author: TAMILIA, Judge:

text:
    601 A.2d 816
    COMMONWEALTH of Pennsylvania v. Jerry Lee PHILLIPS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 19, 1991.
    Filed Jan. 7, 1992.

      Carmela R.M. Presogna, Asst. Public Defender, Erie, for appellant.
    Joseph P. Conti, Asst. Dist. Atty., Erie, for Com., appel-lee.
    Before BECK, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

On June 28, 1990, appellant, Jerry Lee Phillips, was sentenced to fifteen (15) to thirty (30) years imprisonment as a consequence of a jury finding him guilty of robbery, criminal conspiracy to commit robbery and aggravated assault. The charges stemmed from an incident wherein appellant and Anthony Phillips, his brother and co-conspirator, beat and robbed the victim, Norman Musset, and escaped in a car driven by Leander Speed.

On appeal Phillips alleges the court erred by: 1) denying his motion for directed verdict on criminal conspiracy; 2) allowing discriminatory jury selection; 3) denying appellant’s request for a Kloiber charge; 4) failing to instruct on accomplice liability; and 5) imposing a manifestly excessive and unreasonable sentence. Appellant also argues trial counsel was ineffective for failing to challenge the alleged discriminatory aspects of jury selection, failing to preserve for appeal the discretionary aspects of his sentence and failing to produce alibi witnesses.

Appellant contends because co-conspirator Anthony Phillips was previously acquitted on the charge of conspiracy, he was entitled to a directed verdict on the charge of conspiracy, and relies on Commonwealth v. Campbell, 257 Pa.Super. 160, 390 A.2d 761 (1978), affirmed per curiam, 484 Pa. 387, 399 A.2d 130 (1979), in support of this averment. Campbell held where a conspiracy indictment against a defendant names only one other person as a co-conspirator and that person was acquitted prior to defendant’s trial, defendant may not be convicted of conspiracy. Id. In 1980, however, our Supreme Court found a valid conviction for conspiracy will not be disturbed by a subsequent acquittal at separate trials of all alleged conspirators. Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980). It remains for this Court to decide whether Byrd impliedly overrules Campbell and is applicable to this case where the co-conspirator was acquitted before appellant came to trial.

In his Opinion, Justice Roberts discusses at great length well-established principles in the areas of accomplice and conspiratorial liability. The origin of the law in Campbell, he reasons, is from a time when co-conspirators were tried jointly and a jury could not logically find the evidence proved conspiracy involving only one of the defendants being tried. This acquittal rule, however, loses much of its force when faced with alleged co-conspirators who are tried separately before completely different jurors and, conceivably, different evidence. Justice Roberts draws an analogy between the co-conspirator action before the Court and the law on accomplice liability, which allows prosecution for accomplice liability although the person who is claimed to have committed the crime was acquitted, and states to do otherwise would conceivably compound an erroneous or irrational acquittal rather than promote the Commonwealth policy of protecting the public interest. See Commonwealth v. Brown, 473 Pa. 458, 375 A.2d 331 (1977). In a Byrd footnote Justice Roberts addresses Campbell as follows:

6. The issue in Brown was presented as one of collateral estoppel and our decision was to the effect that such a principle did not preclude subsequent prosecution of an alleged accomplice after acquittal of other co-defendants. The present appellant was tried and convicted before his co-conspirator’s acquittal and thus no claim of estoppel is asserted here. Yet this in no way suggests that Brown is inapposite. Rather the permissibility of trying a defendant after a co-defendant has already been acquitted on similar charges presents, if anything, a more difficult question. We note that although alleged principal Smith was acquitted of all charges at his subsequent trial, appellant does not challenge his own convictions of robbery or murder on this basis.
We have not ignored our per curiam affirmance of the Superior Court’s decision in Commonwealth v. Campbell, 257 Pa.Super. 160, 390 A.2d 761 (1978), aff’d, 484 Pa. 387, 399 A.2d 130 (1979), which refused to uphold the conviction of one conspirator where his only alleged co-conspirator had been previously acquitted. Although today’s decision casts doubt on Campbell, we need not and hence do not now accept the Commonwealth’s invitation to reconsider that decision.

Byrd, supra, 490 Pa. at 555 n. 6, 417 A.2d at 178-79 n. 6. We are convinced, based on the reasoning by Justice Roberts, had the Byrd Court chosen to address the issue presently before this Court our Supreme Court would have found appellant is entitled to no relief. It stands to reason if a subsequent acquittal of one co-conspirator does not disturb a prior conviction of his co-conspirator, a prior acquittal of a co-conspirator does not automatically afford relief to the defendant/co-conspirator yet to be tried. We hold, therefore, the prior acquittal of a sole co-conspirator in a separate trial does not preclude finding the subsequently tried co-conspirator guilty of conspiracy. Accordingly, we find the trial court did not abuse its discretion by denying appellant’s motion for a directed verdict on the charge of criminal conspiracy.

Next, appellant argues the Commonwealth failed to provide a sufficient explanation for using a peremptory challenge to strike a black person from the venire, and the court erred by failing to conduct a full evidentiary hearing to determine whether the challenge was racially motivated. Appellant notes he is black and the victim is white.

An appellate court will reverse a trial court’s finding of no discrimination in the jury selection process only if that finding is clearly erroneous. Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989), alloc. denied, 525 Pa. 631, 578 A.2d 926 (1990). The primary function of a peremptory challenge is to allow parties to strike prospective jurors whom they have good reason to believe might be biased but who are not so clearly and obviously partial they could otherwise be excluded from the panel. Id. In assessing the legitimacy of a peremptory challenge and the reasonableness of the prosecutor’s explanation the trial court must view the totality of the circumstances. Commonwealth v. Weaver, 390 Pa.Super. 434, 568 A.2d 1252 (1989). Where the defense makes a prima facie case that a prosecutor has exercised a peremptory challenge for racially discriminatory purposes, the burden shifts to the prosecutor to submit a neutral explanation for the use of the challenge. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). A prima facie case of racially discriminatory jury selection has three elements: 1) the defendant’s membership in a cognizable racial group; 2) the prosecutor’s use of peremptory strikes to exclude a member of that group; and 3) an inference arising that the prosecutor used strikes to exclude venire persons on account of race. Weaver, supra.

The trial court found, based on the totality of the circumstances, the defense established a prima facie showing of discrimination, and conducted a hearing in its chambers wherein the burden was placed on the Commonwealth to establish its use of a peremptory strike to remove the only black person available for jury duty was not racially motivated. Although this Court does not agree with the trial court’s finding the defense established a prima facie case of discrimination, our disagreement is immaterial in that we find the Commonwealth successfully justified its decision to strike, the sole black prospective juror. When defense counsel objected to the prosecution’s challenge, the Commonwealth explained the challenge was not exercised for racial considerations but on the basis of the venire person’s occupation as a drug counselor and her possible liberal bias and tolerance toward the offenses committed by appellant, as well as a counselor’s inclination to accept representations or explanations made by individuals with whom they deal (N.T., 5/21/90, p. 2). The court accepted the Commonwealth’s explanation as a good faith reason and added it had had, on prior occasions, many opportunities to observe this particular prosecutor and had never observed “the slightest hint of discriminatory behavior nor, of course, would we have permitted it.” (Slip Op., Fischer, J., 7/11/ 90, p. 2.)

Based on the totality of the circumstances we find all appellant’s arguments attacking the Commonwealth’s use of a peremptory challenge to strike the only black venire person devoid of merit.

Appellant’s next argument contends the court erred by denying his request for a cautionary charge in accordance with Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); Pa.SSJI (Crim) 407.1 Identification testimony. The Kloiber instruction “is appropriate where the witness was not in a position to clearly observe the assailant or the identification is weakened by witness’s failure to identify the defendant on one or more occasions.” Id.; Commonwealth v. Lee, 401 Pa.Super. 591, 585 A.2d 1084 (1991). The facts reveal the victim was attacked by appellant and his brother in the victim’s well-lit kitchen. The victim testified he was within two to three feet of appellant and his brother at all times, and the assailants had nothing covering their faces. The victim contends he had an unobstructed view of his assailants for three to five minutes before his glasses were removed and he was pistol whipped on his head. Although in his statement to the police given shortly after this ferocious beating the victim gave only a sketchy description of his assailants and, concededly, doubted his ability to identify them at a future date, when confronted with the defendants at the preliminary hearing, appellant unequivocally identified each defendant and his role in the attack. At trial the victim also positively identified the appellant as one of his attackers. We agree with the trial court’s finding the circumstances surrounding the victim’s identification of the appellant did not warrant a Kloiber instruction. The victim’s identification of his assailants was strong and sure. He had ample time to observe them in a well-lit room. The victim’s inability to provide a detailed description of his attackers immediately following a severe beating is of no consequence. Appellant’s argument the court erred by denying his charge for a Kloiber instruction is without merit.

Phillips’ fourth argument on appeal alleges the court erred and abused its discretion by refusing his request for an accomplice charge with respect to Leander Speed. Testimony presented indicated Speed accompanied the brothers to the victim’s house, waited in the car for them to return and then fled the scene. Appellant argues this evidence gives rise to an inference Speed was an accomplice and, accordingly, the jury should have been instructed to receive the testimony with caution.

An accomplice charge or instruction is warranted when the evidence produced at trial either requires or permits a reasonable inference the witness participated in the crime charged. Commonwealth v. Franklin, 397 Pa.Super. 265, 580 A.2d 25 (1990). An accomplice charge is not warranted if evidence indicates witness was unaware a crime was underway and did not actually participate in the crime as it was occurring. Id. An accessory after the fact is not an accomplice for purposes of the accomplice jury instruction. Commonwealth v. Richey, 249 Pa.Super. 365, 378 A.2d 338 (1977). In essence, an accomplice instruction is only warranted when the evidence shows the witness was an active partner in the intent to commit the crime. Commonwealth v. Brady, 385 Pa.Super. 279, 560 A.2d 802 (1989).

Speed had been charged as a co-conspirator but entered a plea bargain pleading guilty to receiving stolen property and conspiring to receive stolen property. After entering his plea, Speed cooperated with and testified on behalf of the Commonwealth. Speed testified he had been acquainted with appellant and his brother approximately four to five weeks prior to the evening Norman Musset was attacked in his home. On that night, after meeting the Phillips’ brothers at a local bar, the three men began “riding around” in Speed’s Chevrolet Vega with Speed at the wheel (N.T., 5/22/90, pp. 59-60). As they drove around town, the trio discussed going to a friend’s house to secure some money to buy beer. The discussion was initiated by Anthony Phillips who instructed Speed where to pull over and park. At that point appellant and his brother exited the car and Speed fell asleep, due largely to the facts he had arisen at 6:30 a.m., worked most of the day and had recently consumed alcohol. Speed testified he was unaware of the brothers’ nefarious and criminal actions until such time as the brothers returned to the car screaming at Speed to drive away quickly. In his haste to leave the scene Speed struck a parked car then drove the brothers to appellant’s girl friend’s house, observed the brothers emptying the bank stolen from the victim’s residence and again fell asleep. Speed contends he did not share in the stolen money. Three days later Speed was contacted by the police concerning the hit and run and thereafter cooperated with the police in connection with this investigation.

We agree with the trial court’s finding Speed had no prior knowledge the appellant was planning to commit a robbery and did not voluntarily and knowingly cooperate with appellant and his brother to commit the crime. At best, Speed’s involvement in the crime was that of an accessory after the fact not warranting a charge on accomplice liability. See Richey, supra. Under the facts presented, we hold the trial court did not err by denying appellant’s request for an accomplice instruction.

Appellant’s next argument alleges the court abused its discretion by imposing a manifestly excessive and unreasonable sentence which fell beyond the aggravated range of the sentencing guidelines. This Court has consistently held only issues specifically raised in post-verdict motions will be preserved for appeal. Hreha v. Benscoter, 381 Pa.Super. 556, 554 A.2d 525 (1989), alloc. denied, 524 Pa. 608, 569 A.2d 1367 (1989). Those issues raised for the first time in appellate briefs will not be considered. Id. Where a defendant is ordered to file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and fails to raise a particular matter within that statement, the defendant is deemed to have waived that point of error on appeal. Commonwealth v. Warren, 332 Pa.Super. 410, 481 A.2d 681 (1984); Pa.R.A.P. 1925(b). The inclusion of claims regarding sentencing are especially important since the court’s reasoning regarding the sentence must be reviewed by the appellate court. See Commonwealth v. Mueller, 341 Pa.Super. 273, 491 A.2d 258 (1985). The failure to preserve an issue on appeal will be excused only when a strong public interest outweighs the need to protect the judicial system from improperly preserved issues. Klein v. Employees’ Retirement System, 521 Pa. 330, 555 A.2d 1216 (1989).

In the case before us appellant failed to set forth any claims regarding the propriety of the sentence imposed in either his post-trial motions or his 1925(b) statement. Therefore, we dismiss this issue without further discussion.

Appellant’s final argument on appeal alleges trial counsel was ineffective for failing to challenge the Commonwealth’s use of a peremptory strike to eliminate the only black venire person, failing to preserve for appeal the issue of a manifestly excessive sentence and failing to produce alibi witnesses.

In deciding whether trial counsel was ineffective we first must determine whether the underlying claim has merit. If not, our inquiry ceases as counsel will not be deemed ineffective for failing to pursue an issue devoid of merit. If, however, the claim possesses merit, we must determine whether counsel’s course of action had a reasonable basis designed to effectuate his client’s interest. Lastly, appellant must demonstrate how counsel’s actions prejudiced him. Commonwealth v. Tressler, 526 Pa. 139, 584 A.2d 930 (1990); Commonwealth v. McConnell, 404 Pa.Super. 439, 591 A.2d 288 (1991), reargument denied, June 21, 1991.

Along with his allegation counsel was ineffective for failing to challenge the Commonwealth’s peremptory strike, appellant argues counsel erred by failing to ensure the voir dire proceedings were recorded so as to create a record subject to review, and by failing to insist on a full evidentia-ry hearing on the issue of discrimination in the jury selection process.

As the record reflects, counsel did object to the Commonwealth’s peremptory strike and, therefore, appellant’s first allegation will be dismissed without further discussion. With regard to the other two issues we find trial counsel’s actions were designed to effectuate her client’s best interests and provide a fair and impartial jury. Trial counsel raised a timely objection to the prosecutor’s use of the peremptory challenge and the prosecutor was thereafter required to provide the court with an explanation for his challenge. The record reflects defense counsel vigorously argued the appellant’s position and requested the challenge be set aside (N.T., 5/21/90, pp. 2-4). However, after conducting a full hearing in its chambers, the court determined the prosecution’s challenge was for neutral reasons and was not racially motivated. We find appellant’s ineffectiveness of counsel arguments with regard to the jury selection process to be devoid of merit.

Appellant also argues counsel was ineffective for failing to preserve for this Court’s review the discretionary aspects of his sentence. Appellant contends the court erred when it deviated from the sentencing guidelines without supplying a comprehensive statement of reasons for such deviation. Bearing in mind the three-part test for ineffective assistance of counsel, we must first determine whether the court committed reversible error by deviating from the sentencing guidelines without setting forth specific aggravating factors and sufficient reasons to support the sentence.

Sentencing is a matter within the sound discretion of the trial court and will not be disturbed unless it is outside the statutory limits or manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Gee, 394 Pa.Super. 277, 575 A.2d 628 (1990). When a trial judge deviates from the guidelines, he must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range. Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). Where the statement shows consideration of the defendant’s circumstances, prior criminal record, personal characteristics and rehabilitative potential, and the record indicates the court had the benefit of a presentencing report, an adequate statement of the reasons for the sentence imposed has been given. See Commonwealth v. Fenton, 388 Pa.Super. 538, 566 A.2d 260 (1989), alloc. denied, 525 Pa. 662, 583 A.2d 792 (1990). Our Supreme Court has stated where a presentence report exists, the appellate courts will presume the sentencing court was aware of any and all relevant information contained in the report and weighed those considerations along with all mitigating factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). In considering whether a sentence was manifestly excessive we must give great weight to the sentencing judge’s discretion as he is in the best position to measure various factors such as the nature of the crime, the defendant’s character, and his displays of remorse, defiance or indifference. Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988), alloc. denied, 524 Pa. 616, 571 A.2d 379 (1989).

Appellant was sentenced as follows:

Robbery: 10 to 20 years
Aggravated Assault: 5 to 10 years
Conspiracy: 5 years probation

All sentences were to run consecutively to each other and to the other sentences then being served by appellant for unrelated crimes. The aggravated ranges for the crimes were 76 to 104 months, 12 to 18 months and 12 to 18 months, respectively. In imposing sentence the court considered the presentence report which reflected appellant’s serious adult criminal record dating back to 1977 and including felony offenses. The court also noted appellant had spent nearly all his adult life in confinement, had only recently been released prior to committing this crime and there appeared to be little prospect appellant would change his behavior if allowed to return to the community. The court indicated it had been lenient in the past in dealing with appellant but to no avail. The seriousness of appellant’s crimes and the fact the victim could very easily have been more seriously injured by appellant’s unprovoked attack were also factors considered by the court. The court’s desire and need to protect the community and the court’s intolerance for appellant’s outrageous behavior weighed heavily in the court’s decision to impose a sentence outside the guidelines.

Based on our thorough review of the sentencing transcript we find the court did not abuse its discretion but imposed a sentence which was both reasonable and proper under the circumstances. Accordingly, there is no merit to the claim underlying appellant’s ineffective assistance of counsel argument and, accordingly, the ineffectiveness claim is likewise without merit.

Appellant’s last ineffective assistance of counsel claim contends trial counsel was ineffective by failing to locate, prepare and present three witnesses who would have testified he was playing cards with them the night of the offense and, therefore, could not have been the assailant. Appellant argues he should now be afforded an evidentiary hearing to have counsel explain her reasons for failing to present the witnesses.

In order to successfully set forth a claim of ineffectiveness of counsel for failure to call or investigate a potential witness, an appellant must establish four essential points of information. First, he must identify the alleged witnesses. Second, he must demonstrate defense counsel knew of the existence of those .witnesses prior to the time of trial. Third, he must demonstrate the witnesses would have provided material evidence at the time of trial. And fourth, the appellant must establish the manner in which the witnesses would have been helpful to his case. Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990). Where it is clear that the allegations against defense counsel are baseless or without merit an evidentiary hearing is unnecessary. See Commonwealth v. Egan, 335 Pa.Super. 474, 484 A.2d 802 (1984). Here the record reveals appellant has failed to satisfy the above-mentioned requirements. Appellant has provided no evidence counsel was aware of these witnesses or that they were available to testify. In fact, when given an opportunity to speak on his behalf prior to sentencing, appellant delineated four points of alleged trial error and mishandling of his case by defense counsel but failed to mention the alibi witnesses he now contends counsel ignored. Also, when invited by the court to make a statement specifically addressing his participation in the crime, appellant maintained his innocence but once again forwent the opportunity to mention the alleged witnesses and/or voice his dissatisfaction with counsel’s failure to call those witnesses upon his request. Finally, in light of the overwhelming evidence produced at trial corroborating appellant’s participation in the crimes, not limited to the identification of the appellant by the victim and the testimony of Leander Speed, we find the absence of any such alibi testimony if, in fact, it existed, did not prejudice appellant so as to grant him a new trial. We find appellant’s argument counsel was ineffective for failing to call the alleged alibi witnesses devoid of merit.

Based on the foregoing reasons of law and fact we affirm the June 28, 1990 judgment of sentence of 15 to 30 years imprisonment.

Judgment of sentence affirmed.

BECK, J., concurs in the result.

      . 18 Pa.C.S. § 3701.

      . Id., § 903.

      . Id., § 2702.

      . We note the five-year probation sentence entered for aggravated assault was well below the mitigated guideline range of two to four years imprisonment. Therefore, we will not address this part of appellant’s argument.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    601 A.2d 825
    Richard N. BASH, D.D.S., Appellant, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, Penn Del Directory and Gail Markowski.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1991.
    Filed Jan. 9, 1992.

      David C. Burghen, Doylestown, for appellant.
    Nancy Gellman, Philadelphia, for appellees.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order sustaining appellees’ preliminary objections, which dismissed appellant’s complaints against two parties, Penn Del Directory (Penn Del) and Gail Markowski, and dismissed with prejudice three of his four counts against Bell Telephone Company of Pennsylvania (Bell). On appeal, appellant contends that the trial court improperly sustained appellees’ preliminary objections in the nature of a demurrer. For the following reasons, we quash appellant’s appeal as to the dismissal of his count for punitive damages, and affirm the trial court’s order sustaining appellees’ preliminary objections with respect to the complaint against Penn Del and the other counts against Bell.

On May 13, 1990, appellant entered into a written agreement, allegedly with Bell and Penn Del, for yellow pages directory advertising. On September 25, 1990, appellant learned that the advertisements had not been published. As a result, appellant filed a complaint against Bell, Penn Del and sales representative Gail Markowski on October 26, 1990, in the Court of Common Pleas of Bucks County. In his complaint, appellant stated four counts against the three defendants: (1) breach of contract; (2) negligence; (8) punitive damages; and (4) violation of the Unfair Trade Practices Act, 73 Pa.S.A. § 201-1, et seq. On November 21, 1990, all defendants filed preliminary objections in the nature of a demurrer. Bell’s preliminary objections challenged counts two through four of appellant’s complaint, as well as the language in count two which pleaded damages for emotional distress. Penn Del and Markowski incorporated by reference the preliminary objections of Bell, and additionally demurred on the grounds that Penn Del and Markowski could not be liable to appellant because Bell was their disclosed principal. On December 17, 1990, appellant stipulated to the dismissal with prejudice of counts I, III and IV, as to defendant Markowski. The trial court subsequently entered an order dated January 30, 1991, sustaining the preliminary objections of Markowski and Penn Del, and sustaining Bell’s preliminary objections as to “all counts of Plaintiff pertaining to actions in reference to negligence.” Order, January 30, 1991. The court further directed that “Plaintiffs Complaint shall be restricted to. a cause of action based upon the express written contract between the parties.” Id. This timely appeal followed.

I.

Before we can reach the issue of whether the trial court properly sustained the preliminary objections of appel-lees Penn Del and Bell, we must first address the issue of whether the court’s order is immediately appealable. It is well settled that only a final order is appealable, unless otherwise provided by statute. Praisner v. Stocker, 313 Pa.Super. 332, 336, 459 A.2d 1255, 1258 (1983) (citations omitted). “In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramifications.... A final order is generally one which terminates the litigation, disposes of the entire case, or effectively puts the litigant out of court.” Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-35 (1981) (citations omitted).

In view of these principles, it is immediately apparent that the order is appealable with respect to dismissal of the complaint against Penn Del. “[T]he dismissal of a complaint as to one of several defendants is a final and appeal-able order.” Motheral v. Burkhart, 400 Pa.Super. 408, 415, 583 A.2d 1180, 1184 (1990) (citing United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 629, 487 A.2d 809, 813 (1985)). However, the appealability of the order dismissing three of appellant’s four counts against Bell is not as clear.

“As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appeaiable.” Praisner v. Stocker, supra, 313 Pa.Super. at 337, 459 A.2d at 1258. However, the Praisner court enun-dated an exception to this rule when it held that if the causes of action are separate and distinct, dismissal of some but not all claims is immediately appealable. Id., 313 Pa.Superior Ct. at 341, 459 A.2d at 1260.

Subsequent decisions have clarified this exception through application. Most recently, an en banc panel of this court examined whether an action for professional negligence for failing to administer amniocentesis was separate and distinct from one alleging professional negligence for failure to obtain informed consent. In Jenkins v. Hospital of Medical College of Pennsylvania, 401 Pa.Super. 604, 585 A.2d 1091 (1991), the court stated that in determining whether a plaintiff has been “put out of court” when a particular claim is dismissed, “we look to see whether the claims that have been dismissed and those that remain 'request different relief for different harms.’ ” 401 Pa.Superior Ct. at 611-12, 585 A.2d at 1094 (quoting Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 122, 573 A.2d 1116, 1118 (1990)).

In Cloverleaf Development, Inc. v. Horizon Financial, 347 Pa.Super. 75, 500 A.2d 163 (1985), this court decided an issue closely analogous to the instant one. In Cloverleaf, the trial court dismissed all counts of a complaint except for a breach of contract count. The remaining claims were counts for wrongful interference with prospective contractual relations and intentional infliction of emotional distress, as well as a separate count for punitive damages. The court distinguished claims that are separate and distinct “from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action.” Id., 347 Pa.Superior Ct. at 81, 500 A.2d at 167 (emphasis added).

First, the court followed Praisner, supra, in holding that “where one of several counts seeks to recover punitive damages in a complaint alleging breach of contract, a dismissal of that count does not put the plaintiff out of court on his underlying cause of action. Only if he is successful in his cause of action of breach of contract does the measure of damages become relevant.” Id. (quoting Praisner, supra, 313 Pa.Super. at 341, 459 A.2d at 1260). Next, the court concluded that the appellants were out of court as to their wrongful interference and intentional infliction claims because these claims were separate causes of action. Thus, their dismissal was immediately appeal-able.

In the instant case, appellant’s claim for punitive damages in count III is not final and appealable because, as in Cloverleaf, the contract action remains unresolved. Thus, we quash appellant’s appeal with respect to this claim.

Count II, the claim for negligence, and count IV, the claim for violation of the Unfair Trade Practices Act, however, are both separate and distinct from the breach of contract claim. While the contract action simply states a failure to conform to the terms of the written contract, and seeks lost profits and alternative advertising costs, the negligence claim alleges a failure to act in accordance with the skill reasonably expected of a similarly situated advertising specialist, and seeks damages for physical pain and mental anguish. Because the negligence claim alleges harm and seeks relief entirely different from that pleaded in the breach of contract claim, the negligence claim is separate and distinct. Thus, the order dismissing it is a final, appealable order.

Similarly, appellant’s claim under the Unfair Trade Practices Act is also separate and distinct from the breach of contract claim. In this claim, appellant alleges that appel-lees “falsely represented to Plaintiff that its advertisement services and products would be provided in a workmenlike [sic] manner and be of a reasonable quality.” He seeks, inter alia, treble damages and compensation for the diminished fair market value of his business. This is a separate statutory claim, and as such, is not an alternative way of stating his breach of contract claim. Thus, its dismissal is immediately appealable. Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 213, 529 A.2d 471, 475 (1987) (claim under Unfair Trade Practices and Consumer Protection Law held separate from action in assumpsit for violation of agreement).

We may now turn to the issue of whether the trial court properly sustained appellees’ preliminary objections in the nature of a demurrer, dismissing appellant’s complaint against Penn Del, and counts II and IV against Bell. Our scope of review of an order sustaining preliminary objections in the nature of a demurrer is well-settled:

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A. 492 (1927). The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra.
Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965); Savitz v. Weinstein, supra; London v. Kingsley, 368 Pa. 109, 81 A.2d 870 (1951); Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also, Schott v. Westinghouse Electric Corp., supra, 436 Pa. at 291, 259 A.2d at 449.

Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524-25, 543 A.2d 1092, 1093-94 (1988) (quoting County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985)).

A.

In count II of his complaint, captioned “Negligence,” appellant alleged:

The omission of Plaintiffs display advertisements and listings ... from the Doylestown and Lansdale phone books resulted from the carelessness and negligence of Defendants in that, individually and/or collectively, they:
a. failed to exercise the judgment, care and skill that would be reasonably expected from similarly situated advertising specialists;
b. failed to insure that proper procedures were followed in transmitting Plaintiffs advertisement specifications to those individuals responsible for printing the advertisements ....

Complaint, October 26, 1990, at para. 19. Appellant alleged damages in the nature of emotional distress, mental anguish, embarrassment and depression, and sought compensation in excess of $20,000. Id. at para. 19 & 21. Thus, appellant sought to recover against appellee in tort for appellee’s failure to perform pursuant to the terms of the contract.

Our federal district court, in Closed Circuit Corporation of America v. Jerrold Electronics Corporation, 426 F.Supp. 361 (E.D.Pa.1977), provided a thorough analysis of the difference between tort and contract actions:

Although mere non-performance of a contract does not constitute a fraud ... it is possible that a breach of contract also gives rise to an actionable tort.... “To be construed as in tort, however, the wrong ascribed to defendant must be the gist of the action, the contract being collateral.” 1 C.J.S. Actions § 46. A claim ex contractu cannot be converted to one in tort simply by alleging that the conduct in question was wantonly done.

Closed Circuit Corp., 426 F.Supp. at 364 (citations omitted) (emphasis added). Similarly, the court in Iron Mountain Security Storage Corporation v. American Specialty Foods, Inc., 457 F.Supp. 1158 (E.D.Pa.1978) stated,

[although they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.... To permit a promisee to sue his promisor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions.

Id. at 1165 (citing in part Glazer v. Chandler, 414 Pa. 304, 309-09, 200 A.2d 416, 418 (1964)).

The obligations of the parties in the instant dispute are a matter of private contract law. Although certain services, such as alphabetical directory listings, are considered by the courts to be a public service, and thus governed by Public Utility regulations, contracts for the purchase of supplemental advertisement listings are considered to be a private contractual matter. Felix v. Pennsylvania Public Utility Commission, 187 Pa.Super. 578, 582-83, 146 A.2d 347, 350 (1959). See also Behrend v. Bell Telephone Co., 242 Pa.Super. 47, 71-72 n. 16, 363 A.2d 1152, 1164 n. 16 (1976) (“yellow pages listings and advertisements are generally considered outside the realm of necessary services and are usually the subject of a private contract between the customer and the telephone company”) (citations omitted), opinion vacated on other grounds, 473 Pa. 320, 374 A.2d 536 (1977), rev’d and remanded in accordance with prior opinion, 257 Pa.Super. 35, 390 A.2d 233 (1978). Thus, in this case, the parties’ obligations are defined by the terms of the contract, and not by the larger social policies embodied in the law of torts.

Turning to the instant contract, it provided for appellee to publish a quarter-page display advertisement and listings in the Dentist Guide, Locality Guide and alphabetical section of the 1990-91 editions of the Eastern Montgomery, Doyles-town and Lansdale yellow pages. Appellant agreed to pay $1,059.25 monthly. On the reverse side of the agreement, paragraph 9 of the terms and conditions provided:

The Telephone Company’s liability for damages resulting from errors in or omissions of the advertising or listings provided herein shall be limited to an amount not exceeding the monthly charges for advertising or listings involved.

Such contractual limitations of liability are generally enforced against the customer even in those jurisdictions which would allow recovery to subscribers against the telephone company for errors in white page listings. Behrend, supra, 242 Pa.Super. at 71 n. 16, 363 A.2d at 1164 n. 16 (citing Wilson v. Southern Bell Telephone & Telegraph Co., 194 So.2d 739 (La.App.1967)). Thus, appellant is limited to the monthly charges which he paid for the omitted advertising. Consequently, the court acted properly by sustaining Bell’s preliminary objections and dismissing appellant’s negligence count.

B.

Appellant next contends that “[t]he trial court erred as a matter of law in dismissing count IV of appellant’s complaint (‘violation of the unfair trade practices act’) when appellant moved to restate the claim as ‘fraud’ and when he properly alleged all elements of that cause of action.” Appellant’s Brief at 28. Specifically, appellant concedes that he has no private cause of action under 73 Pa.S.A. § 201-9.2, because section 201-9.2 only provides a private cause of action for personal, family or household purchases. However, he argues that “said claim should have been upheld as one viable for fraud as the allegations set forth thereunder meet all of the elements of that cause of action.” Appellant’s Brief at 29.

In his answer to Bell’s preliminary objections, appellant sought to retitle count IV as a claim for fraud. He did not ever file a motion to amend. However, in its supplemental memorandum of law in support of its preliminary objections, Bell treated appellant’s answer as a request for leave to amend his complaint to allege fraud. Bell did not object to the amendment, but argued that the pleading was inadequate in light of its lack of specificity. When the court dismissed count IV it did so with prejudice. Hence, we will examine the complaint to determine whether, if it had been retitled as a claim for common law fraud, it would have stated a cause of action for fraud.

The elements of fraudulent misrepresentation are (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker to induce the recipient thereby; (4) justifiable reliance by the recipient on the misrepresentation; and (5) damage to the recipient as a proximate result of the misrepresentation. Thomas v. Seaman, 451 Pa. 347, 350, 304 A.2d 134, 137 (1973) (citations omitted); Scaife Co. v. Rockwell Standard Corp., 446 Pa. 280, 285, 285 A.2d 451, 454 (1971) (citations omitted), cert. denied, 407 U.S. 920, 92 S.Ct. 2459, 32 L.Ed.2d 806 (1972). Moreover, averments of fraud must be alleged with particularity and must be sufficient to convince the court that the aver-ments are not merely subterfuge. Pa.R.Civ.P. 1019(b). See also Bata v. Central-Penn National Bank, 423 Pa. 373, 379, 224 A.2d 174, 179 (1966) ("averments of fraud are meaningless epithets unless sufficient facts are set forth which will permit an inference that the claim is not without foundation”). The Bata court clarified:

While it is impossible to establish precise standards as to the degree of particularity required in a given situation, two conditions must always be met. The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge.

Id., 423 Pa. at 380, 224 A.2d at 179 (citations omitted) (emphasis added). Thus, appellant’s allegations of fraud must consist of more than legal conclusions. See Borelli v. Barthel, 205 Pa.Super. 442, 448, 211 A.2d 11, 14 (1965).

Count IV of appellant’s complaint sets forth, in pertinent part, the following allegation:

28. Defendants, at all times material hereto, falsely represented to Plaintiff that its advertisement services and products would be provided in a workmenlike [sic] manner and be of a reasonable quality.
29. At all times materials [sic] hereto, Plaintiff relied on the representations of Defendants, as set forth more fully above, to his great detriment, loss and damage.
30. Defendants [sic] services and products were falsely represented to Plaintiff and substandard in that:
a. Defendants failed to provide Plaintiff with any of the advertisements contracted for in the 1990/91 edition of the Doylestown and Lansdale phone books;
b. Defendants failed to insure that the appropriate procedures and policies were followed in transmitting Plaintiffs advertisement specifications to those individuals responsible for printing;
c. The quality of services provided to Plaintiff by Defendants was substandard in that Defendants failed to possess and/or exercise a degree of care and skill ordinarily possessed and/or exercised by other similarly situated advertising specialists; and
d. Defendants acted and failed to act, as discusses above, in violation,,and total disregard, or the duty of good faith and fair dealing encumbent [sic] upon them by virtue of their contract with Plaintiff.
32. It is further alleged, based upon information and belief, that Defendants have had, into the presently unknown past, specific knowledge of their errors and omissions, akin to those described more fully hereinabove, but have, in reckless disregard of the rights and economic interests of Plaintiff and those similarly situated, relied upon false security inherent in the aforementioned disclaimer. clause of the preprinted Agreement for Directory Advertising forms in failing to take those reasonable but necessary steps in insure [sic] against continuing to cause irreparable financial harm to those such as Plaintiff.

Complaint at para. 28-30, 32. Appellant also alleged proximate damage as a result of the alleged misrepresentation, in excess of $15,000 per month “into the indefinite future.” Complaint at para. 33.

Essentially, appellant alleges that because Bell represented that it would perform pursuant to the terms of the advertising contract, and failed to use reasonable care in ensuring its performance of those terms, it is liable for fraudulent misrepresentation. We do not agree.

First, appellant’s pleading is lacking in that it fails to allege specific facts as to element three of a fraud claim, i.e., intent to induce. Appellant alleges no facts which, if true, would prove this element. Paragraph thirty-two’s vague reference to appellee’s “specific knowledge” in “the presently unknown past” not only fails to specifically plead the facts of intent to induce by misrepresentation, but does not even provide sufficient facts to enable Bell to prepare a defense to the claim. Bell’s failure to act according to its representation to appellant that it would publish his advertisements, without more, does not rise to the level of fraud. “The breach of a promise to do something in the future is not fraud.” Edelstein v. Carole House Apartments, Inc., 220 Pa.Super. 298, 303, 286 A.2d 658, 661 (1971) (citation omitted). Moreover, “[a]n unperformed promise does not give rise to a presumption that the promisor intended not to perform when the promise was made.” Fidurski v. Hammill, 328 Pa. 1, 3, 195 A. 3, 4 (1937) (citation omitted). Thus, count IV of appellant’s complaint does not allege fraud with sufficient specificity to withstand a preliminary objection in the nature of demurrer, and the court properly dismissed the complaint.

C.

Finally, appellant contends that the court erred by dismissing his complaint against Penn Del. He specifically argues that he reasonably understood that he was contracting with both Bell and Penn Del "in that the former provided telephone services while the latter was a separate entity, responsible for printing and publishing the advertisements.” Appellant’s Brief at 35. Because of this, appellant argues that the law relating to agents representing disclosed principals is inapplicable. We do not agree.

A disclosed principal is defined in the Restatement (Second) of Agency § 4 (1958) as follows: “If, at the time of a transaction conducted by an agent, the other party thereto has notice that the agent is acting for a principal and of the principal’s identity, the principal is a disclosed principal.” Id. at § 4(1). “An authorized agent for a disclosed principal, in the absence of circumstances showing that personal responsibility was incurred, is not personally liable to the other contracting party.” Viso v. Werner, 471 Pa. 42, 47, 369 A.2d 1185, 1187 (1977) (quoting Geyer v. Huntingdon County Agricultural Ass’n, 362 Pa. 74, 77, 66 A.2d 249, 250 (1949)). See also Vernon D. Cox & Co., Inc. v. Giles, 267 Pa.Super. 411, 415, 406 A.2d 1107, 1110 (1979) (individual acting as agent for disclosed principal not personally liable on contract between principle and unless agent specifically agrees to assume liability).

In the instant case, appellant conceded in his complaint that Penn Del was acting as an agent for Bell:

On said date [May 13, 1990], Plaintiff entered into a written Agreement for Directory Advertising with Defendant Markowski, acting in her capacity as sales representative for Defendant Penn Del, for which it acted as Defendant Telephone Company’s sole advertising agent
The contract between Defendants and Plaintiff contains the terms and conditions demanded by Defendant Telephone Company, which terms its agents and those with whom they contract are powerless to alter or amend.

Complaint at para. 7 & 9 (emphasis added). Furthermore, appellant makes no allegation that he has evidence which would prove that Penn Del ever assumed personal responsibility for the potential failure of Bell to comply with the terms of the contract. Finally, the contract itself makes no reference to Penn Del, although it makes repeated reference to the “Telephone Company.” Moreover, while the name of Gail Markowski, undisputed employee of Penn Del, appears on the face of the contract, she is expressly designated as “Sales Representative.” Complaint at Exhibit A. Therefore, we find that the court properly dismissed appellant’s complaint against Penn Del, as Penn Del was merely acting as agent for Bell, its disclosed principle.

For the foregoing reasons, we quash appellant’s appeal as to the dismissal of his count for punitive damages, and affirm the court’s order dismissing his complaint against Penn Del, and his counts for negligence and violation of Unfair Trade Practices Act/fraud against Bell.

POPOVICH, J., concurs in the result.

      . Appellant only appeals the dismissal of his complaint against Penn Del.

      . We note that although appellees do not challenge the appealability of the court’s order sustaining appellees’ preliminary objections, it is appropriate for us to raise this issue sua sponte. Drohan v. Sorbus, Inc., 401 Pa.Super. 29, 34, 584 A.2d 964, 966 (1990) (citing Fried v. Fried, 509 Pa. 89, 91, 501 A.2d 211, 212 (1985)).

      . Because of our disposition of count II, we need not address appel-lees’ more specific argument that appellant could not seek damages for emotional distress under the negligence claim.

      . Section 201-9.2 provides, in relevant part, “[a]ny person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action, to recover actual damages or one hundred dollars ($100), whichever is greater.” 73 Pa.S.A. § 201-9.2(a).

      . We note that in his appellate brief, appellant attempts to weave into his Unfair Trade Practices Act/fraud contention a claim of breach of the duty of good faith and fair dealing. Appellant contends that "Count IV states a claim for Bell’s fraudulent misrepresentation to him that it would fulfill its duty of good faith and fair dealing in meeting its obligations, pursuant to the Directory Advertising Contract.” Appellant then sets out, in detail, the elements of a claim for breach of good faith and fair dealing. Appellant's Brief at 29. However, this claim is separate from a claim for fraud. Although appellant made passing reference to good faith and fair dealing in the middle of count IV, he does not suggest that he ever pleaded a good faith and fair dealing count in his original complaint. Therefore, as appellant urges that count IV should be recast as a common law claim of fraud, we decline to also examine it as a claim for breach of good faith and fair dealing. It is clear from the original complaint that he did not intend to plead such a claim in count IV.

      . We note that appellant also alleges in his complaint that the "wrongful acts and/or omissions of Defendants, acting as aforesaid, are not peculiar to Plaintiffs case but represent a long-standing pattern of misconduct by Defendants which has resulted in the victimization of innumerable sole proprietors, corporations and other business persons who of necessity rely upon the advertising of Defendants for economic survival.” Complaint at para. 31. This allegation does not change our conclusion. Appellant appears to allege in this paragraph that Bell knew or should have known by its past willful misconduct that it would not perform under the terms of its contract with appellant. We do not read this as alleging with adequate specificity facts to support the contention of willful misconduct. Appellant does not set forth even one fact that, if true, would prove that Bell did not intend to perform the contract at the time it entered it or recklessly disregarded its willful breach of similar contracts in the past.

      . Appellant does not raise the issue of whether the dismissal with prejudice was proper and, therefore, we do not address that issue.


text:
    601 A.2d 833
    COMMONWEALTH of Pennsylvania v. Robert L. ROWE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1991.
    Filed Jan. 9, 1992.

      Daniel H. Greene, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant, Robert Rowe, takes this nunc pro tunc appeal from the Order entered January 6, 1988 dismissing, without a hearing, his third petition for relief under the Post Conviction Hearing Act (PCHA).

The extensive history behind this appeal began in September 1973 when a jury convicted appellant of first degree murder, two counts of aggravated robbery and conspiracy. Following the denial of post-trial motions by the Honorable James T. McDermott (now Justice McDermott of the Supreme Court), appellant, on November 29, 1973, was sentenced to an aggregate term of imprisonment of life plus ten (10) to twenty (20) years. Summarily, the following have occurred since the time of sentencing.

—Judgment of sentence was affirmed by the Supreme Court on direct appeal. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974).

—Petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania dismissed without a hearing on February 7, 1975.

—Motion for certificate of probable cause and appointment of counsel in the Third Circuit Court of Appeals rejected.

—Second PCHA petition filed June 29, 1981 and denied November 29, 1983 following an evidentiary hearing.

—Appeal from denial of PCHA relief affirmed by this Court on March 6, 1985. Commonwealth v. Rowe, 343 Pa.Super. 617, 494 A.2d 485 (1985) (unpublished memorandum) (allocatur denied).

—Appellant filed a third PCHA petition on August 15, 1986. Counsel was appointed, an amended PCHA petition was filed and subsequently counsel filed a “no merit” letter regarding appellant’s claim and, moreover, found no other issues of arguable merit. The Honorable Joseph O’Keefe undertook his own independent and careful review of the record and, like counsel, finding no issues of arguable merit, dismissed the petition without a hearing.

—An appeal was filed in this Court but dismissed on September 30, 1988 due to counsel’s failure to file a brief.

—New counsel was again appointed, and an amended PCHA petition was filed alleging prior counsel’s ineffectiveness for not filing a brief in this Court resulting in dismissal of the appeal. With the agreement of the Commonwealth, appellant’s right to appeal was restored nunc pro tunc and appellant was returned to the same status he had when the prior appeal to this Court was filed. The instant appeal was filed May 13, 1991.

—Present counsel was appointed on July 24.

Counsel now poses an entirely new issue for our considerall prior counsel were ineffective for not recognizing that the prosecutor impermissibly elicited from defendant that he was unemployed in order to ascribe to him a motive for the robbery.” (Appellant’s brief, p. 3.)

Our extensive and careful review of the record in this matter leads us to conclude not only does the issue presented lack merit but procedurally it never should have reached us under the guise of ineffectiveness of counsel and brought by appellant’s at least sixth court-appointed counsel.

With regard to allegations of trial counsel’s ineffectiveness the test is well settled. Our initial inquiry must determine whether the underlying claim is of arguable merit. If the claim is devoid of merit, our inquiry ceases for counsel will not be deemed ineffective for failing to pursue an issue without merit. If, however, the claim possesses merit, we must determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Finally, appellant must demonstrate how the ineffectiveness prejudiced him. Commonwealth v. Tressler, 526 Pa. 139, 584 A.2d 930 (1990). The law presumes counsel is effective and the burden of establishing ineffective assistance is on the appellant. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

Following the Supreme Court’s 1974 review of this case, our Court in 1985 carefully considered the complete record. Having done so, the Court stated:

Our examination of the record leads us to conclude that appellant’s appeal is wholly frivolous. The evidence clearly supports the finding that appellant was a co-conspirator and active participant in a planned robbery which resulted in murder. There are no instances of reversible error on the record.
Order affirmed; appellate counsel’s motion to withdraw granted; appellant’s motion to remand for appointment of new counsel denied.

Rowe, supra, unpublished memorandum at p. 4 (emphasis added).

In considering the above, two points are strikingly evident. This Court found no instances of reversible error on the record and appellant’s motion for appointment of new counsel was denied. How then did so many successor counsel come to be appointed to a case without issues of arguable merit?

Our Supreme Court, in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), addressed the problems posed by repetitive post-conviction petitions and court-appointed counsel. The Court, presented with a case not unlike this one with its beginnings in 1973, stated:

[T]he mere assertion of ineffective assistance of counsel is not sufficient to override the waiver and “finally litigated” provisions in the P.C.H.A., as to permit the filing of repetitive or serial petitions under the banner of that statute.12 A repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate.... There has been no showing of a miscarriage of justice that would warrant entertaining his repetitive application for collateral relief.
12. The new provisions enacted by the General Assembly in the Act of April 13, 1988, clearly reflect a legislative perception that courts had been too generous in entertaining claims for relief under the former statute. For example, under the new 42 Pa.C.S. § 9543(a)(2)(h), a petitioner seeking relief on a claim of ineffective assistance of counsel must plead and prove that counsel’s stewardship “so undermined the truth-determining process that no reliable adjudication of guilty or innocence could have taken place.”

Id., 519 Pa. at 513-14, 549 A.2d at 112.

Based on the Supreme Court’s reasoning in Lawson and our discussion infra, we reject appellant’s claim for collateral relief. Not only has this case been finally litigated on prior occasions but the sole issue which counsel now argues has been waived, is not properly before us and lacks merit.

As to waiver, the issue could have been raised on prior occasions and appellant has failed to offer any evidence of the existence of extraordinary circumstances justifying his failure to raise the claims at the earliest opportunity. Like the Supreme Court in Commonwealth v. Wright, 497 Pa. 492, 442 A.2d 230 (1982), we decline “to excuse appellant’s failure to present appropriate evidence solely on the basis of his unsubstantiated allegation that PCHA counsel [here all prior counsel] was ineffective.” Id., 497 Pa. at 499 n. 4, 442 A.2d 233 n. 4. Regarding appellant’s claim the Commonwealth does not oppose this appeal in the basis of waiver, we find that is not the case. The Commonwealth does argue waiver of this issue having only agreed to put appellant in the same position he was at the time of the dismissed appeal to this Court.

Whether or not appellant’s employment status was a proper topic for questioning is, moreover, not properly before us due to the fact it was not until 1987 in Commonwealth v. Haight, 514 Pa. 438, 525 A.2d 1199 (1987), that our Supreme Court held it was improper to question a defendant about his employment status. As this trial took place in 1973 and appellant has cited us no earlier caselaw supporting his proposition, we find trial counsel and subsequent counsel were not ineffective for failing to predict a change in the law. See Commonwealth v. Mitchell, 391 Pa.Super. 100, 570 A.2d 532 (1990).

[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal

Blackwell v. Commonwealth of Pennsylvania State Ethics Commission, 527 Pa. 172, 188, 589 A.2d 1094, 1102 (1991) (emphasis added), quoting Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983). Because the issue posed by current counsel was not preserved at any stage of adjudication, it has not been preserved for our review. Moreover, even if we were to find the questioning as to appellant’s unemployment was improper, we would find it to have been harmless error due to the overwhelming evidence presented to the jury which would have formed a sufficient basis for a finding of guilty even without the testimony at issue. There is not even a reasonable possibility the alleged error may have contributed to appellant’s conviction.

The Order denying PCHA relief without a hearing is affirmed. Appellant is not entitled to any further court-appointed counsel. Should appellant wish to proceed further he may do so pro se or through privately retained counsel. Court-appointed counsel is no longer available to him. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Should appellant elect to proceed in further frivolous and unwarranted procedures, the trial court should impose whatever sanctions and costs on him as are permitted by law.

Order affirmed.

      . Effective April 13, 1988, the Pennsylvania Legislature repealed in part and substantially modified in part the Post Conviction Hearing Act, renaming it the Post Conviction Relief Act. Act of April 13, 1988, No. 47 § 3, 1988 Pa.Legis.Serv. 227, 42 Pa.C.S. §§ 9541-9546. As the instant petition was filed prior to the effective date of the PCRA, it must be evaluated under the PCHA.

      . Appellant’s first PCHA action was filed on November 5, 1973 prior to sentencing. It was dismissed as procedurally improper on December 3, 1973.

      . In an extensive footnote to the above stated issue, counsel explains why issues presented in the prior PCHA petition were without merit and are, therefore, abandoned for appeal purposes. He then goes on to say why this issue, while being raised now for the first time, should be considered. He states that although the trial court could not have directly addressed the claim he impliedly did so and denied the allegation since having reviewed the record the court found no misconduct on the part of the prosecutor.

      . For a comprehensive review of the evidence, see the Supreme Court’s Opinion at Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974).


author: KELLY, Judge:

text:
    601 A.2d 837
    Margaret HARMOTTA and Nick Harmotta, Husband and Wife, Appellants, v. Father Phillip BENDER, Pastor of Immaculate Conception Church of Vintondale, Immaculate Conception Church of Vintondale, Rev. James Hogan, Former Bishop of the Altoona-Johnstown Diocese, Rev. Joseph Adamec, Bishop of the Altoona-Johnstown Diocese, and Altoona-Johnstown Diocese, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1991.
    Filed Jan. 10, 1992.
    Petition for Allowance of Appeal Denied May 26, 1992.

      Robert A. Cohen, Pittsburgh, for appellants.
    Stephen L. Dugas, Hollidaysburg, for appellees.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether the trial court properly refused to exclude for cause Roman Catholic jurors who were members of a diocese, a named party defendant with a remote financial interest in the outcome of the lawsuit, but were not members of a specific parish, also a named party defendant with a direct financial interest in the outcome of the lawsuit; and whether the trial court properly instructed the jury that the doctrine of hills and ridges dictated the appellants’ burden of proof. We find, first, that the trial court properly refused to exclude for cause members of the diocese given their remote financial interest in the litigation and their avowed commitment to decide the case fairly and impartially. Second, we find that the doctrine of hills and ridges governs whether a plaintiff may recover for a fall on an ice- or snow-covered sidewalk or parking lot which occurred at a time when generally slippery conditions prevailed in the community. Therefore, we affirm.

The relevant facts and procedural history are as follows. In January, 1986, the appellant-wife was injured when she fell and was injured while traversing a snow-covered parking lot at the Immaculate Conception Church of Vintondale in order to attend a bingo game held there. The appellants filed this action against Father Phillip Bender, Pastor of the Immaculate Conception Church of Vintondale, and the Bishop of the Altoona-Johnstown Diocese to recover damages resulting from the appellant-wife’s injuries.

During jury selection, the appellants sought to challenge for cause any venireperson who was a member of the Altoona-Johnstown Diocese. The trial court denied the appellants’ challenge, questioned every panel member who admitted membership in the diocese, and allowed to remain those venirepersons who indicated that they would decide the case in a fair and impartial manner. Of the thirteen jurors selected (twelve jurors and one alternate), three indicated membership in the Altoona-Johnstown Diocese. (N.T. 11/28/90 at 11, 18, 19). None were members of the Immaculate Conception Church of Vintondale. Each of these jurors indicated that they could decide this case in an impartial manner.

At trial, the appellant-wife testified regarding the condition of the parking lot on the day of her injury. She testified that the surface of the parking lot was “smooth, white covered.” (N.T. 12/4/90 at 9). She also stated that fresh snow, three to five inches deep, covered the parking lot (Id. at 13), and that there was no indication to her that there was ice underneath the snow. (Id. at 12). The appellant-wife continued, stating that after she had exited her daughter’s automobile and walked six to eight feet, she could feel something “like a ridge” under her foot. The appellant-wife testified that she was watching where she was walking when her foot hit something, she tripped, and she fell down on her left side. (N.T. 12/4/90 at 10).

Both parties offered expert testimony regarding the weather conditions in the Vintondale area at the time of the accident and the resulting accumulation of ice and snow on the parking lot. The appellants’ expert testified that there would be “anywhere from a trace to an inch-and-a-half” of snow and packed ice on the parking lot and “approximately ... two inches” of fresh snow on top of that. (N.T. 12/5/90 at 75, 98). An expert testifying on behalf of the appellees stated that there would have been one inch of compacted icy snow under a “dusting to a quarter of an inch” of fresh snow covering the parking lot. (N.T. 12/6/90 at 20, 32).

The trial court instructed the jury that, in order to recover for a fall on an ice or snow-covered parking lot, the appellants needed to prove

that the snow and ice had accumulated on the lot in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; and that the [appellees] had notice [,] either actual or constructive, of the existence of such condition ... and ... that it was this dangerous accumulation of snow or ice into the ridges or elevations which actually caused the [appellant-wife] to fall.

(N.T. 12/7/90 at 37). In so charging the jury, the trial court rejected the appellants’ points for charge 4, 5, and 6, which placed a duty on the appellees to implement some remedial measure (placing salt or ashes, warning visitors of the presence of ice, or barricading the icy area) if they knew or should have known of the icy patches, and which also eliminated the appellants’ burden of showing that ice and snow had accumulated in hills and ridges thereby unreasonably obstructing the appellant-wife’s travel.

The jury returned a verdict in favor of the appellees. The appellants filed a motion for post-trial relief. The trial court denied the appellants’ request for a new trial, finding that the appellants’ challenge for cause based on membership in the Altoona-Johnstown diocese was properly refused, and that the doctrine of “hills and ridges” with which it charged the jury has not been abandoned in this Commonwealth. (Tr.Ct.Op. of 2/22/91 at 2-3). This timely appeal followed.

On appeal, the appellants raise the following issues for our review:

I. WAS THE REFUSAL OF THE LEARNED TRIAL JUDGE TO EXCLUDE MEMBERS OF THE ALTOO-NA JOHNSTOWN DIOCESE, ONE OF THE APPEL-LEES HEREIN, FROM THE JURY PANEL, AN ABUSE OF DISCRETION?
II. DID THE LEARNED TRIAL JUDGE COMMIT AN ERROR OF LAW IN REFUSING TO CHARGE THE JURY IN ACCORDANCE WITH THE LEGAL STANDARD APPLICABLE TO ICE AND SNOW CASES PROPOUNDED BY THE PENNSYLVANIA SUPREME COURT IN FERENCZ V. MILIE, 517 Pa. 175 [141], 535 A.2d 59 (1987)?

(Appellant’s Brief at 3).

The appellants first contend that the trial judge’s refusal to exclude for cause members of the Altoona-Johnstown Diocese constituted an abuse of discretion. The appellants argue that membership in the appellee-diocese would render the venirepersons incompetent to sit as jurors due to the bias, prejudice, and unfairness that would result because the members of the diocese had an economic interest in the outcome of the case and because “[djiocesan members may have been subject to moral intimidation at the trial that would nullify their oaths as jurors.” (Appellants’ Brief at 7). The appellants claim that our Supreme Court’s holding in Rissmiller v. Evangelical Lutheran Congregation, 268 Pa. 41, 110 A. 740 (1920), supports their argument that Catholics who are members of the Altoona-Johnstown Diocese should be disqualified from the jury venire.

Where a party argues that the trial judge erred in refusing to sustain certain challenges for cause, the scope of our review is limited. This Court has long recognized that

wide latitude is given to the discretion of the trial judge and, absent any showing that the trial judge abused his discretion in this respect, his action must be sustained.

Linsenmeyer v. Straits, 402 Pa. 7, 166 A.2d 18, 22-23 (1960), citing Commonwealth v. Pasco, 332 Pa. 439, 445, 2 A.2d 736 (1938).

The systematic and intentional exclusion of jurors based on their membership in a particular race, religion, or social class is antagonistic to the American tradition of trial by jury, whether a criminal or civil proceeding is involved. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181, 1184 (1946). When determining juror competence, a trial judge need assess individual qualifications and a particular juror’s ability to consider, in an unbiased manner, the evidence presented at trial. Batson v. Kentucky, 476 U.S. 79, 87, 106 S.Ct. 1712, 1718, 90 L.Ed.2d 69, 81 (1986), citing Thiel, supra 328 U.S. at 223-24, 66 S.Ct. at 987. Courts in this Commonwealth have long held that “a juror is not incompetent merely because he and one of the parties are members of the same religious denomination.” Sebring v. Weaver, 42 Pa.Super. 588, 589-90 (1910); see also Commonwealth v. Figari, 166 Pa.Super. 169, 170, 70 A.2d 666, 667 (1950).

The appellants contend that all members of the Altoona-Johnstown Diocese have a direct financial contact to the appellee-Diocese, and therefore, a challenge for cause should have been granted. We cannot agree.

This Court has held that challenges for cause should be granted in two instances:

(1) when a venireman has such a close relationship be it familial, financial, or situational, with any of the parties, counsel, victims, or witnesses that a likelihood of prejudice should be presumed, and (2) when a venireman’s answers and conduct demonstrate likelihood of prejudice.

Commonwealth v. Jackson, 386 Pa.Super. 29, 38, 562 A.2d 338, 342 (1989) (en banc); Commonwealth v. Berrigan, 369 Pa.Super. 145, 159, 535 A.2d 91, 98 (1987) (en banc), alloc. denied, 521 Pa. 609, 557 A.2d 341, cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 173 (1989), citing Commonwealth v. Colson, 507 Pa. 440, 454, 490 A.2d 811, 818 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). With respect to the first circumstance, a prospective juror, who indicates during voir dire that he or she will not be prejudiced, will not be disqualified based on a remote relationship to an involved party. Berrigan, supra at id., 369 Pa.Superior Ct. at 159, 535 A.2d at 98. Thus, where a prospective juror and one of the parties are members of the same religious denomination, but the veni-reperson has only a remote and not a direct financial interest in the outcome of the litigation, and the venireper-son indicates that he or she will not be prejudiced, a challenge for the cause need not be granted. See Berrigan, supra; Sebring, supra.

In Rissmiller v. Evangelical Lutheran Congregation, supra, our Supreme Court held that the prospective jurors’ membership in congregations associated with a general religious denomination did not give the jurors a sufficient interest in the outcome of the litigation to render the trial court’s refusal to grant challenges for cause as to those jurors. The same result is required here. The challenged venirepersons who became members of the jury were not members of the Immaculate Conception Church of Vinton-dale with a direct financial interest in the outcome of the litigation, but merely members of the Altoona-Johnstown Diocese with a remote interest.

A prospective juror’s remote financial connection to a party to the proceedings does not render him or her incompetent to serve on a jury. In Pennsylvania Power & Light v. Gulf Oil Corp., 270 Pa.Super. 514, 411 A.2d 1203 (1980), we held that in an action by a public utility against a corporation, a change of venue was not warranted because, although a large number of county inhabitants were customers of the utility and could benefit from a judgment in favor of the utility, the veniremen’s interest in the case, adverse to the defendant corporation, was too contingent and, perhaps, insignificant to support the argument that they would be biased against the defendant. In that case, we compared the remote financial interest of a utility customer, who may receive some benefit from a judgment in favor of the utility in the form of reduced electric rate, to that of a taxpayer whose taxes may be affected by their judgment in a case involving the county, and concluded that it was “too shadowy, indirect, remote and contingent to be within the rule that a man cannot be a judge in his own case.” Id., 270 Pa.Superior Ct. at 535, 411 A.2d at 1214 (citations omitted). We then contrasted the interest of a public utility customer with that of a shareholder, who has a direct ownership interest in a corporation, and who would “reasonably be assumed to consider the interest of the corporation as his own.” Id., 270 Pa.Superior Ct. at 535 n. 23, 411 A.2d at 1214 n. 23. We concluded that if the veniremen’s responses to voir dire satisfied the trial court that they could decide the case impartially, then they ought to be permitted to sit as jurors. 270 Pa.Superior Ct. at 538, 411 A.2d at 1216.

In Commonwealth v. Berrigan, supra, we held that, contrary to the defendants’ assertion that four veniremen ought to have been dismissed for cause, the four venireper-sons, who had only remote financial, familial, or situational contacts to the action, and who had indicated that they would be impartial jurors, qualified as jurors. The four were:

(1) a woman who owned stock in [the company whose property was allegedly damaged by the defendants] but who stated that the impact of any decision in the case on her financial well-being would be ‘very minute ... ’; (2) a vice president for marketing of a company which [like the company whose property was damaged] had some government defense contracts ...; (3) the daughter of a man who worked as a manager in [the company whose property was allegedly damaged by the defendants] but who was not involved in the manufacture of ... equipment [like that allegedly destroyed by the defendants] ...; and (4) a title researcher who frequently worked in the ... courthouse [where the case was being tried].

Berrigan, supra, 369 Pa.Superior Ct. at 159, 535 A.2d at 98.

In the instant case, the appellants argue that each member of the Altoona-Johnstown Diocese has a personal financial interest in the outcome of the case by virtue of the fact that members of the Diocese fund church activities, and could be called upon to reimburse the church in the event that the appellants recovered a judgment against the church. (Appellants’ Brief at 9-10). As the public utility customers in Pennsylvania Power & Light, supra, and the four challenged venirepersons in Berrigan, supra, had financial, familial, or situational contacts to the action that were too remote to justify excluding them from the jury, the members of the Altoona-Johnstown Diocese, in the instant case, have a financial interest in the litigation that is too remote to uphold a challenge for cause. Given their tenuous financial interest in the outcome of the instant litigation, and the venirepersons’ indications to the trial judge that they would decide the matter fairly and impartially, the trial court’s refusal to grant the appellants’ challenge for cause did not constitute an abuse of discretion.

The appellants also contend that the trial court improperly instructed the jury regarding the viability of the hills and ridges doctrine. The appellants argue that the Pennsylvania Supreme Court, in Ferencz v. Milie, 517 Pa. 141, 535 A.2d 59 (1987), abandoned the doctrine of “hills and ridges” in slip and fall cases involving icy and snowy walks and parking lots. Therefore, the appellants claim, the trial court’s instructions to the jury that, in order to recover, the appellant need prove that snow and ice had accumulated in hills and ridges, that the appellees had notice of such, and that the accumulation caused the appellant-wife to fall, was error.

The doctrine of hills and ridges provides

that an owner or occupier of land is not liable for general slippery conditions, for to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere. Snow and ice upon a pavement create merely transient danger, and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition.

Gilligan v. Villanova University, 401 Pa.Super. 113, 116-117, 584 A.2d 1005, 1007 (1991). This Court has held, since the Ferencz case, that in order to recover for a fall on an ice- or snow-covered sidewalk, a plaintiff must prove

(1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.

See Gilligan, supra. See also Giosa v. School District of Philadelphia, 127 Pa.Cmwlth. 537, 540-41, 562 A.2d 411, 413, alloc. denied, 525 Pa. 629, 578 A.2d 416 (1989).

This Court in Bacsick v. Barnes, 234 Pa.Super. 616, 341 A.2d 157 (1975), explained the exceptions to the hills and ridges doctrine. It had snowed twelve to fifteen inches two days prior to the day when the plaintiff was struck by a car when she was forced to walk on the street because the sidewalk was inaccessible due to a snow bank of artificial origin. This Court stated:

It appears that the “hills and ridges” doctrine may be applied only in cases where the snow and ice complained of are the result of an entirely natural accumulation, following a recent snowfall. Thus, the rule of Rinadli v. Levine [406 Pa. 74, 176 A.2d 623 (1962)], supra, is predicated on the assumption that “ ‘[t]hese formations are natural phenomena incidental to our climate.’ ” Rinaldi v. Levine, supra, 406 Pa. at 78, 176 A.2d [at] 625, quoting Whitton v. H.A. Gable Co., supra [331 Pa. 429], at 431, 200 A. [644] at 645 [1938] (emphasis supplied). In the instant case, evidence was received tending to prove that the snow bank which blocked Mrs. Bacsick’s access to the sidwalk was, in large part, of artificial origin; it was apparently deposited as the result of the plowing of the street by the city and state snow plows.

This Court further stated in Bacsick, supra, that:

[t]his general “hills and ridges” rule is subject to a number of [other] significant exceptions. Thus, proof of hills and ridges is not required when the hazard is not the result of a general slippery condition prevailing in the community, but of a localized patch of ice. Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971); Williams v. Schultz, 429 Pa. 429, 240 A.2d 812 (1968). Nor is proof of hills and ridges required when an icy condition is caused by the defendant’s neglect, as where a city maintains a defective hydrant, water pipe, drain, or spigot. Ward v. Pittsburgh, 353 Pa. 156, 44 A.2d 553 (1945).

234 Pa.Superior Ct. at 621-622, 341 A.2d at 160.

In Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971), our Pennsylvania Supreme Court addressed the applicability of the hills and ridges doctrine. The plaintiff fell on a crack in a public sidewalk where ice had formed. There had been no recent precipitation. The Court, in noting an exception to the doctrine, stated: “[p]roof of ‘hills and ridges’ is necessary only when it appears that the accident occurred at a time when general slippery conditions prevailed in the community, which is not the case here.... Where, as here, a specific localized patch of ice exists on a sidewalk otherwise free of ice and snow, the existence of ‘hills and ridges’ need not be established.” 442 Pa. at 376, 275 A.2d at 298.

There is no indication in the case law that our Supreme Court has abandoned the longstanding hills and ridges doctrine as the appellants have asserted. In Ferencz, supra, like in Tonik, supra, the plaintiff fell on a specific localized, patch of ice. Instantly, a review of the record reveals that generally slippery conditions existed in the community at the time of the appellant-wife’s fall. A layer of fresh snow, which had fallen the day of the accident, covered a layer of packed snow and ice. Both the appellants’ expert and the appellees’ expert testified that there would have been a layer of packed ice and snow beneath a layer of fresh snow on the parking lot at the time of the appellant-wife’s fall. This corroborates the appellant-wife’s testimony that fresh snow covered the parking lot. There was no testimony or evidence presented that appellant fell on a specific localized patch of ice. Therefore, the hills and ridges doctrine applied and the trial judge properly charged the jury with regard thereto.

Based upon the foregoing, the trial court’s denial of the appellants’ motion for a new trial and entry of judgment in favor of the appellees is affirmed.

Judgment affirmed.

      . This court has applied the Ferencz holding in negligence actions. In those instances, we discussed the Ferencz case in an assumption of the risk context. See Baran v. Pagnotti Enterprises, Inc., 402 Pa.Super. 298, 307, 586 A.2d 978, 982 (1991); Herr v. Booten, 398 Pa.Super. 166, 176, 580 A.2d 1115, 1120 (1990), alloc. denied, 528 Pa. 635, 598 A.2d 992 (1991).