author: WICKERSHAM, Judge:

text:
    510 A.2d 787
    Arthur E. McMULLIN, Sr., Appellant v. Frank J. DALLAGO, III, Frank J. Dallago, II, and Aetna Life & Casualty Company a/k/a Aetna Casualty & Surety Company.
    Superior Court of Pennsylvania.
    Argued March 11, 1986.
    Filed June 2, 1986.

      Ralph D. Friedman, Abington, for appellant.
    David W. Moneymaker, Wayne, for appellees.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WICKERSHAM, Judge:

Arthur E. McMullin appeals from the order of the Court of Common Pleas of Montgomery County sustaining appellee Aetna’s amended preliminary objections and dismissing Count II of appellant’s complaint and transferring venue for Count I of the complaint from Montgomery County to Berks County.

Shortly before midnight on August 20, 1982, appellant McMullin was walking along Pennsylvania Route 61 in Leesport, Berks County, when he was struck by two motor vehicles. Appellee Frank J. Dallago, III was the operator of one of the vehicles involved. His father, Frank J. Dallago, II, was the owner of the car, and was the named insured in an automobile insurance policy issued by appellee Aetna Life & Casualty Company (“Aetna”). The other motorist who struck appellant fled the scene of the accident and remains unknown. There is no dispute that appellant was uninsured at the time of the accident.

On August 10, 1984, appellant filed a two-count complaint against appellees. In Count I, appellant sought to recover damages in tort from the Dallagos. In Count II, appellant sought uninsured motorist benefits from Aetna, on the basis that he was an uninsured pedestrian, that the Dallagos’ policy with Aetna included uninsured motorist coverage, and that since one of the cars that struck him was unidentified, he was entitled to uninsured motorist benefits from Aetna. Aetna filed preliminary objections to Count II, stating that, absent a contract between Aetna and appellant, Aetna was under no obligation to compensate appellant for damages allegedly inflicted by the unidentified vehicle. Aetna also objected to venue in Montgomery County. On June 27, 1985, the lower court granted Aetna’s amended preliminary objection in the nature of a demurrer, striking Count II of the complaint. Aetna’s objection concerning venue was also sustained and the remainder of the case, i.e., Count I, was transferred to Berks County. It is to this order that appellant filed this timely appeal.

Appellant raises two issues before us:

Did the lower court err in failing to find that an insurer providing basic los[s] benefits under the No-fault Act to an uninsured pedestrian struck by a hit and run vehicle must also provide uninsured motorist coverage for said victim?
Did the lower Court err in issuing an order changing venue pursuant to Pennsylvania Rule of Civil Procedure § 1006(c) which provides that in a case of joint and several liability, the action can be brought in any county in which one of the Defendants can be served?

Brief for Appellant at 4.

The primary issue raised — whether the lower court erred in holding that appellant was not entitled to uninsured motorist benefits from Aetna — is one of first impression before this court. Appellant concedes in his brief that if we affirm on this point, then his other issue regarding the transfer of venue will be without merit and venue would properly be transferred to Berks County.

Our scope of review is well-established.

The scope of appellate review of a challenge to an order sustaining preliminary objections in the nature of a demurrer is, of course, well settled:

All material facts set forth in the complaint as well as all inferences reasonably deductible therefrom are admitted as true for [the purposes of this review.] ... The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible____ Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Vann v. School District of Philadelphia, 348 Pa.Super. 383, 384, 502 A.2d 260, 261 (1985).

We, therefore, accept as true for the purposes of our review, that appellant was injured while walking along the highway as the result of his being struck by both the insured Dallago vehicle and the presumably uninsured, unidentified vehicle. The question before us is whether the Dallago’s insurer, Aetna, must pay uninsured motorist benefits in addition to basic loss benefits.

After careful consideration of the record, the briefs of the parties, and the applicable law, we find the excellent opinion of the Honorable Horace A. Davenport to be persuasive. We rely heavily on his opinion in the following discussion.

The stated purpose of the Pennsylvania No-fault Motor Vehicle Insurance Act was “to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b). To accomplish this purpose, the Act required every vehicle registered or operated in Pennsylvania to be insured, either by a policy of insurance, or by self-insurance. 40 P.S. § 1009.104. This insurance had to provide for the payment of basic loss benefits and for the payment of statutorily-designated sums which the owner or authorized operator may be liable to pay as damages for personal injury to any one person and for property destruction. 40 P.S. § 1009.104(a); Tierney v. Pennsylvania Assigned Claims Plan, 319 Pa.Super. 299, 466 A.2d 168 (1983). Thus, an owner or authorized operator, driving an insured vehicle, who was injured in an automobile accident was to be paid basic loss benefits by his insurer whether he was at fault or not. At the same time he was covered up to the limits of his insurance policy for any tort liability he may have incurred. 40 P.S. § 1009.111.

In addition to the coverage required by section 104(a), uninsured motorist coverage was also required. 31 Pa. Code §§ 66.1-104(a); Tubner v. State Farm Mutual Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981). See also 40 P.S. § 2000(a). This uninsured motorist coverage ensured that innocent victims would be able to recover the damages they would have received had the uninsured tortfeasor maintained liability insurance. Providence Washington Insurance Company v. Rosato, 328 Pa.Super. 290, 476 A.2d 1334 (1984). However, before recovery of uninsured motorist benefits was possible, it had to be determined that the owner or operator of the uninsured vehicle was the legal cause of the insured’s physical injuries. State Farm Mutual Automobile Insurance Company v. Williams, 481 Pa. 130, 392 A.2d 281 (1978). Generally speaking then, where an uninsured driver was found liable for an insured victim’s injuries, the insured could recover damages in tort from his own insurer pursuant to the uninsured motorist provisions of the No-fault Act.

Therefore, it is clear that under the No-fault Act, an insured individual who was injured in a motor vehicle accident would always receive basic loss benefits and, where he could prove entitlement, a certain amount of damages in tort. Until recently however, this was not true where an uninsured person was injured in an automobile accident. An uninsured individual was assured of receiving basic loss benefits either from an insured vehicle involved in the same accident, or if none of the parties was insured, then under the assigned claims plan set out in 40 P.S. § 1009.108. What was not so certain was whether an uninsured individual was also guaranteed the recovery of at least some damages in tort.

This question came before the Pennsylvania Supreme Court in Tubner v. State Farm Mutual Automobile Insurance Company, supra. In Tubner, an uninsured individual was killed when the uninsured car in which he was a passenger was hit by an uninsured motorist. No policy of basic loss insurance was applicable to the uninsured victim and a claim had to be made with the No-fault Assigned Claims Plan. Eventually, defendant State Farm was appointed to handle Tubner’s claim. State Farm paid basic loss benefits, but refused to provide uninsured motorist benefits.

The supreme court ordered State Farm to pay the plaintiff uninsured motorist benefits, stating:

Because assigned insurers are obligated precisely as if they had issued basic loss insurance policies, and because every policy of basic loss insurance issued in Pennsylvania must include uninsured motorist coverage, the right to uninsured motorist benefits under the assigned claims plan follows a fortiori from a straightforward reading of the statute and the regulation lawfully promulgated thereunder.

Id. 496 Pa. at 219-220, 436 A.2d at 623 (emphasis in original) (footnote omitted). Thus, after Tubner, it appeared that, in most instances, an uninsured individual injured through the fault of another uninsured individual could receive both basic loss benefits and uninsured motorist benefits under the assigned claims plan, with the latter benefits covering the victim’s general tort damages. However, the situation which arose in Prudential Property and Casualty Insurance Company v. Falligan, and its companion case, Donovan v. Keystone Insurance Company, 335 Pa.Super. 195, 484 A.2d 88 (1984), revealed that there were still gaps in the system.

In Falligan, an uninsured pedestrian was struck and injured by an insured vehicle driven by an uninsured operator who was driving the car without the owner’s permission. The victim was paid basic loss benefits as required under 40 P.S. § 1009.204(a)(4), but because the unauthorized driver of the car was not insured, the victim could not recover his general damages in tort from that source. The plaintiff therefore sought to secure uninsured motorist benefits from the vehicle’s insurer. The defendant insurer denied coverage for uninsured motorist benefits on the ground that its policy of insurance issued to the automobile owner was without legal effect since the automobile was being operated at the time of the accident without her permission.

Our court relied heavily on Tubner in dismissing this objection and concluded:

We perceive no distinction in status between an uninsured victim who must look to the applicable security for coverage of his claim to uninsured motorist benefits under § 1009.204(a)(4) and an uninsured victim who must look to the assigned claims plan under § 1009.204(a)(5)---- [W]e cannot accept Prudential’s disclaimer argument since a claimant’s right to uninsured motorist benefits is not contingent upon the status of the driver of the insured vehicle.

Id., 335 Pa.Superior Ct. at 202-03, 484 A.2d at 92 (footnote omitted). Thus Falligan makes it clear that any uninsured victim will receive both basic loss benefits and damages in tort whenever the situation so warrants.

From the Tubner and Falligan decisions, it is obvious that the courts were concerned with the concept of “maximum feasible restoration”. In both cases, maximum feasible restoration was not possible because both victims and tortfeasors were uninsured. Plaintiffs could recover basic loss benefits, but not their damages in tort. Therefore, in order to effect maximum feasible restoration, the courts in Tubner and Falligan awarded uninsured motorist benefits to the victims.

These were not arbitrary awards, however, made simply in the interests of justice and equity. They were the results of carefully reasoned decisions. Tubner and Falligan do not alter the purpose behind the payment of uninsured motorist benefits. An uninsured victim will receive uninsured motorist benefits where that victim cannot recover damages from a standard source, such as an operative policy of basic loss insurance. Uninsured motorist benefits will not accrue simply because an uninsured vehicle or driver is involved in an automobile accident.

In contrast to the situations in Tubner and Falligan, where both the victims and the tortfeasors were uninsured, the victim in the instant action was uninsured, but was struck by an insured vehicle. Appellant therefore falls, like the victim in Falligan, under the terms of 40 P.S. § 1009.-204(a)(4). That is, the applicable security for appellant’s basic loss benefits is Dallago’s insured automobile and therefore, its insurer, i.e. Aetna. As long as appellant can prove fault on the part of Mr. Dallago, the driver, he is assured of recovering damages in tort up to the limits of the policy issued by Aetna, depending upon the amount of any award. In fact, this is the purport of Count I of appellant’s complaint. This is not an instance where the victim has no substantive recourse to damages because the tortfeasor is an uninsured man of straw. “Maximum feasible restoration” to appellant here is possible since the Dallagos are covered under a policy of basic loss insurance.

Therefore, appellant’s contention that, because he was also struck by a second (hit-and-run) vehicle, he is also entitled to uninsured motorist benefits under the Dallago policy issued by Aetna, would give him benefits greater than those intended by the Act. Appellant will receive basic loss benefits and may recover damages in tort, which would be paid by Aetna. To make Aetna pay uninsured motorist benefits on top of this would be to give appellant more than is contemplated under the No-fault Act. Here, appellant is asking that Aetna be held liable for: 1) no-fault coverage; 2) tort liability coverage; and, 3) uninsured motorists coverage for the unidentified vehicle. Asking Aetna to pay twice the amount of damages it is obligated to pay under the insurance policy is totally contrary to the Act, and to the legislative policy underlying the Act. “We cannot in equity and good conscience allow [appellant] to receive more that one satisfaction for [his] injuries, by permitting [him] to be twice compensated for them at the expense of [Aetna].” Rossi v. State Farm Automobile Insurance Company, 318 Pa.Super. 386, 392, 465 A.2d 8, 11 (1983).

Uninsured motorist benefits will not automatically accrue simply because an uninsured vehicle or driver is involved in an automobile accident. Rather, an uninsured victim will receive uninsured motorist benefits only where that victim cannot recover his or her damages from a standard source and where the recovery of said benefits will further the goal of “maximum feasible restoration.” Such is not the case herein. Appellant is seeking double compensation from Aetna and the defendant insureds by demanding uninsured motorist benefits. We, therefore, find no error in the lower court’s failure to hold that Aetna should provide uninsured motorist coverage for appellant. Thus, we affirm the court’s dismissal of Count II of the complaint.

Order affirmed.

WIEAND, J., concurs in the result.

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

      . “Basic loss benefits” were benefits provided for the "net loss sustained by a victim” and entailed medical expenses, work loss sums, replacement services costs and survivors losses. 40 P.S. §§ 1009.103 and 1009.202.

      . In this situation, of course, the insurance company was still responsible for the insured’s basic loss benefits in addition to the uninsured motorist benefits. 40 P.S. § 1009.204(a)(2).

      . Sec. 1009.204(a)(4) provided that the security for payment of basic loss benefits to an uninsured individual was the "security covering any motor vehicle involved in such accident." It was assumed that this section would cover pedestrians, bicyclists, etc., who did not own or operate a vehicle in Pennsylvania and so were not required to carry no-fault insurance.

      . Sec. 1009.204(a)(5) held that where a victim does not come under any of the preceding paragraphs concerning payment of basic loss benefits, then the applicable security was the assigned claims plan. A typical situation involving the assigned claims plan was where an accident occurred between two uninsured vehicles. Since neither party had any security, they had to apply to the assigned claims bureau, which would assign each claim for no-fault benefits to a participating insurer. It was mandatory under the No-fault Act for each insurer providing basic loss insurance in Pennsylvania to participate in the assigned claims bureau and the assigned claims plan. 40 P.S. § 1009.108.

      . We recognize that not all uninsured individuals are entitled to receive both basic loss benefits and uninsured motorist benefits under the assigned claims plan. For example, we have held an uninsured owner-operator of a motor vehicle, in contrast to the uninsured passenger in Tubner, may not recover uninsured motorist benefits from an assigned claims plan insurer. See Aagesen v. Travelers Cos., 346 Pa.Super. 45, 498 A.2d 1363 (1985); Johnson v. Travelers Ins. Co., 343 Pa.Super. 560, 495 A.2d 938 (1985). We note, however, that whether an uninsured owner-operator may recover uninsured motorist benefits is currently before our court en banc in the cases of Brown v. Travelers Insurance Co., J. E1002/86 and Armstrong v. Pennsylvania Assigned Claims Plan, J. E1003/86.

      . 40 P.S. § 1009.102(a) stated in pertinent part:
      (a) Findings. — The General Assembly hereby finds and declares that:
      ******
      (3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways ... is essential to the humane and purposeful functioning of commerce; ...

      . It is possible that appellant may be eligible for a claim with the assigned claims bureau based on the involvement of the hit-and-run motorist, under Tubner, and he would then be eligible for uninsured motorist benefits from whatever insurer that bureau assigns to handle this claim. Appellant, however, cannot arbitrarily select Aetna to automatically become the assigned risk insurer under the facts of this case.

      . Because the lower court properly sustained Aetna’s demurrer and dismissed Count II of the complaint against Aetna, there is no longer any connection with Montgomery County as required under Pa.R.C.P. No. 1006(c). Therefore, we also affirm the transfer of the remainder of the case to Berks County, the situs of the accident.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    510 A.2d 792
    William L. NELSON by Orrie L. NELSON as His Attorney-In-Fact and Orrie L. Nelson v. John DIBBLE, Individually and d/b/a John “Jack” Dibble Tree Service, Appellant.
    Superior Court of Pennsylvania.
    Argued April 30, 1986.
    Filed May 29, 1986.

      Frank L. Kroto, Jr., Erie, for appellant.
    Edward J. Lucht, Erie, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a final decree of the trial court which granted injunctive relief and declaratory judgment to appellees-plaintiffs, the Nelsons. We must reverse and remand the matter for the reasons herein stated.

The record establishes the following set of facts:

In April, 1984, one of the appellees, Orrie L. Nelson, filed a complaint in equity seeking to enjoin a neighbor, appellant-defendant, John Dibble, from blocking appellees’ use of a certain adjoining roadway. The trial court discharged a Rule to Show Cause why the injunction should not be issued because Orrie L. Nelson lacked standing to bring the lawsuit since he was not the owner of the property. An amended complaint was filed after William Nelson executed a document which gave Orrie Nelson, his father, a power of attorney and a life estate in the subject property.

Subsequently, a hearing was held and the trial court issued the following verbal order, which was later reduced to writing:

THE COURT: Thank you. The Court will enter an Order. I want to give you some idea of what is going to be contained in it so that you, the parties, may be aware. First of all, whether we call this Lavery Lane vacated or abandoned, it is my opinion, at this point at least, that that is a difference without any real distinction. It is now no longer maintained or claimed by the township. The Court finds that there does exist an easement either by the prescriptive use of the plaintiff or as a public road now ignored and this is available to both parties; that neither party may deny the other party use of this easement; neither party may block nor deliberately obstruct the use of the easement by the other party. I’m not going to require that it be maintained or make some ruling on what is passable or impassable. I simply do not have the evidence before me to get into that type of — get in the middle of that type of squabble. However, my ruling should be broadly construed to include neither a negligent nor a deliberate blocking or tearing up or destruction of the easement of the other — of the other party. This would include, of course, parking on it, as has been testified to, or if in fact trucks had been left on the road so as to deny the other person access. The Court would consider that to have been a violation had such an Order existed at the time. That’s about — that’s about as definite as I will get for you at this time. We will draw up something and provide it for you. Make sure that the exhibits that I do not have, the pictures and everything, remain here and that is on the board. We’re all set here. I believe that’s all.
(Court was adjourned.)
(End of transcript.)
N.T. 4/23/84 at 64-65.

This appeal eventually followed.

Appellant frames the issue in the following manner: Whether the trial court erred in granting a preliminary injunction declaring the existence of either a prescriptive easement or an easement by necessity (1) where all the owners of the servient tenements were not parties to the court action, (2) where the road involved is a once declared public road which was owned by the township and which has not been vacated formally, and (3) where the owner of the dominant tenement has other access to his property.

At the outset, we recognize the applicable standard of review which governs this case:

Our scope of review on appeal of a final decree is well settled. The factual conclusions of the Chancellor have the force of a jury verdict and will not be disturbed on appeal unless they are not supported by adequate evidence. Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228 (1978); Nationwide Mutual Insurance Co. v. Walter, 290 Pa.Super. 129, 434 A.2d 164 (1981) . His findings are afforded particular weight in cases in which the credibility of witnesses must be evaluated, as the Chancellor has had the opportunity to hear their actual testimony and to observe their demeanor on the witness stand. See Fascione v. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979). We will not reverse on appeal unless the trial court abused its discretion or committed an error of law. Neshaminy Constructors v. Philadelphia et al., 303 Pa.Super. 420, 449 A.2d 1389 (1982) .

Valley Forge Historical Society v. Washington Memorial Chapel, 330 Pa.Super. 494, 501, 479 A.2d 1011, 1015 (1984), petition for allowance of appeal denied, October 15, 1984.

In this case, because the trial court’s conclusions of law were in error and because the record is incomplete, we must reverse and remand the matter for further proceedings.

The court stated as its first legal conclusion that “whether we call this Lavery Lane vacated or abandoned, it is my opinion, at this point at least, that that is a difference without any real distinction. It is now no longer maintained or claimed by the township.” Notes of Testimony at p. 64. This conclusion was in error because the principle is well-recognized that a “claim of title by adverse possession does not lie against Commonwealth property.” Commonwealth, Department of Transportation v. J. W. Bishop & Co., 497 Pa. 58, 62, 439 A.2d 101, 103 (1981). Similarly, our Courts have held that local governments have immunity from a claim of adverse possession when the land in question is devoted to public use. Zlotucha v. Cziebowicz, 275 Pa.Super. 205, 418 A.2d 684 (1980); Torch v. Constantino, 227 Pa.Super. 427, 323 A.2d 278 (1974).

Additionally, our Supreme Court has commented as follows:

Even privately owned property which has been dedicated to public use is not subject to a claim of title by adverse possession. The land becomes “impressed with a public use; it constitutes a public highway. [It is held] in trust for the people of the Commonwealth.” Conwell v. Philadelphia & Reading Ry. Co., 241 Pa. 172, 174, 88 A. 417, 418 (1913) quoting Delaware, Lackawanna & Western R.R. Co. v. The Tobyhanna Co., 228 Pa. 487, 492, 77 A. 811, 813 (1910). Accord, Keifer Appeal, supra; Graham & Co. v. Pennsylvania Turnpike Comm’n., 347 Pa. 622, 33 A.2d 22 (1943); Western New York & Pennsylvania Ry. Co. v. Vulcan Foundry & Machine Co., 251 Pa. 383, 96 A. 830 (1916); Commonwealth v. Alburger, 1 Whart. 469 (1836); Commonwealth v. McDonald, 16 Serg. & Rawle 389 (1827).

Commonwealth, Department of Transportation v. J.W. Bishop & Co., 497 Pa. at 62, 439 A.2d at 103. (Footnote omitted). Accord (Art. 3, § 32, “The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General Assembly shall not pass any local or special law: ...2. Vacating roads, town plats, streets or alleys____).

The rationale for a rule which intends to favor the public interest over private interests has been set forth by the United States Supreme Court:

“The Government, which holds its interests here as elsewhere in trust for all the people, is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property.”

Commonwealth, Department of Transportation v. J.W. Bishop & Co., 497 Pa. at 64, 439 A.2d at 103 (quoting United States v. State of California, 332 U.S. 19, 39-40, 67 S.Ct. 1658, 1669, 91 L.Ed. 1889, 1900 (1947)).

On this present state of the record, we must remand because the outcome of appellees’ adverse possession claim is linked inextricably with whether title to the subject property is vested in Greene Township.

On remand, the trial court should also grant a hearing on whether certain indispensable parties, i.e., adjoining property owners, should be joined. There is no question in this case that Greene Township could be an indispensable party to this action because appellees’ claim of adverse possession, if granted, could directly affect the interests of Greene Township. .We have outlined the requirements for an indispensable party in the following manner:

In Hartley v. Langkamp & Elder, 243 Pa. 550, 555-56, 90 A. 402, 403 (1914), the Pennsylvania Supreme Court set forth the following general rule:
A party in an equity action is indispensable when he has such an interest that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and good conscience. That is to say, his presence as a party is indispensable where his rights are so connected with the claims of the litigants that no decree can be made between them without impairing such rights.
In Mechanicsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981), the Supreme Court enumerated the following factors which a court should consider in determining whether a party is indispensable:
1. Do absent parties have a right or interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of absent parties?

Borough of Wilkinsburg v. Horner, 88 Pa.Cmwlth. 594, 596, 490 A.2d 964, 965 (1985).

If title was at one time vested in Greene Township, then the Court of Common Pleas was without jurisdiction to grant the preliminary injunction. Id.

The trial court concluded that the issue of whether Greene Township should have been joined was waived because the appellant waited until the trial to raise the issue. We, however, are unable to agree with this waiver theory because the failure to join an indispensable party deprives a court of jurisdiction. Barren v. Dubas, 295 Pa.Super. 443, 441 A.2d 1315 (1982). Additionally, we have said that “when there is a dispute as to the existence of an easement, all owners of servient tenements have a material interest in the controversy and should be joined as defendants, even though such an owner may have had no part in the interference with, or obstruction of, the alleged easement.” Id., 295 Pa.Superior Ct. at 446, 441 A.2d at 1316.

The matter is reversed and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The appellees-plaintiffs are a father, Orrie L. Nelson, and a son, William L. Nelson.


author: WIEAND, Judge:

text:
    510 A.2d 796
    COMMONWEALTH of Pennsylvania v. Augustus COLLIER. Appeal of Thomas INNES, Esquire.
    Superior Court of Pennsylvania.
    Argued April 9, 1986.
    Filed June 3, 1986.

      Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.
    Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

Thomas Innes, Esquire, while representing Augustus Collier, a criminal defendant charged with six robberies, was twice held in contempt of court and fined. He was summarily held in contempt of court during a suppression hearing when he pursued requests for evidence determined by the court to be irrelevant to the suppression issue. Later, during jury selection, he was again held in contempt for his insistence that Collier should be allowed to leave the courtroom to go to the bathroom. Innes was ordered to pay a fine of $500.00 for the first offense and a fine of $100.00 for the second offense. He argues on appeal that the court’s contempt findings were unwarranted. We are constrained to agree. His conduct, if rude and obnoxious, was not contemptuous.

“The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts shall be restricted to the following cases: ... (3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.” 42 Pa.C.S. § 4131(3). This statutory offense “requires proof beyond a reasonable doubt of 1) misconduct, 2) in the presence of the court, 3) committed with intent to obstruct the proceedings, which 4) obstructs the administration of justice.” Commonwealth v. Cameron, 501 Pa. 572, 575, 462 A.2d 649, 650 (1983). See: In re Nugent, 494 Pa. 2, 8, 427 A.2d 1154, 1157 (1980); Commonwealth v. Rubright, 489 Pa. 356, 363, 414 A.2d 106, 110 (1980); In re Cogan, 485 Pa. 273, 281, 401 A.2d 1142, 1146 (1979); Commonwealth v. Garrison, 478 Pa. 356, 371, 386 A.2d 971, 979 (1978); In re Johnson, 467 Pa. 552, 557, 359 A.2d 739, 742 (1976); McMillan v. Mountain Laurel Racing, Inc., 467 Pa. 266, 271, 356 A.2d 742, 745 (1976); Kinter v. Kinter, 348 Pa.Super. 27, 28, 501 A.2d 281, 282 (1985); Commonwealth v. Restifo, 339 Pa.Super. 225, 228, 488 A.2d 633, 635 (1985).

No satisfactory definition of contemptuous misconduct has been developed. Perhaps the best definition is that misconduct is behavior that is inappropriate to the role of the actor____ An attorney engages in misconduct if his behavior is calculated to hinder the search for truth____ Misconduct occurs in the presence of the court if the court itself witnesses the conduct or if the conduct occurs outside the courtroom but so near thereto that it obstructs the administration of justice____ A contemner acts with wrongful intent if he “knows or should reasonably be aware that his conduct is wrongful.” ... An obstruction of justice is a significant disruption of judicial proceedings____ What is required is a showing of actual, imminent prejudice to a fair proceeding or to preservation of the court’s authority____ This danger “must not be remote or even probable; it must immediately imperil.”

Commonwealth v. Garrison, supra 478 Pa. at 372, 386 A.2d at 979 (citations omitted) (emphasis added).

Innes was first held in contempt for conduct occurring during the suppression hearing. There, while questioning a police officer regarding identification statements made by victims of the robberies after having examined photographs, Innes learned that witnesses other than victims had also been shown the same photographic array. The following occurred during defense cross-examination of a police witness:

Q. Who else did you go to?
MR. WILLIAMS: Objection.
THE COURT: Sustained.
BY MR. INNES:
Q. When you went to the other people, did they make identification or not make identification?
MR. WILLIAMS: Objection.
THE COURT: Sustained.
MR. INNES: Judge, that goes to the issue.
THE COURT: No, it doesn’t go to any issue at all. I have ruled on the objection. I will not tolerate any argument. Ask your next question.
MR. INNES: I make a motion for production of those exculpatory statements under Brady versus Maryland.
THE COURT: Why do you want this?
MR. INNES: I would be happy to tell you at side bar with the stenographer.
THE COURT: You tell me now.
MR. INNES: I don’t want to tell you in front of the witness.
THE COURT: You are using this for a discovery proceeding.
MR. INNES: That is not correct, Judge.
THE COURT: I have ruled. Now, sit down and ask your next question.
MR. INNES: That is not correct.
THE COURT: Sit down and ask your next question.
MR. INNES: My motion for the—
THE COURT: Don’t argue any further with me.
MR. INNES: Judge, I will tell you why.
THE COURT: You are not going to tell me anything. Please sit down.
MR. INNES: Judge, I want those pictures. The reason I want those pictures is because if there are other crimes of these same M.O. as this crime in which there are not identifications or on which the people say none of these people in this photo display were the person, then I have a right to get that information to show that Mr. Collier may well not have been involved in these cases as well.
THE COURT: What you are telling me now is you want to do an investigation and you want to use the motion to suppress identification made in six cases in order to do the investigation and find out more about your case. I have suspected that from the very beginning, that you have not in good faith sought a suppression hearing but have used it continually for discovery purposes. I suspected that from the beginning, and now I know it to be so. I am not going to allow you to use this courtroom to do investigation that you think necessary and you want to have done. By your actions so far, you have been in contempt constantly. I will have no more arguing about it, and you will now proceed to the next question. MR. INNES: Well, Judge—
THE COURT: No more arguing.
MR. INNES: If I have been in contempt, I ask the Court to put on the record how I have been in contempt of this court.
THE COURT: I am holding you in contempt. I will have a hearing on this after the trial. Now, in the meantime, you sit here and you ask questions. I will not tolerate any further argument.

(N.T. 1/25/82 at 348-351).

Our examination of this interchange between the hearing judge and defense counsel, as well as those portions of the record which precede and follow the same, fails to disclose contemptuous conduct. There was no basis for finding that counsel intended to disrupt the proceedings or that he did so in fact. “Attorneys have a right to be persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious, when acting in their client’s behalf.” Commonwealth v. Garrison, supra, 478 Pa. at 374, 386 A.2d at 980, quoting In re Dillinger, 461 F.2d 389, 400 (7th Cir.1972). In Commonwealth v. Restifo, supra 339 Pa.Super. at 229-230, 488 A.2d at 635-636, this Court said:

“If a lawyer can be denied the opportunity even to address the court on the subject of what he conceives to be valid objection, it is hard to imagine what part of his function as advocate is left to him.” In the Matter of Nugent, 494 Pa. 2, 7-8, 427 A.2d 1154, 1157 (1980), quoting Edmunds v. Chang, 365 F.Supp. 941, 948 (D.C. Hawaii 1973), rev’d on other grounds, 509 F.2d 39 (9th Cir.1975), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). It is the responsibility of counsel to represent zealously, but with due regard for the dignity of the judicial process, the position of his or her client. Commonwealth v. Rubright, 489 Pa. 356, 364, 414 A.2d 106, 110 (1980). A trial court will not be permitted to stifle an attorney’s advocacy by refusing to allow an objection, and a request intended to perfect the record for subsequent review will not support a conviction for contempt. See and compare: In the Matter of Nugent, supra. Mere affront to the trial judge is not enough. Remarks that are injudicious, or even disrespectful, will not, without more, justify a summary conviction for contempt of court. In the Matter of Campolongo, supra 495 Pa. [627] at 633, 435 A.2d [581] at 584 [(1981)]; Commonwealth v. Garrison, 478 Pa. 356, 373, 386 A.2d 971, 979 (1978). Inappropriate and even ill-mannered conduct which does not obstruct or delay the trial “falls short of that misbehavior which may be punished under [42 Pa.C.S. § 4131(3) ].” Commonwealth v. Rubright, supra 489 Pa. at 364, 414 A.2d at 110. “Judges are supposed to be [persons] of fortitude, able to thrive in a hearty climate. Trial courts ... must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” Commonwealth v. Stevenson, 482 Pa. 76, 96, 393 A.2d 386, 396 (1978) (Manderino, J. dissenting), quoting In the Matter of Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708, 711 (1972).

Assuming, without deciding, that Innes was improperly using cross-examination of a police witness to discover the existence of evidence which was arguably exculpatory, the remedy was, as the hearing court recognized, to sustain objections to questions irrelevant to the suppression issue. It does not follow that counsel’s continued assertion, with legal argument, that he should be allowed to continue his line of inquiry, was intended to obstruct or did obstruct judicial proceedings. Counsel’s conduct did not immediately imperil the fairness of the proceeding or the preservation of the court’s authority.

The second finding of contempt was made during the selection of a jury to try the charges against Collier. When Collier expressed a need to urinate, Innes made a request that he be taken from the courtroom to a bathroom. The following then occurred:

MR. INNES: My client tells me he has to use the bathroom fairly badly at this time.
MR. INNES: I want to say something.
THE COURT: Sit down.
MR. INNES: I think what you are trying to do is intimidate me and trying to intimidate my client not to have me represent him and create—
THE COURT: I want to make, sure this thing is not delayed unnecessarily.
MR. INNES: You are trying to create a rift between me and my client, and I would ask you if you have anything to say about your personal feelings about me, I would ask you to do that at side bar.
■ THE COURT: I won’t do anything at side bar with you. (A short recess was taken.)
THE COURT: First of all, I want this record to show we do not have toilet facilities, nor do we have a room to place the jurors in. The jurors are all out in the hall. In order to allow the man to go to the lavatory, it will mean removing all the jurors, taking him then upstairs, and we will lose considerable time. It has been the practice here that we have a can back here in which the Court Crier allows the person to urinate in the can, and then the Court Crier is the one who removes the can from the courtroom. This is done behind a screen and in complete privacy. It has been done before, and I will allow it to happen now and it should happen now. Did you tell me you are not going to allow your client to urinate there? MR. INNES: My client does not wish to be put through that kind of a disgrace in a courtroom. First of all, it was not a can, it was a styrofoam cup.
THE COURT: Are you telling me you will not allow your client to do that?
MR. INNES: My client says he wishes to go upstairs like a human being and not like an animal into a trough.
THE COURT: What are you telling me, I am instructing your client to use the facilities we have here? We do it all the time and never had a complaint by a lawyer before.
MR. INNES: I am asking Mr. Williams if he has an objection to allowing my client to go upstairs to go to the Men’s Room.
THE COURT: It is not his objection. I am deciding how this is being run.
MR. INNES: In a civilized manner.
THE COURT: Did I understand you said you wouldn’t allow your client to urinate there?
MR. INNES: It is up to my client what he wishes to do. THE COURT: I heard you say this. Is that what you wish?
MR. INNES: I said it is up to my client what he wishes to do.
THE COURT: Did I hear you say you would not allow this to be done?
MR. INNES: I said it is up to my client what he wishes to do.
THE COURT: Ask your client if he wants to urinate?
THE DEFENDANT: I don’t want to use a cup. I want to go up to the Men’s Room upstairs.
THE COURT: I heard you tell your man — you told the Court Officer you would not allow your client to do it.

(N.T. 1/26/86 at 46-51).

It may be that the client’s expressed desire to be allowed to use the bathroom caused inconvenience to the court. Still, the record discloses that the disagreement occurred during a recess. Therefore, it is difficult to find a disruption of judicial proceedings. Moreover and in any event, it seems clear that counsel was not guilty of misconduct that was contemptuous or which was intended to obstruct or destroy the fairness of the trial. Counsel violated neither order nor command of the court. He sought to protect the dignity of his client. We are constrained to hold, therefore, that counsel did not exceed the limits of his proper role. See: Commonwealth v. Garrison, supra (attorney’s conduct in objecting to having client stand to be identified by the jury and asking court if client was “to be flagellated in front of the jury” was held not to be contemptuous because it did not exceed outermost limits of attorney’s role).

The judgments of sentence for contempt are reversed and set aside.

      . While the trial judge did not specify which section of the statute Innes had allegedly violated, it seems clear from the record that section three was the only section having possible application.


text:
    510 A.2d 800
    COMMONWEALTH of Pennsylvania, Appellant, v. Stanley HACKNEY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Filed June 3, 1986.

      Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellant.
    Eugene J. Malady, Upper Darby, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

The sole issue in this appeal by the Commonwealth is whether the trial court erroneously suppressed inculpatory statements made by Stanley Hackney, a seventeen year old, borderline mental retardate, in the absence of his attorney. After having conducted a careful review of the record, we conclude that the order of the trial court was correct and must be affirmed.

When we review an order suppressing evidence, we are bound by the trial court’s findings of fact so long as those findings are supported by competent evidence. Commonwealth v. Brown, 341 Pa.Super. 138, 141, 491 A.2d 189, 190 (1985); Commonwealth v. Williams, 287 Pa.Super. 19, 26, 429 A.2d 698, 702 (1981). The trial court’s findings in the instant case, supported by competent evidence, suggest the following fact pattern.

Hackney was a suspect in a double homicide which had occurred in Darby, Delaware County, on March 13, 1983. A warrant for his arrest was issued on August 16, 1983. Hackney was at that time represented by Joseph Casey, Esquire, a member of the Philadelphia Public Defender’s Office, a fact which was known to investigating members of the District Attorney’s Office in Delaware County. Indeed, Detective Fitzpatrick had on several occasions spoken with Casey and had sought Casey’s cooperation in permitting Fitzpatrick to speak with Hackney during the time when Hackney was an inpatient at The Fairmount Institute, a psychiatric hospital. Hackney was arrested at the hospital on August 17, 1983 at or about 1:35 p.m. Prior to Hackney’s arrest, Casey had told Fitzpatrick that Fitzpatrick should not speak with Hackney unless he, Casey, were present. Casey also prepared a letter for presentation to arresting law enforcement officials. Although hospital personnel attempted to deliver the same to the arresting officers, the latter, after consulting with their superiors, refused to accept the same.

When Hackney was taken to and arrived at the Criminal Investigation Division of the Office of the District Attorney in Delaware County, he handed to Sgt. Minshall a letter as follows:

August 17, 1983
“Gentleman:
I hereby demand that you do not question me. I hereby state to you that I wish to remain silent. I demand the presence of, and prior consultation with my attorney, Joseph M. Casey or another attorney of the Defender Association of Philadelphia or another attorney during any questioning, confrontation and/or any event at which I am entitled by law to the presence of; or consultation with an attorney. I hereby state to you that I object to, any search, seizure, lie detector test or other action to which I may under law object, including any examination. The foregoing is to remain in effect unless and until specifically waived by me in writing in the presence of my present attorney or any attorney who may represent me in the future.”
/S/ STANLEY HACKNEY

Minshall read the letter but did not contact Casey. Instead, he called the District Attorney’s Office, and later the Office of the Delaware County Public Defender. At 2:55 p.m., an assistant public defender, Barbara Scarlata, Esquire, arrived and was informed of the charges against Hackney. Upon leaving, after having spoken with Hackney, Scarlata told the detectives then present that Hackney would not be giving a statement and that he would call her, Scarlata, if he decided to make a statement. Hackney was thereafter arraigned without counsel. After preliminary arraignment, he was not taken to the Delaware County Prison but was returned to the Criminal Investigation Division because, the suppression court found, “they intended to interrogate him and to get a statement from him.” This interrogation was conducted without any attempt to notify Casey, Scarlata, the Delaware County Public Defender, or any other attorney on Hackney’s behalf. Thus, no attorney was present during the ensuing events. Instead, Hackney’s parents were summoned and, upon arrival, were told that their son was involved in a murder, that he had not been the “shooter,” and that if he gave a statement, the District Attorney’s Office would be advised of his cooperation. The parents were then permitted to confer in private with their son for a few minutes.

While they were still conferring, Sgt. Minshall entered the room and inquired whether Hackney intended to give a statement. His parents said that they wanted Attorney Scarlata to be present. Sgt. Minshall conveyed this request to Detective Fitzpatrick. Neither Scarlata, Casey, nor any other attorney was summoned. Instead, Fitzpatrick entered the room where Hackney had been conferring with his parents and read from a card containing Miranda warnings. Mrs. Hackney, the suspect’s mother, had only a ninth grade education; however, she told Fitzpatrick unequivocally that they wanted an attorney. A call was placed to the Public Defender’s Office, which, because of the lateness of the hour, was closed. Hackney and his parents were told that efforts to contact Scarlata had been unsuccessful. The representatives of the District Attorney then proceeded to question Hackney and extract a statement from him.

The statement was tape recorded and later transcribed. At the outset, however, Hackney was again advised of his constitutional rights and asked if he wanted an attorney. When he replied, “Yes,” Fitzpatrick turned off the recorder and embarked upon further discussion with Hackney. The recorder was not restarted, the trial court found, until “Fitzpatrick was satisfied that the Defendant would change his answer and respond ‘no’ to this question.” When, much to Fitzpatrick’s surprise, Hackney again requested an attor-. ney, the recorder was again turned off, and a further “off-the-record conversation” was conducted. Finally, after coaching by the detectives, Hackney was recorded as having responded to a question concerning the need for counsel as follows: “Not yet at the present time.” During the course of the ensuing statement, the tape recorder was turned off on repeated occasions, and the nature of the “off-the-record” discussions does not appear.

On the following day, Hackney was removed from prison by the detectives of the District Attorney’s Office and returned to the Criminal Investigation Division. Fitzpatrick and Detective Martin were present, as were Hackney’s parents. Again, no attorney was present. Hackney made a request for Attorney Scarlata to be present. She was not summoned. Instead, Martin dialed the number of the Office of the Public Defender and thrust the telephone into the hands of Hackney’s father. The identity of the person on the other end of the line, whether he or she was an attorney, and the nature of the conversation was not shown by the Commonwealth’s evidence. Hackney thereafter signed the statement.

On August 23, 1983, Hackney was again taken to the Criminal Investigation Division to explain certain “discrepancies” in his prior statement. Again no attorney was present. Another statement was taken, although once again the recorder was periodically stopped, and there is no record of what was said while it was not functioning.

On August 25, 1983, still without having consulted with counsel, Hackney was taken to the scene of the earlier homicides, where the events surrounding the killings were reviewed with him. On this occasion, however, no formal statement was taken.

The trial court concluded that Hackney had not voluntarily and knowingly waived his right to counsel and ordered the suppression of all statements which Hackney had made. If a defendant indicates in any manner at any time prior to or during questioning that he wishes to remain silent or wants an attorney, interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 444-445, 86 S.Ct. 1602, 1612,16 L.Ed.2d 694, 707 (1966). See also: Commonwealth v. Scarborough, 491 Pa. 300, 313, 421 A.2d 147, 153 (1980). That Hackney indicated his desire to have counsel present, not only once but repeatedly, is clear, and the suppression court so found. Although conceding Hackney’s repeated requests for counsel, the Commonwealth argues that in time he changed his mind and waived the right to counsel. However, the law is clear that “when an accused has invoked his right to have counsel present during interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights____ [A]n accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378, 386 (1981), reh’g denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). See also: Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984); Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982).

It is the Fifth Amendment protection against compelled self-incrimination which provides the right to counsel during custodial interrogation. After arraignment, the right to counsel during interrogation is provided also by the Sixth Amendment guarantee of the assistance of counsel. “The arraignment signals ‘the initiation of adversary judicial proceedings’ and thus the attachment of the Sixth Amendment ...; thereafter, [law enforcement] efforts to elicit information from the accused, including interrogation, represent ‘critical stages’ at which the Sixth Amendment applies.” Michigan v. Jackson, — U.S. —, —, 106 S.Ct. 1404, 1407-1408, 89 L.Ed.2d 631, 638 (1986) (citations omitted). See also: Maine v. Moulton, 474 U.S. —, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).

In the instant case, the conduct of detectives employed by the District Attorney’s Office is difficult to comprehend, much less to excuse. They were told repeatedly by Hackney that he did not intend to give a statement without first speaking to an attorney. After Hackney had been visited by a Public Defender, she also told the detectives that Hackney would not make a statement and, if Hackney changed his mind, he would call her, the Public Defender. Despite knowledge that Hackney was not to be interrogated in the absence of counsel, the detectives employed by the District Attorney returned Hackney to their office following arraignment so that, in the absence of counsel, they could in time elicit a statement from him. Hackney continued to ask for an attorney. His parents also requested the presence of counsel. The requests for counsel were ignored. Hackney was thus worn down and ultimately made a statement without the presence or advice of counsel. On the following day, he was brought from prison, at the instance of the District Attorney’s Office, to make additional statements. On none of these occasions did Hackney initiate the communication or conversation. On no occasion was counsel notified of the interrogation or allowed to be present.

It was the type of conduct indulged in by law enforcement officers in this case which the United States Supreme Court condemned and, by prophylactic rule, sought to prevent in Edwards and Smith and also in Jackson. To reverse the suppression order here entered would be, in view of the trial court’s findings, to signal our refusal to apply the protections afforded by the Fifth and Sixth Amendments of the Constitution as interpreted by the highest court in the land. This we cannot and will not do.

The Commonwealth argues that we should limit narrowly the holdings in Edwards and Smith and hold that Hackney voluntarily waived his right to counsel by recorded statements that he did not need an attorney “at this time.” To this end, the Commonwealth cited to us at argument the decision of the Pennsylvania Supreme Court in Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986). The Commonwealth’s argument evidences a misconception regarding Hubble and a demonstrable inability to comprehend Edwards and Smith. In Hubble, the Supreme Court of Pennsylvania held that the defendant, who previously had voluntarily answered inquiries of police without being in custody, had failed to invoke clearly and unambiguously his right to counsel when he was interrogated custodially. In the instant case, the Commonwealth did not argue in the trial court and has not argued in this Court that Hackney failed to make an unambiguous request for counsel. Its argument, rather, was and is that irrespective of police misconduct which preceded it, Hackney’s induced statement that he did not want an attorney constituted absolution of law enforcement agents and rendered his statement admissible.

Edwards and Smith, as we have seen, interpret the Fifth Amendment to require that law enforcement agents, after the right to counsel has been invoked, refrain from interrogating a suspect in custody until counsel has been made available. Following arraignment, moreover, the Sixth Amendment guarantees an accused the right to rely on counsel as a medium between him and the State. Michigan v. Jackson, supra — U.S. at —, 106 S.Ct. at 1407-1408, 89 L.Ed.2d at 638-639; Maine v. Moulton, supra — U.S. at —, 106 S.Ct. at 479, 88 L.Ed.2d at 492.

In the instant case, the trial court found that Hackney’s Fifth Amendment guarantee against self-incrimination had been abridged by law enforcement personnel. The evidence supports the trial court’s findings. The same findings demonstrate that Hackney’s Sixth Amendment right to counsel was also violated. Police refusals to provide counsel despite repeated requests for counsel, made by appellee, by his parents, and by the public defender who interviewed him, require the suppression of statements thereafter made. Hackney could not be deprived of the right to counsel by the conduct indulged in by law enforcement agents in this case.

Order affirmed.

      . Hackney had an IQ of 65 and a mental age of 9.5 years. He suffered from mood depressions with psychotic features.

      . These rights had been read to Hackney alone on several prior occasions.


text:
    510 A.2d 804
    Susan KARIS, Appellant v. Gerald KARIS.
    Superior Court of Pennsylvania.
    Argued Feb. 6, 1986.
    Filed June 9, 1986.

      Edward R. Sutton, Trevose, for appellant.
    Darrell M. Zaslow, Langhorne, for appellee.
    Before WICKERSHAM, McEWEN and JOHNSON, JJ.
   WICKERSHAM, Judge:

Susan Karis appeals from the order of the Court of Common Pleas of Philadelphia County granting Gerald Karis’s petition for shared custody of their son Christopher Karis.

Appellant and appellee separated in February 1982, after approximately nine years of marriage. Their only child Christopher was born on December 15, 1977. After the separation, Christopher continued to reside with appellant in the marital home. Appellee moved into the home of his mother and sister a few miles away. In May 1982, appellant filed a divorce action against appellee, in which she requested, inter alia, custody of Christopher. On September 16, 1982, a temporary order was entered, granting appellant primary custody, and appellee partial custody every other weekend and every Wednesday night.

On October 3, 1983, the lower court entered an order for joint custody by agreement of the parties. Primary physical custody remained with appellant during the school year, with partial custody being permitted to appellee every other weekend and each Wednesday night, and during the bulk of the summer. With some minor modifications, the parties abided by this order. On October 16, 1984, however, appellee filed a petition to modify the custody order, on the basis that he wanted more time with his son and Christopher had expressed a desire to spend more time with him.

Following a lengthy hearing in April 1985, the lower court entered an order on May 10, 1985, which stated, in significant part, that physical custody of Christopher would alternate between the parties every four months, with partial custody in the non-custodial parent every other weekend. It is from this order that appellant filed this timely appeal.

Appellant raises five issues before us:

I. Should appellant’s motion to dismiss in the Court below have been granted?
II. Should the passage of one and one-half years be adequate to require a review by the lower Court of the child’s best interests?
III. Should the appellant’s pregnancy by other than her husband and ultimate desire to marry the father of the child, without further evidence, be adequate to sustain a modification of the prior custody arrangement?
IV. Did the child subject to the custody proceedings express'a reasoned preference for any alteration in the custody arrangement?
V. Did appellee present sufficient evidence to establish that the custody modification sought by way of his Petition was in the child’s best interest?

Brief for Appellant at 5.

Recently, this court summarized our scope of review in child custody cases:

The appellate court’s scope of review in custody cases is of the broadest type. This broad power is limited to the extent that an appellate court may not nullify the fact finding function of the hearing judge. We are empowered to form our own independent deductions and inferences from the facts found by the hearing judge, but may only interfere with the decisions of the hearing court where there has been a gross abuse of discretion. We must determine whether the trial court’s factual findings support the trial court’s factual conclusions, but we may not disturb these conclusions unless they are unreasonable in light of the court’s factual findings. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).
Our appellate function is to make an independent judgment, based on the testimony and evidence before us, that is in the best interest of the child. Commonwealth ex rel. Holschuh v. Holland-Moritz, 488 Pa. 437, 292 A.2d 380 (1972). We must make an independent examination of the record and make an order on the merits of the case which is right, just and will serve the best interest of the child. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977). Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974). “After we take full account of the hearing judge’s reasoning, still, we must be easy in our own conscience that the judge’s award will serve the best interest of the child, or children, in question.” Trefsgar v. Trefsgar, 261 Pa.Super. 1, 9, 395 A.2d 273, 277 (1978) (Spaeth, J., concurring).
Although we are given a broad power of review, we are constrained by an abuse of discretion standard when evaluating the court’s order. An abuse of discretion is not merely an error of judgment, but if the court’s judgment is manifestly unreasonable as shown by the evidence of record, discretion is abused. Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). An abuse of discretion is also made out where “[i]t appears from a review of the record that there is no evidence to support the court’s findings or that there is a capricious disbelief of evidence.” In re Masciantonio’s Estate, 392 Pa. 362, 367, 141 A.2d 362, 365 (1958). Miller v. Mifflin County Industrial Development Authority, 319 Pa.Super. 188, 465 A.2d 1293 (1983).

Murphey v. Hatala, 350 Pa.Super. 433, 439, 504 A.2d 917, 920 (1986).

We find the first issue to be the most troublesome because it appears to be one of first impression in our appellate courts. Prior to the April 1985 hearing, appellant unsuccessfully moved to dismiss appellee’s petition for modification on the basis that appellee had alleged no substantial change of circumstances. Appellant renews that argument here. Appellee contends that no change of circumstances need be shown for the court to modify a custody order to an order of shared custody.

In Agati v. Agati, 342 Pa.Super. 132, 492 A.2d 427 (1985), our court was faced with the issue of whether a substantial change of circumstances is the legal standard to apply when a petition is heard for modification of a partial custody order. It is well-settled that a substantial change of circumstances must be shown before a total change of custody can be considered. See, e.g., Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155 (1985); Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). The Agati court reasoned that the same standard should be applied to petitions for modification of partial custody. The court concluded that “the clear requirement of change of circumstance prior to application of best interest is necessary to avoid the uncertainty and instability that a best interest test alone would provide.” Id. 342 Pa.Super. at 141, 492 A.2d at 432.

One possible conclusion to draw from an extension of Agati is that all petitions for modification of custody or partial custody, including a request for shared custody, must first meet the substantial change of circumstances test. See Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985) (in reaching issue of whether mother’s petition for expanded partial custody, in effect, shared custody, was properly denied, trial judge of necessity must have considered whether there had been a substantial change of circumstance requiring or permitting a change in prior custody order). As in Constant A., the petitioner in Agati sought an extensive increase in partial custody to, in effect, obtain shared custody of the child under the Custody and Grandparents Visitation Act, 23 P.S. § 1001 et seq. We find this conclusion to be consistent with the reasoning expressed by the Agati court.

Section 1011 of the above Act, 23 P.S. § 1011, states:

§ 1011. Modification of existing custody orders
Any order for the custody of the child or children of a marriage entered by a court in this Commonwealth or any state may ... be modified at any time to an order of shared custody in accordance with the provisions of this section.

Section 1005 of the Act, 23 P.S. § 1005, enumerates circumstances when an award of shared custody may be made by the court.

§ 1005. Award of shared custody
An order for shared custody may be awarded by the court when it is in the best interests of the child or children and: •
(1) upon application of one or both parents;
(2) when the parties have agreed to an award of shared custody; or
(3) in the discretion of the court.

Appellee argues that section 1011 means that where a petitioner seeks to modify an existing custody order to an order of shared custody, no substantial change of circumstances need be shown. Rather, a custody order may be modified at any time to one of shared custody. Appellee points to the intent of the legislature to allow both parents shared access to their children), as expressed in section 1002 of the Act, 23 P.S. § 1002:

§ 1002. Policy and purpose
The General Assembly declares that it is the public policy of this Commonwealth, when in the best interest of the child or children, to assure a reasonable and continuing contact of such child or children with both parents after a separation or dissolution of marriage, and the sharing of the rights and responsibilities of child rearing by both parents.

A careful reading of these sections of the Act however, combined with the caselaw, leads us to conclude that appellant’s position is the correct one. In interpreting a statute, a court must ascertain and effectuate the intention of the legislature. Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 464 A.2d 431 (1983); 1 Pa.C.S. § 1921(a). Here, the legislative intent is expressly provided by 23 P.S. § 1002. The policy of the legislature clearly encourages shared custody, when in the best interest of the child. As we noted in In re Wesley J.K., 299 Pa.Super. 504, 514-15, 445 A.2d 1243, 1248 (1982):

Although shared custody in appropriate circumstances is desired, under the [Custody and Grandparents Visitation Act] there is no presumption favoring shared custody. Such a presumption would demand shared custody unless one party could rebut the presumption. The presumption-free law permits the lower court to engage in a full, fair and comprehensive examination of the best interests of the child. It does not place an unreasonable burden on a long-time custodial parent to defend the status quo.

See also Smith v. Smith, 307 Pa.Super. 544, 453 A.2d 1020 (1982).

While the court should examine a shared custody arrangement if in the best interests of the child, we cannot believe that the legislature intended that the standards necessary for modification of custody orders should vary, depending on whether the petitioner seeking modification requests sole custody, partial custody, or shared custody. This is particularly true when “partial custody” and “shared custody” very often in reality amount to the same or similar blocks of time. For example, in both Constant A., supra, and Agati, supra, the petitioners filed petitions for modification of partial custody to, in effect, give them shared custody. The identical situation is presented in the instant case where appellant filed for modification under the same provisions of the Custody and Grandparents Visitation Act.

We can distinguish no difference between the procedural position of appellant in the instant case and the petitioners in Constant A. and Agati. It is inconceivable to us that the legislature intended to allow a party to petition for modification of custody without showing substantial changed circumstances since the prior order, simply by pleading the magic words “shared custody.” Such a situation would spawn multiple, spurious petitions based on temporary or vacillating circumstances, or frequent relitigation of issues already resolved, a result the Agati court found abhorrent. We find it illogical to require a substantial change of circumstance standard for a total change of custody or a partial change of custody while permitting review of a change of partial custody to shared custody on a best interest standard. We interpret section 1011 of the Act to simply mean that the option of shared custody, under the proper circumstances, is always available to the court, no matter what the preexisting order was. But the petitioner must still prove, as in any custody modification request, a substantial change of circumstances before the court can consider the petition.

Having determined that appellee was required to show a substantial change of circumstances when he requested an order of shared custody, we now turn to appellant’s remaining issues. We must agree with appellant that the passage of one and one-half years, by itself, is not an adequate reason for review of a custody order. See Agati, supra 342 Pa.Super. at 142, 492 A.2d at 432 (petitioner who sought review of partial custody order on basis of passage of one and one-half years of time from original order and child’s resultant change in age, failed to establish substantial change of circumstances to warrant modification of order). If mere passage of time were a sufficient reason to request modification, a child could be unnecessarily subject to countless custody petitions during his minority.

Likewise, we are not convinced that appellant’s pregnancy by her boyfriend, whom she intended to marry once their divorces were final, in and of itself, was a substantial change of circumstance. Granted, appellant’s household would include another child, which would undoubtedly bring added costs and responsibilities to appellant. But the record does not show any ill effect that this might have upon Christopher. Appellant had no doubt that she could successfully love and raise both Christopher and his new brother or sister. There was testimony by several witnesses, including Christopher himself, that he liked his mother’s boyfriend and that he was excited about the prospect of a sibling and was looking forward to the birth of the child. There was no evidence that he felt threatened or otherwise was being ignored or poorly treated as a result of his mother’s non-marital relationship or upcoming delivery.

It is clear that the mere existence of such a non-marital relationship is insufficient in and of itself to effect a modification of custody order. Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983). Rather, it is the effect of that non-marital relationship on the child which is crucial. Bresnock v. Bresnock, 346 Pa.Super. 563, 500 A.2d 91 (1985); Haag v. Haag, 336 Pa.Super. 491, 485 A.2d 1189 (1984). If the evidence shows that the parent's conduct does not adversely affect the child, it should have little weight in making a custody decision. In re Custody of Pearce, 310 Pa.Super. 254, 456 A.2d 597 (1983); In re Wesley J.K., supra. Since no evidence was presented to suggest that this relationship or the upcoming delivery in any way negatively impacted on Christopher (other than the remote possibility that he might have to share his bedroom with the baby once it grew older, if it was a boy) or that these factors reflected poorly on appellant’s ability to properly care for and nurture Christopher, it was inappropriate for them to have formed the basis for a modification of the custody order.

Similarly, we are reluctant to consider Christopher’s expressed desire to spend more time with his father as a substantial change of circumstance. After reading the child’s testimony closely, we think the lower court accurately summed up his testimony as a desire to split the year in half so he could be with each parent the same amount of time. See Lower ct. op. at 4. In order to achieve that goal, he would have to spend more time with appellee. His testimony was consistent with the testimony of the family therapist who stated that Christopher loved and wanted to please both parents.

Christopher was seven years old at the time of the hearing. Certainly he was entitled to have his preferences heard. But the expression by a child of a preference for custodial parent, although a factor to be considered, is not controlling. Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984); K.L.H. v. G.D.H., 318 Pa.Super. 330, 464 A.2d 1368 (1983).

Accordingly, after our review of the record and the lower court’s reasons for modifying custody, we are compelled to find that appellee failed to demonstrate a change in the parties’ circumstances sufficient to require a modification of the lower court’s original custody order entered in October 1983. Because appellee failed to demonstrate a substantial change in circumstances, the lower court abused its discretion in going further and examining the best interests of the child. See Agati v. Agati, supra; Burr v. Morgart, supra; Hartman v. Hartman, supra.

Order reversed.

      . As far as we can ascertain from the record, the divorce action is still pending in the lower court.

      . Pa.R.C.P. No. 1915.1(b) defines custody, partial custody, and shared custody as the following:
      "custody” means the legal right to keep, control, guard, care for and preserve a child and includes the terms "legal custody,” "physical custody," and "shared custody,”
      "partial custody” means the right to take possession of a child away from the custodial person for a certain period of time;
      “shared custody” means shared legal or shared physical custody or both of a child in such a way as to assure the child of frequent and continuing contact, including physical access, to both parents[.]

      . We find it unnecessary to address the fifth issue raised by appellant because of our resolution of this case.


text:
    510 A.2d 810
    David BURNS and Diane Burns, v. H/W PEPSI-COLA METROPOLITAN BOTTLING COMPANY and Pepsico, Inc. and Pepsi-Cola Metropolitan Bottling Group, Inc. and Kenneth L. Bello, T/A K.L. Bello Mobile Lunch Service. Appeal of PEPSI-COLA METROPOLITAN BOTTLING COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1986.
    Filed June 9, 1986.

      Charles J. Bogdanoff, Philadelphia, for appellant.
    Steven E. Wolfe, Holland, for Burns, appellees.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WICKERSHAM, Judge:

Pepsi-Cola Metropolitan Bottling Company appeals from the judgment entered against it and in favor of appellees, David and Diane Burns, by the Court of Common Pleas of Bucks County.

Appellee David Burns ingested glass particles contained in a bottle of Pepsi-Cola soft drink purchased from a lunch truck at his place of work on June 22, 1981. Appellee was hospitalized on several occasions subsequent to this incident because of medical problems which developed from the passage of the glass particles through his digestive system, including gastrointestinal pain and rectal bleeding. He was later treated by a psychologist for symptoms of post-traumatic stress disorder.

Appellees instituted the instant action seeking recovery for the physical and psychological injuries sustained by David arising from the glass ingestion incident and for Diane’s loss of consortium. The jury awarded damages to David Burns in the amount of $8,662.35 for medical expenses, $644.00 for lost wages, and $15,000.00 for pain and suffering. Diane Burns received $15,000.00 for loss of consortium.

Appellant timely filed this appeal to our court. It presents five issues for appellate review. After a thorough review of the record, the briefs of the parties and the pertinent caselaw, we conclude that appellant’s issues three,’ four, and five have been succinctly and accurately addressed by Judge Leonard B. Sokolove in his opinion dated June 11, 1985, and require no further elaboration here. We therefore address only appellant’s remaining issues below.

Initially, we turn to appellant’s first issue. Appellant here argues that a new trial or remittitur is warranted because the trial court improperly excluded evidence of appellee Diane Burns’ heroin addiction and an alleged extramarital affair as not relevant to her loss of consortium claim. In the alternative, appellant contends that the lower court abused its discretion in refusing to award a new trial or remittitur below, in light of an excessive jury award for Diane’s loss of consortium. We cannot, however, discern any merit in either argument.

First, with regard to appellant’s primary argument regarding the exclusion of evidence of Diane Burns’ drug use and alleged extra-marital affair, we must agree with the trial court that this evidence was irrelevant to disproving appellee’s loss of consortium claim.

In this Commonwealth, loss of consortium has been recognized as a

right growing out of the marriage relationship which the husband and wife have respectively to the society, companionship and affection of each other in their life together. As thus defined and limited, any interference with this right of consortium by the negligent injury to one spouse, should afford the other spouse a legal cause of action to recover damages for that interference.

Leo v. Bottman, 40 Wash. Co. 105, 108-09 (Pa.1960). The right to recover for loss of consortium springs from the English common law and once extended solely to a husband’s recovery for the loss of service rendered to him by his wife. That right was later expanded in this country to include a wife’s recovery for the loss of services rendered by her husband. Pennsylvania law originally followed the common law rule, but acknowledged a wife’s right to recover damages for the loss of her injured husband’s services under a loss of consortium theory in Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973), aff'd, 457 Pa. 90, 320 A.2d 139 (1974). Under Hopkins, those services which may be compensated for in damages by either spouse are: “whatever of aid, assistance, comfort, and society [one spouse] would be expected to render or bestow upon [the other], under the circumstances and in the condition in which they may be placed.” Id., 224 Pa.Superior Ct. at 117, 302 A.2d at 856.

It is clear from the above, that a consortium claim is grounded on the loss of a spouse’s services after injury. In calculating the extent of the deprivation to the spouse claiming loss of consortium and disruption to the family life caused by the loss of those services normally performed by the injured spouse, certainly the parties’ interpersonal relationships and the state of their marriage immediately before the injury is helpful in calculating any loss sustained after it, and is therefore relevant. In the instant case, however, Diane Burns’ earlier drug dependency, which was no longer a source of tension in the marriage, was not relevant to the issue of what services she lost from David after his injury. As found by the trial judge, inferences that Diane Burns engaged in drug use would go only toward proving her character, which was not, a concern in determining what loss of consortium she suffered.

Similarly, Diane Burns’ alleged 1978 extra-marital affair was irrelevant as too remote in time to David’s injury to possibly prove that marital problems existed immediately before the glass ingestion incident. The alleged “affair” was based on David Burns’ statement contained in Eugenia Hospital records that he had found his wife in bed with another man on a single occasion fully three years before his injury. Since appellant could not show how this alleged incident, significantly removed in time from the date of David Burns’ injury, would possibly diminish Diane’s loss of his services, we do not believe the trial judge improperly excluded that evidence. Nor do we accept appellant’s “back-door” argument that evidence of the alleged indiscretion should have been admitted for the limited purpose of impeachment. We therefore find appellant’s primary argument in support of its first issue to be wholly without merit.

We are also compelled to dismiss its alternative argument that the jury’s verdict for loss of consortium was excessive. In evaluating an argument that a verdict is excessive, it is clear that each case is to be decided accordingly to its unique facts and circumstances. Fretts v. Pavetti, 282 Pa.Super. 166, 422 A.2d 881 (1980). Moreover, the granting or denial of a new trial on this ground is within the discretion of the trial court and will not be reversed, absent a clear abuse of discretion. Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super. 386, 473 A.2d 120 (1984). Our court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice. Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982). Only if that standard is met may we substitute our judgment for that of the jury which heard and evaluated all the evidence at trial, and that of the trial judge who reviewed the size of the verdict. See Krupa by Krupa v. Williams, 316 Pa.Super. 408, 463 A.2d 429 (1983).

Being mindful of these guidelines, we can find no grounds for the grant of a new trial or remittitur based upon the verdict rendered in the instant case. Consortium is an element of damages which has no market value and the amount to be awarded for its loss is particularly for the common sense and sound judgment of the jury. See Mueller v. Brandon, 282 Pa.Super. 37, 422 A.2d 664 (1980). In determining whether the jury’s award is shocking in this case, we look at its unique facts and review the extent of deprivation to Diane Burns and the disruption to the Burns’ family life caused by the loss of those services performed by David. See Reuter v. United States, 534 F.Supp. 731 (W.D.Pa.1982) (applying Pennsylvania law).

In the instant case, appellee David Burns presented compelling testimony as to the severe negative effects the glass ingestion incident had upon his marriage. He testified to the changes which occurred in the couple’s previously happy marital relationship because of his mood swings, idiosyncratic eating habits, and refusal to have sexual relations with Diane for a year after the incident. N.T. 97-103, 9/22/83. He further testified to the significant disruption his condition caused with regard to his inability to assist Diane with co-parenting their young child. N.T. 99-100, 9/22/83.

Appellant argues that appellee Diane Burns’ recovery was nonetheless unsupported by the evidence since she did not testify at trial. Appellant, however, does not cite any authority to support this assertion and our own research has not revealed any legal precedent to that effect in this jurisdiction. While it is true that in most cases the spouse seeking damages for loss of consortium has in fact testified, there is no language in any of those cases which we have reviewed which mandates that he or she do so. See, e.g., Griffin v. Ensign, 234 F.2d 307 (3d Cir.1956); Monaghan v. Uiterwyk Lines Ltd., 607 F.Supp. 1020 (E.D.Pa.1985); Reuter v. United States, supra; Barnes v. United States, 516 F.Supp. 1376 (W.D.Pa.1981), aff'd in part, 678 F.2d 10 (3d Cir.1982), aff'd, 685 F.2d 66 (3d Cir.1982); Karle v. National Fuel Gas Distribution Corp., 448 F.Supp. 753 (W.D.Pa. 1978); DeMarines v. KLM Royal Dutch Airlines, 433 F.Supp. 1047 (E.D.Pa.1977), rev’d on other grounds, 580 F.2d 1193 (3d Cir.1978); Brown v. Philadelphia Transportation Co., 437 Pa. 348, 263 A.2d 423 (1970); Thompson v. Anthony Crane Rental, Inc., supra; Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983); Hopkins v. Blanco, supra.

Furthermore, this court has permitted a verdict for loss of consortium to stand, absent the testimony of the wife-claimant in Thompson v. Anthony Crane Rental, Inc., supra, where the jury awarded $150,000 to the wife for loss of consortium, apparently based only on the testimony of her husband and their daughter. Id. 325 Pa.Super. at 400, 473 A.2d at 127. Finding no requirement that the spouse seeking to recover for loss of consortium must testify to support such a claim if it is otherwise borne out by substantial evidence from other sources, in light of the record in this case, we can perceive no abuse of discretion in the lower court’s denial of a new trial or remittitur.

We now turn to appellant’s second issue regarding the lower court’s failure to instruct the jury with the requested maxim “falsus in uno, falsus in omnibus,” i.e., if a witness fully and corruptly swears falsely to any material fact in a case, the jury may disregard all of that witness’ testimony. See Luckenbach v. Egan, 418 Pa. 221, 210 A.2d 264 (1965); Commonwealth v. Levenson, 282 Pa.Super. 406, 422 A.2d 1355 (1980). Such an instruction has been criticized in the following terms:

It may be said, once for all, that the maxim is in itself worthless; — first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in the others it is absolutely false as a maxim of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore it is a superfluous form of words. It is also a practice pernicious, first because there is frequently a misunderstanding of its proper force, and secondly, because it has become in the hands of many counsel a mere instrument for obtaining new trials upon points wholly unimportant in themselves.
Wigmore, Evidence § 1009 at 982 (Chadbourn rev. 1970) (footnotes omitted).

Commonwealth v. Levenson, 282 Pa.Super. at 415-16, 422 A.2d at 1360.

The propriety and necessity of giving the instruction has been repeatedly questioned by our court in criminal cases. See, e.g., Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984); Commonwealth v. Carey, 293 Pa.Super. 359, 439 A.2d 151 (1981); Commonwealth v. Levenson, supra; Commonwealth v. Parente, 184 Pa.Super. 125, 133 A.2d 561 (1957), aff'd, 392 Pa. 48, 139 A.2d 924 (1958). In Commonwealth v. Parente, id., 184 Pa.Superior Ct. at 132, 133 A.2d at 564, our court stated:

The maxim has been limited, qualified, criticized, and, in a sense, rejected by both authors and courts, so that what remains might be stated thus: When a fact finding body concludes that a witness has deliberately falsified in his testimony on a material point this should be taken into consideration, along with many other tests, in determining what credence should be given to the balance of his testimony.

See also Commonwealth v. Padgett, 428 Pa. 229, 237 A.2d 209 (1968); Subcommittee Note, Proposed Pa. Stand. Jury Instructions Criminal § 4.15 (Subcommittee Draft, Dec. 18, 1972) (continuing validity of charge in doubt).

In the instant case, the trial court could properly find that the instruction was irrelevant, see Lower ct. op. at 15, because there was no indication of deliberate falsehood by any of appellees’ witnesses. See Commonwealth v. Maute, supra. Before the maxim is applicable, the falsehood must be “wilful and corrupt” rather than mere contradiction or self-contradiction. See Commonwealth v. Parente, supra, 184 Pa.Super at 131, 133 A.2d at 564. After careful examination of the testimony cited to us by appellant, we do not believe that any testimony has been indicated which would warrant the instruction under this standard.

Whether the jury should be instructed on a given point of law depends upon the facts and the issues in the case, Ferrick Excavating and Grading Co. v. Senger Trucking Co., 506 Pa. 181, 484 A.2d 744 (1984), and only issues which are relevant to the pleadings and proof may become the subject of jury instructions. Perigo v. Deegan, 288 Pa.Super. 93, 431 A.2d 303 (1981). A point for charge which is not precisely applicable to facts in the case may be properly excluded. Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984). Having reviewed the jury charge concerning credibility, N.T. 18-19, 9/30/83, we find that the trial court did not err in refusing to give appellant’s instruction, and adequately instructed the jury with regard to witness credibility. See Commonwealth v. Maute, supra.

Therefore, for the reasons enumerated above, the judgment of the lower court is affirmed.

The judgment is affirmed.

      . Those issues are as follows:
      1. Is a new trial or remittitur mandated where the trial court erroneously held that evidence of a spouse’s heroin addiction and extra marital affair was not relevant to the parties’ loss of consortium claims?
      2. Did the trial court commit reversible error when it failed to charge the jury concerning willful falsehood when the plaintiff-husband’s lack of veracity was demonstrated to the jury on more than one occasion?
      3. Did the trial court commit reversible error when it refused defendant’s requested instructions that the jury be told they should not allow sympathy to enter into their deliberations?
      4. Did the trial court commit prejudicial error when it limited the scope of the defendant’s cross-examination, made inconsistent evidentiary rulings and refused to allow defendant to cross-examine the plaintiff’s expert concerning medical records he earlier testified that he relied on in forming his opinion?
      5. Is a new trial mandated where the trial court erroneously charged the jury concerning damages for future pain and suffering when no evidence was presented to support such a charge?
      Brief for Appellant at 3.

      . David Burns’ statement that he had found his wife in bed with another man in an isolated incident did not actually conflict with his later statement at trial that he only "assumed" his wife was having a continuing extra-marital affair with “somebody else." N.T. 96, 9/22/83. Moreover, the truth or falsity of the former statement, as noted by the trial court, "would be extremely difficult to ascertain.” Lower ct. op. at 13.

      . Diane Burns was apparently scheduled to testify as a fact witness, see N.T. 163, 9/27/83, but was not called.