiello of the exclusion of warranties and the limitation on potential remedies set forth on the reverse side of the contract. It is clear that PCEC failed to take advantage of those opportunities. Instead, as the trial court noted, PCEC “utilized a boiler-plate provision in a standard sales agreement to exclude important warranties that naturally arise in the course of any sale.” Trial court opinion at 5. Section 2316 of the U.C.C. protects buyers such as Moscatiello from this type of disclaimer hidden deep within the illegible fine print on the reverse side of a standard sales contract, and that section invalidates such exclusionary language. Thus, we agree with the trial court’s finding that the warranty disclaimer was ineffective, and we find no error in the trial court’s decision to allow Moscatiello to pursue its cause of action for breach of implied warranty of merchantability.

We also concur with the trial court’s finding that PCEC, in fact, did breach its implied warranty of merchantability. Our review of the record in accordance with our standard compels the conclusion that the machine in question could not “pass without objection in the trade under the contract description,” nor was it “fit for the ordinary purposes for which such goods are used.” 13 Pa.C.S.A. § 2314(b). From the first use of the paver, it failed to lay concrete evenly, which even a lay person would recognize as inadequate for its intended purpose. Further, PennDot’s strict requirements regarding its paving were known to PCEC. Testimony during trial established that representatives from PCEC and the manufacturer, Curbmaster, devoted as many as twenty days on site attempting to make the paver perform the functions for which Moscatiello purchased it. They failed, and consequently, the machine was returned. Since the paver never conformed to the contract and obviously was not fit for the ordinary, let alone the specific, purposes for which it was sold, we find no error in the trial court’s determination that PCEC breached its implied warranty of merchantability and that Moscatiello was entitled to recover damages from PCEC for that breach.

PCEC next argues that the trial court erred in failing to calculate the damages to which Moscatiello was entitled in a manner consistent with the limitation of remedies provision set forth in the sales agreement. Specifically, PCEC contends that Moscatiello is bound by the limitation of remedies provisions in the contract regardless of whether such provisions were conspicuous “inasmuch as any limitation is a term set forth in a contract executed by [Moscatiello].” Appellant’s brief at 22. Moscatiello responds that the provisions in the contract which prohibit recovery of incidental and consequential damages are unconscionable, and therefore, the trial court was correct in refusing to enforce those provisions. We concur and consequently, find no error in the trial court’s ruling.

Our examination begins with a review of the applicable sections of the U.C.C. Section 2714(c) provides that incidental or consequential damages may be recovered in an action for breach of contract or breach of warranty. 13 Pa.C.S.A. § 2714(c). Consequential damages include “any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know ...” 13 Pa.C.S.A. § 2715(b)(1). Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. 13 Pa.C.S.A. § 2719(c). Section 2302 of the U.C.C. allows the court to refuse to enforce the contract as a whole or any single clause or group of clauses if permeated by unconscionability. 13 Pa.C.S.A. § 2302(a). The principle upon which this section rests is one of prevention of oppression and unfair surprise. 13 Pa.C.S.A. § 2302, Comment 1.

The verdict which Moscatiello received from the trial court included the sum of $64,567.93, representing the increased costs it incurred in laying concrete with the defective paver and interest on money borrowed by Moscatiello to purchase the machine. PCEC argues that this portion of the award is erroneous due to the existence of paragraphs seventeen and eighteen in the parties’ sales contract which provide the following:

17. If the goods covered by this Order are new, Buyer and Vendor agree that there is no failure of an essential purpose of Buyer’s exclusive and limited remedy so long as Vendor is willing and able to repair or replace any part which is not as warranted. If Vendor is not willing and able to repair or replace any such part or if for any reason it is determined that Buyer’s exclusive and limited remedy has failed of its essential purpose, Buyer’s sole and exclusive remedy shall then be to have its purchase price returned in exchange for the goods, less a reasonable charge for any use by Buyer.
18. It is agreed that Vendor shall not be liable for any incidental or consequential damages occasioned by the sale, possession, operation, maintenance or use of the goods or for any failure of the goods to operate under any claim of breach of warranty or contract, negligence, strict liability or otherwise.

A clause in a contract is considered unconscionable and unenforceable if there is “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Germantown Manufacturing Co. v. Rawlinson, 341 Pa.Super. 42, 55, 491 A.2d 138, 145 (1985), quoting E.A. Farnsworth Contracts 314 (1982). In Germantown, we were asked to determine the enforceability of a confession of judgment clause which was buried, as were the contract provisions at issue here, within the fine print of boilerplate language of a standard form. In finding the clause unenforceable, we were guided by the following analysis contained in section 353 of J. Murray, Murray on Contracts, (2d ed., 1974):

Parties to a contract rarely consciously advert to any number of terms which are binding upon them. If such terms allocate the risks of the bargain in a manner which the parties should have reasonably expected, they are enforceable—they are, to use the expression of Karl Llewellyn, decent terms. If the terms of the contract suggest the reallocation of material risks, an attempted reallocation may be so extreme that regardless of apparent and genuine assent, a court will not enforce it____ The parties will not be found to have agreed to an abnormal allocation of risk if the only evidence thereof is an inconspicuous provision on the boilerplate of a standard form. At a minimum, the reallocation must be physically manifested in a fashion comprehensible to the party against whom it is sought to be enforced. Finally, such party must have had a reasonable choice in relation to such reallocation.

Germantown Manufacturing Company v. Rawlinson, 341 Pa.Super. at 56-57, 491 A.2d at 146.

The question presented in the instant sales agreement, therefore, is whether Mr. Moscatiello and his superintendent reasonably should have expected that if the paver failed to perform as promised, they, rather than the seller,, would be responsible for the economic losses which resulted. We cannot agree with appellant that appellee harbored any such expectation.

First, paragraphs seventeen and eighteen of the sales contract are, as appellee aptly states in his brief, “classic examples of physically inconspicuous provisions in the boilerplate of a standard form.” Appellee’s brief at 21. Neither Mr. Moscatiello nor Mr. Palino understood that buried in the fine print on the reverse side of the contract was a term that shifted to Moscatiello the risk of loss resulting from the purchase of a machine which was unable to perform the operations that it was designed to perform. Neither man was a dealer in concrete-spreader finishers or heavy equipment of any kind. Neither individual had ever dealt with PCEC on any previous occasion, and neither had any knowledge of the standard contracts or business practices of PCEC.

Thus, Moscatiello qualified as neither a merchant, as the term is defined in 13 Pa.C.S.A. § 2104, nor a substantial business concern skilled in the negotiation of sales contracts for goods. It is undisputed that PCEC was both. Courts have upheld limitation of damage provisions in sales contracts between merchants or experienced business concerns because there is no disparity between such entities in either bargaining power or sophistication. See K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970) (buyers were an experienced attorney and the owner of a used furniture business who dealt with the renovation and sale of the type of machines being purchased); Chatlos Systems, Inc. v. National Cash Register Corp., 635 F.2d 1081 (3rd Cir.1980) (buyer was a manufacturer of complex electronic equipment who purchased a defective computer system).

Appellant places great reliance on S. M. Wilson and Co. v. Smith International, Inc., 587 F.2d 1363 (9th Cir.1978), in support of its argument that the limitation of damages provisions were reasonable. However, just as in K & C, Inc. and Chatios, the parties in Wilson held equal bargaining positions as experienced business concerns. Moreover, the limitation of damages provision in Wilson was agreed to specifically by the buyer during purchase negotiations between the parties, and the damage provision as well as the warranty disclaimer were conspicuously set forth in the contract between the parties.

Similarly, the limitation of damages provision upheld by the court in Marr Enterprises, Inc. v. Lewis Refrigeration Co., 556 F.2d 951 (9th Cir.1977), also was set forth conspicuously in the contract between the parties. The contract provision at issue in the final case cited by appellant, FMC Finance Corp. v. Murphree, 632 F.2d 413 (5th Cir.1980), was a warranty disclaimer rather than a limitation of damage provision and therefore, is inapposite to the facts before us.

The contract provisions at issue in the cases cited by appellant are clearly distinguishable from the provisions contained in the contract between the parties herein. Each contract either involved experienced business concerns holding equal bargaining positions or the provision at issue was displayed in a very conspicuous manner in the contract. Appellee was not a dealer or manufacturer of heavy equipment of any kind, and he lacked any prior experience negotiating a contract for the purchase of this type of equipment with PCEC. He had no reason to expect that the contract he signed contained a clause that was buried in the fine print on the reverse side which shifted to him the risk of economic loss resulting from the purchase of a machine which was incapable of performing the job that it was designed to do.

In contrast, PCEC was a well-established dealer engaged in the sale, service, and support of construction equipment to area contractors. It had negotiated many other contracts for the purchase of this type of equipment and was familiar with the “conditions” on the reverse side of its own form which disclaimed warranties and limited damages. PCEC clearly held superior bargaining position with respect to Moscatiello. Moreover, the limitation of damages provisions were classic examples of physically inconspicuous provisions in the boilerplate language of a standard form. Thus, we find the numerous cases cited in appellant’s brief inapplicable to the case at bar. Accordingly, we concur with appellee’s contention that the limitation of damages provisions contained in its contract with PCEC are unconscionable, and we affirm the trial court’s refusal to give effect to those provisions.

Appellant next argues that the integration clause contained in the contract between the parties operates as a waiver of appellee’s objections to the terms and conditions of the agreement of sale. While we agree that the terms of an integrated agreement may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement, an integration clause cannot validate an unconscionable or otherwise invalid contract provision. The remedies which the trial court afforded appellee were specifically provided to purchasers in the position of appellee by the legislature when it adopted the U.C.C. These remedies cannot be extinguished by the inclusion of an integration clause in a contract which contains invalid provisions.

The fourth error which appellant attributes to the trial court is its failure to find the manufacturer, Curbmaster, directly and solely liable to appellee. Appellant contends that there is no justification for imposing liability on it since its role was limited to a mere seller or conduit in the marketplace for Curbmaster. We disagree.

Appellant cites Klages v. General Ordnance Equipment Co., 240 Pa.Super. 356, 367 A.2d 304 (1976), and Walasavage v. Marinelli, 334 Pa.Super. 396, 483 A.2d 509 (1984), in support of its theory that a seller cannot be held liable for breach of contract or warranty in the sale of defective goods when the manufacturer is a party to the action. Appellant misstates the law. In both Klages and Walasavage, suit was brought against the seller and the manufacturer of a defective product which caused personal injuries to a consumer. In both cases, the seller was merely a “conduit” in the transaction between the purchaser and the manufacturer. We held that the seller’s status as a mere conduit did not relieve it of liability to the purchaser but did entitle it to indemnification from the manufacturer, since the manufacturer was primarily responsible for the defective product.

In the present action, the trial court found that PCEC was a mere “conduit” in the transaction resulting in the sale of the paver to appellee. Our rulings in Klages and Walasavage do not relieve PCEC of liability to Moscatiello but entitle it to indemnification from Curbmaster, which primarily was responsible for the defective condition of the machine. Accordingly, we find that the trial court correctly ruled that PCEC was liable to Moscatiello for breach of contract and warranties.

Finally, appellant states that upon entry of the trial court’s order granting it indemnification from Curbmaster, it filed an assessment of costs against Curbmaster and praeciped for a hearing to determine attorneys’ fees. The trial court declined to rule on PCEC’s request for fees and costs in light of the filing of the notice of appeal. Appellant now requests that we remand the matter for a determination of attorneys’ fees and costs. We grant appellant’s request and remand to the trial court for a determination of attorneys’ fees and costs.

Judgment affirmed; appellant’s request for assessment of attorneys’ fees and costs remanded to the trial court; jurisdiction relinquished.

      . Curbmaster also filed a timely appeal from the order of August 21, 1990, which was docketed at No. 1556 Pittsburgh 1990.

      . While it is true that the location of a disclaimer on the reverse side of a contract alone does not render the disclaimer inconspicuous, the disclaimer itself must be conspicuous and the front of the document must contain noticeable reference to the terms on the reverse side. Jaskey Finance and Leasing v. Display Data Corp., 564 F.Supp. 160 (E.D.Pa.1983).

      . Even in commercial contracts between merchants, courts have recognized that the signer may be theoretically and technically a merchant but functionally a consumer in terms of education, business acumen and experience. The operative factors are the legal expertise of the parties and/or their conscious awareness of the burdens assumed. See Johnson v. Mobil Oil Corp., 415 F.Supp. 264 (E.D.Mich.1976).

      . We affirmed the trial court's order of August 21, 1990, granting PCEC the right of indemnification from Curbmaster, Inc. in Moscatiello v. Pittsburgh Contractors Equipment Co., 407 Pa.Super. 378, 595 A.2d 1198 (1991).


text:
    595 A.2d 1198
    Franco MOSCATIELLO i/a, t/d/b/a Moscatiello Construction Company v. PITTSBURGH CONTRACTORS EQUIPMENT COMPANY, a Subsidiary of Tri-State Machinery Distributors, Inc. v. CURBMASTER, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued April 25, 1991.
    Filed July 30, 1991.
    Reargument Denied Sept. 20, 1991.

      David G. Klaber, Pittsburgh, for appellant.
    Alan Berman, Pittsburgh, for appellee Moscatiello.
    Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.
   HESTER, Judge:

Curbmaster, Inc. appeals from the judgment entered on the August 21,1990 order of the Allegheny County Court of Common Pleas which denied appellant’s post-trial motions and awarded appellee, Pittsburgh Contractors Equipment Co. (“PCEC”), the right to indemnification from appellant. Appellant raises numerous allegations of trial court error. We remand on the issue of set-off of damages, but in all other respects, we affirm.

The action underlying this appeal was a breach of contract suit which appellee, Franco Moscatiello i/a, t/d/b/a Moscatiello Construction Company (“Moscatiello”), filed against PCEC to recover damages incurred from the purchase of a defective concrete spreading machine (“paver”). The paver was sold by PCEC and manufactured by Curb-master for use by Moscatiello in the reconstruction of a road in Pittsburgh.

On or about May 19, 1987, Moscatiello and PCEC entered into a contract for the purchase of a Curbmaster concrete spreader machine for a total price of $85,125.42. Approximately one month before the contract was executed, Franco Moscatiello and his superintendent, Jay Palino, met with the vice president of PCEC to discuss the purchase of the paving machine. At the time of the meeting, PCEC was aware that Moscatiello had been awarded a contract by the Pennsylvania Department of Transportation (“PennDot”) to reconstruct a road and that PennDot required that the concrete surface of the road be laid by a certain type of paving machine.

Appellant also participated in these preliminary discussions. The vice president of Curbmaster had a telephone conversation with PCEC and Moscatiello in which he suggested that either of two machines manufactured by Curb-master would be suitable for the PennDot job. Reproduced Record (“R.R.”) at 92-93a, 340-41a, 432a, 492a.

The purchase agreement executed by Moscatiello and PCEC stated on the reverse side that no warranties were offered on equipment sold and that any implied warranties were excluded in favor of the manufacturer’s offer of warranties. The contract also contained a provision which limited the buyer’s remedy solely to return of the purchase price, less wear and use of the machine. In addition, all consequential and incidental damages were expressly excluded. Moscatiello had no previous dealings with PCEC and was not on notice that the sales agreement relinquished warranties and limited damages.

In order to obtain the paver for Moscatiello, PCEC entered into a second sales agreement (the “Curbmaster contract”) with the manufacturer of the machine, Curbmaster. Pursuant to the Curbmaster contract, Curbmaster agreed to manufacture the paver and sell it to PCEC for $68,-693.42. Curbmaster also warranted that the product would be free from defects in material and workmanship under normal use and service for ninety days. The warranty specifically and expressly disclaimed all other warranties, express, implied or statutory, including warranties of merchantability and fitness. It limited the buyer’s remedies to repair, replacement, or return of the purchase price, and excluded liability for all consequential damages.

The trial court found, however, that the Curbmaster warranty agreement was a different document than the sales agreement. The testimony at trial established that the warranty agreement typically is found as an attachment to the Curbmaster owners and parts manual. No witness could establish with certainty that the warranty agreement ever reached either PCEC or Moscatiello.

The paver was manufactured by Curbmaster at its plant in Iowa and shipped to Pittsburgh, arriving at Moscatiello’s job site on June 15, 1987. A Curbmaster employee was present when the paver arrived, assisted Moscatiello employees in assembling it, instructed Moscatiello employees on how to operate the machine, and was present when the machine was used for the first time.

According to the testimony of four witnesses during the trial, from the time that the machine first was used in June, 1987, to on or about November 12, 1987, when it was used last, it failed to lay concrete evenly. Furthermore, the product which resulted was unacceptable to PennDot. Throughout the five-month period of the paver’s operation, Moscatiello made numerous complaints to PCEC about the paver’s failure to produce an acceptable product. During this period, PCEC and Curbmaster unsuccessfully attempted numerous times to remedy the defects in the machine. The machine finally was returned to Curbmaster in December, 1987. As a result of the failure of the paver to perform its functions properly, Moscatiello incurred increased labor costs in order to produce a product acceptable to PennDot.

On February 8, 1988, Moscatiello filed a complaint against PCEC asserting breach of contract, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. PCEC joined Curbmaster as an additional defendant, asserting breach of express warranty, breach of implied warranties of merchantability and fitness for a particular purpose, and negligence. By agreement of the parties, PCEC dismissed its negligence claim against Curbmaster and amended its complaint to add a claim against Curbmaster for breach of contract.

Following a bench trial, the trial court issued an opinion and order dated March 14, 1990, awarding $146,811.43 in damages plus interest to Moscatiello and against PCEC and Curbmaster jointly. Both PCEC and Curbmaster filed timely post-trial motions for relief, and on August 21, 1990, the trial court issued an opinion and order denying Curbmaster’s post-trial motions and granting PCEC’s post-trial motion only insofar as it related to PCEC’s right of indemnification from Curbmaster. Curbmaster filed this timely appeal from the trial court’s order of August 21, 1990.

Curbmaster first argues that the trial court erroneously based its grant of indemnification to PCEC upon a principle of tort rather than contract law. Curbmaster asserts that the “mere conduit” theory whereby the manufacturer of defective goods must indemnify the seller acting as a mere conduit between the consumer and the manufacturer applies only to tort actions for personal injury or property damage and not to complaints, such as the instant action, alleging economic losses resulting from a breach of contract.

In granting PCEC the right of indemnification from Curb-master, the trial court relied upon several landmark cases in this area of law, including Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1960), Spagnol Enterprises, Inc. v. Digital Equipment Corp., 390 Pa.Super. 372, 568 A.2d 948 (1989), Walasavage v. Marinelli, 334 Pa.Super. 396, 483 A.2d 509 (1984), and Klages v. General Ordnance Equipment Corp., 240 Pa.Super. 356, 367 A.2d 304 (1976). The trial court’s ruling undoubtedly is correct and we are baffled by Curbmaster’s failure to acknowledge the current state of the law on this issue.

In Kassab v. Central Soya, supra, our Supreme Court first enunciated the rule in Pennsylvania that a manufacturer may be held liable in a breach of warranty suit for damages sustained by a consumer as a result of the purchase of a defective product, even in the absence of privity of contract between the manufacturer and the consumer. The plaintiffs in Kassab filed suit against the seller and the manufacturer of cattle feed for damages they sustained when tainted feed caused abortions and sterility in their cattle. The court held that the defect in the feed constituted a clear breach of the implied warranty of fitness for a particular purpose and that the lack of privity between the plaintiffs and the manufacturer would not insulate the manufacturer from liability for breach of warranty.

Though the loss sustained by the plaintiffs in Kassab was described by the court as property damage, we have stated subsequently that it was clear that the holding in Kassab was “intended to apply to all breach of warranty cases brought under the warranty provisions of the Uniform Commercial Code for all types of damages, whether they be personal injuries, damage to property or economic loss.” Spagnol Enterprises, Inc. v. Digital Equipment Corp., supra, 390 Pa.Super. at 380, 568 A.2d at 952.

In Spagnol, relying on Kassab, we upheld the award of economic damages to a purchaser of computer equipment who sued the manufacturer of the defective equipment for breach of an implied warranty of fitness for a particular purpose. In response to the manufacturer’s argument that there were no Pennsylvania cases which have extended warranty to persons who sustained neither personal injury nor damage to property other than the warranted property, we stated:

[W]e interpret Kassab to allow the award of damages to a plaintiff where injury has been incurred as the result of a defectively manufactured product which in turn results in a needless expenditure of monies in attempting to make the defective product operational and functional so as to be productive in a ‘business sense.’ To hold otherwise would be to permit a manufacturer to place a product in the stream of the market and plead no liability when the instrument does not conform to the buyer’s needs which were known by the manufacturer at the time the item was sold.

Spagnol Enterprises, Inc. v. Digital Equipment Corp., supra, 390 Pa.Super. at 380-81, 568 A.2d at 952.

In addition to permitting the consumer to recover economic losses from sellers and manufacturers of defective products in breach of warranty actions, we have utilized the “mere conduit” theory to entitle mere sellers of products that injure consumers to indemnity from the manufacturer of the product on the grounds that the relative culpability of the seller pales in comparison to that of the manufacturer. See Walasavage v. Marinelli, supra (plaintiff killed by defect in tailgate); Klages v. General Ordnance Equipment Corp., supra (plaintiff shot in head when product malfunctioned).

Curbmaster relies upon cases that are inapplicable to support its argument that the “mere conduit” theory provides no basis for the imposition of liability upon a manufacturer in a suit for economic losses. In REM Coal Co. v. Clark Equipment, 386 Pa.Super. 401, 563 A.2d 128 (1989), for example, we held that purely economic losses cannot be recovered where the plaintiff’s action sounded solely in negligence or strict liability. Our decision in REM is inapplicable in that the complaints filed both by Moscatiello and PCEC against Curbmaster were premised upon breach of contract and breach of implied warranties of merchantability and fitness for a particular purpose. The plaintiffs in REM and the remainder of the cases cited by Curbmaster sought recovery in tort rather than contract law.

As we stated previously, the right of a consumer to recover economic losses from a manufacturer of a defective product in a breach of warranty action is well-established in Pennsylvania. Kassab v. Central Soya, supra; Spagnol Enterprises, Inc. v. Digital Equipment Corp., supra. Similarly, through the application of the “mere conduit” theory, we have established the right of a seller to indemnification from the manufacturer of a defective product. Walasavage v. Marinelli, supra; Klages v. General Ordnance Equipment Corp., supra. Thus, the trial court’s grant of indemnification to PCEC from Curbmaster is sound and thoroughly supported by precedent. Curbmaster’s assertions to the contrary, in view of the clarity of our decisions on this issue, unquestionably are erroneous.

Curbmaster next argues that the trial court erred by failing to give effect to various provisions of its warranty agreement which would operate either to bar recovery of any amount by PCEC or to limit Curbmaster’s liability to the purchase price paid by PCEC for the paver. PCEC responds that the trial court’s failure to apply Curbmaster’s warranty agreement was harmless since the warranty exclusions were ineffective. We agree.

Curbmaster’s conclusion that its warranty agreement applies to PCEC is based upon the lack of a finding by the trial court that the warranty disclaimer, limitation of remedies, or limitation of damages contained in the warranty agreement was inconspicuous or unconscionable. While we agree that the record supports Curbmaster’s claims regarding the effectiveness of those provisions of the warranty agreement, we find the contents of the warranty agreement to be inapplicable to the terms of the sales contract between PCEC and Curbmaster.

First, the testimony at trial established that the sales contract between PCEC and Curbmaster did not contain and actually made no reference to the warranty agreement. In fact, the evidence established that the warranty agreement was a separate document which was attached to Curbmaster’s owner’s and parts manual. Curbmaster typically delivers its manual to its customers several days after the sales agreement is signed.

Thus, this is not the typical sales contract which contains language which may or may not provide sufficient notice to the customer of the relinquishment of valuable consumer rights. If the warranty agreement is not part of the sales contract and there is no reference to the existence of the warranty provisions, the customer when signing the sales contract obviously has not agreed to accept them and is not bound by them.

Furthermore, the trial court found that the warranty agreement which supposedly accompanied Curbmaster’s owner’s and parts manual never was delivered to the buyer of the paver. In addition, although the trial court did not make an express finding to this effect, there also is some doubt whether the warranty agreement ever arrived in the possession of the seller, PCEC. The testimony established only that Curbmaster managed to deliver its owner’s and parts manual to PCEC. Whether the warranty information accompanied the owner’s and parts manual when it was delivered to PCEC is not clear. Thus, even if the warranty agreement were to be incorporated into the sales agreement in some fashion, Curbmaster did not establish that PCEC ever had the opportunity to read it.

Curbmaster argues that even if PCEC did not receive the Curbmaster warranty agreement, the evidence established that PCEC was aware of the existence of a warranty, and that a warranty does not have to be received to be effective. However, our review of the record reveals that there is no evidence that PCEC was aware of the provisions of the warranty agreement which disclaimed numerous warranties and severely limited the buyer’s damages and remedies. Under these circumstances, we have no doubt that the trial court properly ruled that in spite of the existence of Curb-master’s warranty agreement, PCEC was entitled to receive indemnification from Curbmaster for the damages it was ordered to pay to Moscatiello as a result of PCEC’s purchase of a defective product from Curbmaster.

Curbmaster next contends that the trial court erred when it found Curbmaster directly liable to Moscatiello. Curbmaster argues that it cannot be found directly liable to Moscatiello because its joinder was improper, and privity of contract between Curbmaster and Moscatiello was not established. PCEC responds that Curbmaster properly was joined as an additional defendant, since the facts support a conclusion that Curbmaster is liable solely to Moscatiello for breach of the implied warranties of merchantability and fitness for a particular purpose. Furthermore, PCEC contends that privity of contract between a buyer and manufacturer no longer operates in Pennsylvania as a bar to recovery by the buyer. We concur with PCEC on both propositions.

Pa.R.C.P. 2255(d) provides the following:
The plaintiff shall recover from an additional defendant found liable to him alone or jointly with the defendant as though such additional defendant had been joined as a defendant and duly served and the initial pleading of the plaintiff had averred such liability.

In Sheriff v. Eisele, 381 Pa. 33, 35, 112 A.2d 165, 166 (1955), the Supreme Court held that when an additional defendant is joined pursuant to Rule 2255(d), he immediately becomes subject to the plaintiffs claim in every respect and with the same force and effect “as if he had been originally been named as a defendant, and even without the necessity of any pleading being filed by the plaintiff against him.” More recently, citing the Supreme Court’s decision in Sheriff v. Eisele, supra, the Commonwealth Court stated in Richards v. Alston, 123 Pa.Cmwlth. 95, 553 A.2d 488, 490-91 (1989):

Under Pa.R.C.P. 2255(d), a plaintiff, even though he or she may have asserted no claim against an additional defendant in a pleading against it, may recover directly from an additional defendant as from an original defendant when the facts established at trial show that the additional defendant is liable to him or her either solely or jointly or severally with the original defendant.

As we stated previously at length, it is now well-established in Pennsylvania that a manufacturer may be held directly liable in a breach of warranty action in which a consumer sues the party who sold him the defective product. See Kassab v. Central Soya, supra; Spagnol Enterprises, Inc. v. Digital Equipment Corp., supra. It is of no consequence that there were two contracts involved in this action and that neither Moscatiello nor PCEC alleged that Curbmaster was liable to Moscatiello, as Curbmaster argues. The sole issue is whether the facts at trial established that Curbmaster was liable to Moscatiello solely, jointly, or severally. We conclude that the facts did so establish, and therefore, we find no error in the trial court’s ruling that the joinder of Curbmaster was proper.

Turning to the second portion of Curbmaster’s argument regarding direct liability, we reiterate our previous conclusion that the absence of privity does not operate as a bar to recovery by a consumer who seeks economic damages in a suit against a manufacturer for breach of warranty. Curbmaster raised this issue previously in its first argument regarding indemnification. This time, however, Curbmaster contends that the lack of privity between Moscatiello and Curbmaster bars recovery from Curbmaster of economic damages. Curbmaster’s contention clearly is erroneous.

As the trial court correctly observed, “it is [u]ncontroverted that both horizontal privity, determinative of who may sue, and vertical privity, determinative] of who may be

sued, no longer operates in this Commonwealth. The law in Pennsylvania is clear that, for recovery for breach of implied warranties, a party need not prove ‘privity of contract.’ Williams v. West Penn Power Co., 502 Pa. 557, 467 A.2d 811 (1983); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1960).” Trial court opinion at 8. Moreover, the fact that the plaintiff herein sued for economic losses is of no import. We stated in Spagnol Enterprises, Inc. v. Digital Equipment Corp., supra, that the ruling in Kassab applies to all breach of warranty cases brought under the warranty provisions of the U.C.C. and to all types of damages sought, including personal injury, property damage, or economic loss. Thus, we find no error in the trial court’s finding of direct liability between Curbmaster and Moscatiello.

Curbmaster’s next allegation of trial court error involves the application of the terms of its warranty agreement to Moscatiello. Curbmaster contends that if Moscatiello can maintain a contract action against Curbmaster, then the terms of the Curbmaster warranty should apply to bar Moscatiello from recovering damages against Curbmaster. The trial court found that the warranty exclusions were inapplicable to Moscatiello according to the express language of the agreement and due to the failure of Curb-master to establish that Moscatiello ever received the agreement. We concur with the trial court’s findings.

The first sentence of Curbmaster’s warranty agreement states the following:

CURBMASTER OF AMERICA, INC, warrants, to the original purchaser, all new machines and- equipment manufactured by Curbmaster of America, Inc. to be free from defects in material and workmanship under normal use and service.

R.R. at 705a (emphasis added). The trial court stated that it was undisputed that PCEC rather than Moscatiello was the “original purchaser” of the paver. In support of its conclusion, the court referred to a memorandum sent by Curbmaster to PCEC after the sale of the machine in which Curbmaster informed PCEC that it was the “original purchaser”. Since Moscatiello clearly was not the original purchaser, the court found that the provisions of the warranty agreement did not apply to it.

Moreover, the trial court found that Curbmaster failed to forward the warranty agreement to Moscatiello. In view of this additional finding, the court determined that the warranty agreement could not operate as a bar to Moscatiello’s action for breach of warranties.

We find the trial court’s reasoning to be sound, and consequently, we concur with its ruling. The warranty agreement speaks for itself. By its own terms, it clearly does not apply to Moscatiello. Indeed, even if the language were ambiguous, the fact that the agreement never was provided to Moscatiello, in our view, renders its provisions inapplicable to Moscatiello.

In its final argument, Curbmaster asserts that the trial court’s award of damages to Moscatiello was contrary to the weight of the evidence and ignored evidence that Moscatiello abused the paver and did not seasonably reject it. Moscatiello responds that the evidence clearly established that it properly rejected the paver or revoked its acceptance of it. Further, Moscatiello contends that Curbmaster failed to establish that the damages Moscatiello allegedly caused were present when the paver was returned to Curbmaster’s plant in Iowa.

Curbmaster first argues that Moscatiello’s failure to effectively reject or revoke its acceptance of the paver bars it from recovering damages. The trial court found no merit in this argument by Curbmaster, and we concur.

Section 2602 of the U.C.C. provides that rejection of goods must be “within a reasonable time after their delivery.” 13 Pa.C.S.A. § 2602(a). Similarly, a buyer must revoke acceptance of goods within a reasonable time after he “discovers or should have discovered the ground for it.” 13 Pa.C.S.A. § 2608. Comment 4 to section 2608 is instructive as to what constitutes “reasonable” time.

Since this remedy [revocation of acceptance] will be generally resorted to only after attempts at adjustment have failed, the reasonable time period should extend in most cases beyond the time in which notification of breach must be given, beyond the time for discovery of nonconformity after acceptance and beyond the time for rejection after tender.

The trial court found that Moscatiello promptly notified PCEC and Curbmaster that the machine it accepted with latent defects was not operating properly. We agree. The evidence at trial undeniably established that representatives of Curbmaster and PCEC were notified of a defect in the paver when it arrived in Pittsburgh, as they were present to observe the problem firsthand. On four subsequent dates, including one in July, 1987, Curbmaster and PCEC representatives traveled to the construction site in an attempt to correct the persistent problems Moscatiello experienced with the paver. Their response to Moscatiello’s complaints, as the trial court stated, “encouraged Moscatiello to continue to use the machine under the impression that it would continue to pave properly when fixed.” Trial court opinion at 4.

In light of the frequency with which Curbmaster representatives observed the defects in the machine, it is nothing short of a misrepresentation for Curbmaster to state that Moscatiello failed seasonably to notify Curbmaster of the defects in the machine. The record amply demonstrates that Curbmaster received repeated notification of defects in its paver within a reasonable time of their discovery. We find no error, therefore, in the trial court’s conclusion that Moscatiello properly rejected the paver.

Finally, Curbmaster argues that the damage award must be reduced to reflect the damage caused to the machine by Moscatiello. Curbmaster contends that the paver left the Curbmaster plant in perfect condition and returned with $2,408.14 worth of damage to its engine and $14,617.55 worth of damage to its body. The trial court’s award for damages reflected a reduction for damages to the engine but failed to do so with respect to the alleged damages to the body.

The issues of whether damages to the body of the machine occurred while in the possession of the purchaser and of the extent of those damages are in dispute. We cannot resolve this factual dispute and therefore cannot render an opinion on the issue of the set-off of damages raised by Curbmaster. We remand to the trial court for a determination of whether Moscatiello caused damages to the body of the machine unrelated to the manufacturer’s defects, the amount of damages, if any, which were caused by Moscatiello, and whether Curbmaster is legally entitled to a set-off in the amount of damages awarded by the trial court to Moscatiello.

Judgment affirmed in part and case remanded for a determination on the issue of the set-off in damages. Jurisdiction relinquished.

      . PCEC also filed a timely appeal to the order of August 21, 1990, which was docketed at No. 1557 Pittsburgh, 1990.