author: ROBERTS, Judge: POPOVICH, Judge,

text:
    518 A. 2d 307
    COMMONWEALTH of Pennsylvania v. Nathaniel WEST, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1985.
    Filed Nov. 12, 1986.

      Thomas Bruno, II, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and ROBERTS, JJ.
   ROBERTS, Judge:

This is an appeal from a judgment of sentence for first-degree murder and related offenses. At closing argument, the prosecutor told the jury “if you acquit, (these defendants) go never to come back ..., never to have to answer again, (but) ... if you convict ... there are appeals and there may be reversals ... ”. Because this argument improperly urged upon the jury a bias in favor of conviction, appellant was denied his right to a fair trial. Accordingly, we vacate the judgment of sentence and remand for a new trial.

Appellant and his co-defendant, Derrick Simmons, were charged with homicide, conspiracy and possession of an instrument of a crime in the November, 1979 stabbing death of William Grant Johnson. Michele Williams, who was 14 years old when the stabbing occurred, testified for the Commonwealth that she watched from the front door of her house as across the street appellant, his co-defendant and possibly others, stabbed Johnson. Appellant introduced the conflicting testimony of Aliene Freeman, who said that she saw the victim, already stabbed, stagger from the corner of Ms. Williams’ street to the front of her residence. Appellant also introduced two alibi witnesses, who testified that they were with appellant at his mother’s funeral when the stabbing was alleged to have occurred.

During closing argument at their July, 1983 trial, the prosecutor told the jury

if you acquit both these gentlemen, they go never to come back, never to see this charge and never to have to answer again. This is final. If you convict them of first-degree murder or a lesser degree depending upon your own view and based on the evidence, of course, there are appeals and there may be reversals later on because of evidentiary problems....

The trial court immediately interrupted the prosecutor’s closing, saying: “Excuse me, Mr. McGill (the prosecutor). I really do think that you ought to add that the implications of a verdict should play no role in their reaching a verdict.” The court’s remarks clearly were directed to the prosecutor, not to the jury.

After the prosecutor completed his closing argument, both defendants objected at side bar to his statement that their convictions could be reversed on appeal. The trial court agreed that the statement was improper, telling the prosecutor that “you can’t tell them (the jury) that if you find these people not guilty, they are going to be set free, which is what you said.” It held, however, that its interruption cured whatever prejudice the remark caused.

The issue which these facts squarely present is the propriety of prosecutorial argument to the jury that an acquittal is final while its decision to convict may be reversed on appeal. Appellant contends that the argument “wrongly indicate(s) to the jurors that if they have any doubt, to find the defendants guilty so that an appellate court can dispose of the matter.” The Commonwealth dismisses the remark as a “parenthetical reference to a defendant’s right to appeal.”

Our courts have consistently recognized the impropriety of a prosecutor’s reference to the consequences of the jury’s verdict. In Commonwealth v. Floyd, 506 Pa. 85, 94-95, 484 A.2d 365 (1984), the Supreme Court vacated a death sentence where the prosecutor commented upon the appellant’s chances for parole if he was given a sentence of life imprisonment. See also Commonwealth v. Aljoe, 420 Pa. 198, 207-8, 216 A.2d 50 (1966), Commonwealth v. Earnest, 342 Pa. 544, 551, 21 A.2d 38 (1941). Similarly, in Commonwealth v. Shaffer, 224 Pa.Super. 564, 307 A.2d 394 (1973), this court granted a new trial where the prosecutor in a bastardy case told the jury that failure to convict would require either the taxpayers or the unemployed mother to support the child. Cf. Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977), Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974) (arguments which invite the jury to consider dangerous conditions on the streets divert the jury’s inquiry away from a factual determination; hence, they are improper).

Moreover, it is well settled that a prosecutor may comment only on the facts established at trial and legitimate inferences therefrom. See Commonwealth v. Brown, 489 Pa. 285, 298, 414 A.2d 70 (1980); Commonwealth v. Revty, 448 Pa. 512, 516, 295 A.2d 300 (1972). This rule is based on the prosecutor’s responsibility to be both an objective administrator and a zealous advocate, Revty, supra, and on the defendant’s constitutional right to a jury which determines culpability based solely on the evidence of record. See Holbrook v. Flynn, — U.S. —, —, 106 S.Ct. 1340, 1344, 89 L.Ed.2d 525 (1986); Commonwealth v. Bruno, 466 Pa. 245, 262, 352 A.2d 40 (1976). Accordingly, “the prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict,” ABA Standards for Criminal Justice, Standard 3-5.8(d) (1980) (emphasis added). The comment to ABA Standard 3-5.8(d) clearly contemplates a limit of prosecutorial remarks concerning the consequences of conviction. It provides that “references to the likelihood that other authorities, such as the governor or the appellate courts, will correct an erroneous conviction are impermissible efforts to lead the jury to shirk responsibility for its decision.” Accord Commonwealth v. Mills, 350 Pa. 478, 487-88, 39 A.2d 572 (1944) (trial court’s instructions regarding the possibility of parole “constitute an implied invitation to the jury to transfer to the Board of Pardons an unpleasant responsibility which it is the jury’s sworn duty to discharge”).

A prosecutor’s argument to the jury that “if you acquit this defendant he goes never to have to answer again ... (but) if you convict there are appeals and there may be reversals” invites the jurors, as in Mills, to “shirk” their responsibility as factfinders, by urging that the easier course of action is to err on the side of conviction, because only conviction keeps the defendant in the criminal justice system. In effect, the prosecutor tells the jury that its deliberative process should include a bias for conviction, regardless of the facts. This argument is, of course, contrary to the constitutional rule that a guilty verdict must be supported by proof beyond a reasonable doubt. See In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Commonwealth v. McNeil, 461 Pa. 709, 715, 337 A.2d 840 (1975); Commonwealth v. Bryant, 341 Pa.Super. 123, 129, 491 A.2d 181 (1985). The essence of the prosecutor’s argument is that even where the jury has a reasonable doubt, it should return a verdict of guilty to keep the defendant in the system. But Winship and its progeny, far from requiring conviction in such circumstances, mandate acquittal.

In this case, the likelihood is considerable that the prosecutor’s argument urging a bias toward conviction infected the jury’s deliberations. The evidence at trial was clearly disputed; even the eyewitnesses did not agree on the events about which they testified. The record also indicates that the jury deliberated three days before reaching a verdict. Moreover, the court merely suggested to the prosecutor that he amend his remarks, rather than directly instructing the jury to disregard them and to consider only the evidence developed during the trial. See Commonwealth v. Bruno, supra 466 Pa. at 263-64, 352 A.2d 40. Also, the court’s statement concerned the consequences of verdicts generally and was not specifically addressed to the prosecutor’s argument improperly urging the jury to convict. Cf. Commonwealth v. Sargent, 253 Pa.Super. 566, 573, 385 A.2d 484 (1978) (where prosecutor told jury that the defense attorneys are “paid to acquit their clients” and trial judge’s instruction to jury dealt only with the comment that defense attorneys are paid, court’s attempted curative instruction was generalized and abstract to the point of inaccuracy).

The prosecutor’s statement to the jury that its deliberations should be based on a bias for conviction clearly prejudiced this appellant.

Judgment of sentence vacated. Reversed and remanded for new trial.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent. This case is controlled by Commonwealth v. Baker, 511 Pa. 1, 511 A.2d 777 (1986). In an attempt to distinguish this case, the majority mischaracterizes its language by equating a recitation of the Commonwealth’s position with the holding of the case. In Baker, 511 Pa. at 17, 511 A.2d at 785, the Court states that it is a contention of the Commonwealth that the prosecutor’s comments were invited by defense counsel. The opinion does not indicate it “was persuaded” by this argument as stated by the majority in footnote 6.

It is clear that it is our duty to review closing remarks in context and determine if they have the effect of causing a fixed bias or hostility. The remarks, in context, are as follows:

Lastly, I will ask for the courage of all of you to reach a verdict which is consistent with the evidence. I am not permitted to ask you to reach or tell you what I believe in terms of certain evidence, who I believe and why I believe them because what I say really is not important at all. I am also prohibited from doing that, properly so, by the Supreme Court of our Commonwealth because you, these 12 people here are the people that will determine the facts.
Now, I mentioned power. What do I mean by that? Well, power is the fact that you as jurors in this case will actually make this system in this City work. You make it work. You know, some of us feel and many times you have heard that the greatest privilege or power that we have is to vote. Well, that is very true for many, many different reasons, but some of us at times think that in the Presidential election, there are so many millions of votes or in the Governor’s election or Mayor and going down, of course, from millions of votes to hundreds of thousands that sometimes, maybe our vote doesn’t count. Well, that is not true. Our vote counts very much. And because of our ability to vote, we can, in fact, see eventually things occurring through people or through legislation.
Well, your power is something else. The power of being a juror and the power of actually taking part in the criminal justice system of which you are definitely a part at this point, is very significant, indeed, because what do I mean? I simply mean that the 12 of you, when you reach a decision, no matter what it is, it is to a certain extent final and it is to a certain extent immediate. You will not have to wait to see if that bill you wanted to be passed or whether the President will abide by what he said in his campaign. Your decision will be final to a certain extent and immediate.
I say, final to a certain extent because if you acquit both these gentlemen, they go never to come back, never to see this charge and never to have to answer again. That is final. If you convict them of first degree murder or a lesser degree depending upon your own view and based on the evidence, of course, there are appeals and there may be reversals later on because of evidentiary problems, but at least there is to an extent a finality to that also.
So that is why I say to all of you, the responsibility that Judge Richette very early in her comments to all of you means so much.
THE COURT: Excuse me, Mr. McGill. I really do think that you ought to add that the implications of a verdict should play no role in their reaching a verdict.
[Prosecutor]: Oh, yes, very definitely. Thank you, Judge.
THE COURT: I think that should be the final thing to what you just said.
[Prosecutor]: The implications, all of that is not to take any part in your verdict but understand that your verdict is indeed an immediate action. You are powerful, so please take that responsibility very seriously, as I am sure all of you have by the attention that you have been paying to all the people.

(Trial Transcript, pp. 1260-62)

These remarks fail to rise to the levels of improprieties found in the cases cited by the majority. Specifically, in Commonwealth v. Connors, 311 Pa.Super. 553, 458 A.2d 190 (1983), this court found a statement that a “verdict of not guilty would acquit appellant and render the Commonwealth powerless to retry him” was within the bounds of proper advocacy.

Furthermore, I find the judge’s remarks, which were immediately made, did have a curative effect. Although not spoken to the jury, these remarks were made in the jury’s presence and obviously for its benefit. This is not a case where the trial judge’s statement was “generalized and abstract to the point of inaccuracy.” Although the trial judge — a most experienced jurist — used a subjunctive choice of words, it was clear that her remarks were more than “mere suggestion”. The case cited by the majority, Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976) involved a scenario where a trial judge took no direct action to ensure that a jury was not exposed to extensive prejudicial publicity but “merely suggested” they read a good book instead of reading the newspaper or watching the news. The “suggestion” made by the trial judge in the case before us was in fact a direct action which did have curative effects.

The majority would have us believe the case before us is distinguishable from Baker, supra, where the trial judge “clearly and succinctly” instructed the jury that statements by counsel could not be considered as evidence. Actually, the trial judge in the case before us not only gave the same generalized instruction approved by the Baker court, but went one step further and made specific, curative remarks.

      . Because of our disposition, we do not reach the other issues which appellant raises.

      . This evidence, if believed by the jury, would be sufficient to sustain guilty verdicts against appellant.

      . See abo Trimble v. Merloe, 413 Pa. 408, 197 A.2d 457 (1964) (lawyer’s remark in closing argument barred by well-settled rule prohibiting comment about defendant’s ownership of a policy of liability insurance). Cf. Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977) (unfamiliarity with verdict of not guilty by reason of insanity justifies informing jury of the consequences of such a verdict).

      . We do not hold that sua sponte interruption by a trial court is improper. Indeed, trial court action on its own motion is often required. See ABA Standards for Criminal Justice, Special Functions of the Trial Judge, standard 6-1.1(a) (1980). We only hold that this interruption was flawed, because it was neither addressed to the jury, nor specific enough to mitigate the prejudice of the prosecutor’s argument.

      . The Commonwealth relies on Commonwealth v. Connors, 311 Pa.Super. 553, 563-64, 458 A.2d 190 (1983). There, a panel of this court held that the unavoidable effect of a statement that “a verdict of not guilty would acquit appellant and render the Commonwealth powerless to retry him” was not to prejudice appellant, since the statement was not part of an "impassioned plea to convict,” id. Unlike Connors, the prosecutor’s argument here was part of an “impassioned plea to convict.” It persuaded the jury with rhetoric ("never to come back, never to see this charge and never to have to answer again”), and it included, along with a reference to acquittal, a discussion of the appellate consequences of conviction. Clearly, the "unavoidable effect” of the prosecutor’s argument was to fix an improper bias in favor of conviction in the minds of the jurors. See Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669 (1974).

      . This opinion was originally filed on June 11, 1986. Twelve days later, our Supreme Court held that defense counsel's failure to object to a similar closing argument did not amount to ineffective assistance of counsel. See Commonwealth v. Baker, 511 Pa. 1, 16-19, 511 A.2d 777, 785-86 (Pa.1986). Cf. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Baker, supra, 511 Pa. 20-28, 511 A.2d 787-791 (prosecutor’s statement during death penalty hearing, that defendant may appeal from jury’s determination held improper). We have sua sponte reconsidered our decision in light of the Court’s opinion in Baker. The Baker court recognized that the question of whether a prosecutor’s misstatement is grounds for a new trial necessarily depends on the individual circumstances of each case. The Court said:
      Even where the language of a prosecutor is “intemperate, uncalled for, and improper, a new trial is not required unless 'its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.’ ” Commonwealth v. Burton, 491 Pa. 13, 22, 417 A.2d 611, 615 (1980), quoting, Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975).
      In Baker, the Court was persuaded by facts which indicated that the prosecutor’s statement was made in rebuttal to a statement by defense counsel during his closing. Moreover, the trial judge "clearly and succinctly” instructed the jury that statements by counsel could not be considered as evidence. Here, the comment was not made in rebuttal, nor can it fairly be said that the trial judge’s statement to the prosecutor serves as a "clear and succinct” curative instruction.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    518 A.2d 311
    Allen D. HOUSTON v. NATIONAL MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1986.
    Filed Dec. 4, 1986.

      Joseph A. Whip, Jr., Norristown, for appellant.
    Bernard V. DiGiacomo, Norristown, for appellee.
    Before McEWEN, DEL SOLE and TAMILIA, JJ.
   DEL SOLE, Judge:

This is an appeal from the judgment which resulted from an order denying appellant’s petition to vacate or modify an arbitration award. We affirm.

On February 23, 1985 appellee was involved in an automobile accident in which he sustained injuries. He accepted $15,000 from Northland Insurance Company which represented the limits of a policy carried by the operator of the other vehicle involved in the accident.

Pursuant to his own policy with appellant Nationwide Mutual Insurance Company, appellee filed an underinsured motorist claim. The Nationwide policy provides for under-insured benefits in the amount of $25,000 per person for each of two automobiles, for a total of $50,000. The policy additionally provides that, “[a]ny damages payable to or for the insured under this coverage will be reduced by any sums paid by or for any liable parties.” Unable to agree on either the amount of damages suffered or whether the amount received from Northland should be offset against the amount of damages suffered or offset against Nationwide’s liability, appellee filed a petition to compel arbitration. The Nationwide policy provides for arbitration in accordance with the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S.A. § 7301 et. seq., “[i]f we and the insured do not agree about the insured’s right to recover damages or the amount of damages....”

The arbitrators determined appellee suffered $60,000 in damages. Furthermore, it was held that the $15,000 received from Northland must be deducted from the $60,000 damages suffered and not the liability of Nationwide.

Nationwide filed a petition to vacate or modify the award. The trial court dismissed the petition and this appeal ensued.

On appeal, it is contended,

1. the court erred in denying the petition as the arbitration panel exceeded its authority in deciding that the setoff provision in the policy is void, and
2. the court erred in denying the petition as the offset provision is not void.

We note:

that this case is governed by the provisions of statutory arbitration outlined in the Uniform Arbitration Act (the Act). 42 Pa.C.S.A. § 7301 et seq. An agreement to arbitrate a controversy comes under this subchapter when ‘the agreement is in writing and expressly provides for arbitration pursuant to [the] subchapter.’ 42 Pa.C. S.A. § 7302(a).

Martin State Auto. Ins. Ass’n., 344 Pa.Super. 531, 534, 496 A.2d 1233, 1235 (1985).

A court may properly modify or correct an award only where:
(1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(3) the award is deficient in a matter of form, not affecting the merits of the controversy.
42 Pa.C.S.A. § 7315(a).

Martin v. State Auto. Ins. Ass’n., 344 Pa.Super. at 535, 496 A.2d at 1235.

Clearly, appellant has not alleged the type of errors for which the Act permits a court to modify an arbitrators award.

However, “42 Pa.C.S. § 7314 provides that the court shall vacate an arbitrator’s award upon application of a party where: (a)(l)(iii) arbitrators exceeded their powers.” Ostroff v. Keystone Ins. Co., 357 Pa.Super. 109, 515 A.2d 584 (1986). Here, the arbitrators are said to have exceeded their powers by deciding that the offset provision in the policy was void as against public policy. We have reviewed the Opinion and Award of the Board of Arbitrators and contrary to appellants assertion nowhere is it stated that the offset provision is void. Indeed, the provision was specifically applied. While appellants have attempted on appeal to characterize this as a situation where arbitrators exceeded their powers, the essence of their claim is that the arbitrators did not interpret the offset provision correctly. This distinction is critical. Our Supreme Court has stated:

[h]ere we do not have a contract in which each term was bargained for. Rather, as with most insurance policies, the terms of the policies at issue here were written by the respective companies. Under such circumstances, where a contract exists without a history of bargaining over the terms, the construction of the individual terms of that contract is a question of law.

Utica Mut. Ins. Co., v. Contrisciane, 504 Pa. 328, 334, 473 A.2d 1005, 1008 (1984).

The interpretation of the offset provision is a question of law. While the Act, as already stated, provides that the court shall vacate an award when the arbitrators exceed their powers, the legislature has also set forth in the Act “the limited circumstances in which a reviewing court can modify or correct an award due to an error of law.” Martin v. State Auto. Ins. Ass’n., 344 Pa.Super. at 537, 496 A.2d at 1236.

Where the award is contrary to law, and is such that had it been a verdict of a jury the court would have entered a different judgment, or judgment NOV, it may be modified or corrected if any of the following are applicable:
(i) The Commonwealth government submits a controversy to arbitration.
(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
(iii) Any person has been required by law to submit or agree to submit a controversy to arbitration pursuant to this subchapter. 42 Pa.C.S.A. § 7302(d)(1) & (2).

Martin v. State Auto. Ins. Ass’n., 344 Pa.Super. at 537, 496 A.2d at 1236.

We are unable to review an alleged error of law because none of the enumerated limited circumstances set forth in the Act permitting this standard of review is present. Therefore, we affirm the trial court’s order denying appellant’s petition to vacate or modify the arbitrator’s award.

Order Affirmed.

TAMILIA, J., concurs in the result.

      . Although our courts have held that underinsurance motorist benefits cannot be stacked, see Pirches v. General Accident Ins. Co., 354 Pa.Super. 303, 311 n. 2, 511 A.2d 1349, 1353 n. 2 (1986), the parties have stipulated that the benefits may be stacked and that issue is not before us.


author: WIEAND, Judge:

text:
    518 A.2d 314
    Terry WENTZ, Appellant, v. PENNSWOOD APARTMENTS, Appellee.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Dec. 5, 1986.

      Thomas B. Rutter, Andrew E. DiPiero, Jr., Philadelphia, for appellant.
    Richard H. Wix, Harrisburg, for appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   WIEAND, Judge:

The principal issue in this appeal from a judgment entered on a defense verdict is whether the Pennsylvania “hills and ridges” doctrine applies to private walks which are covered with ice or snow, or only to public sidewalks. As a secondary issue, appellant requests that we review the trial court’s jury instructions pertaining to the choice of ways.

On January 16,1978, Terry Wentz, an employee of United Parcel Service, used a private walk to move from the street, where he had parked his truckrto the Pennswood Apartment Complex, Harrisburg, where he intended to deliver a package. Although the walkway was covered with ice and snow, he was able to gain entrance to the apartment without incident. He was unable to deliver the package, however, and was forced to return to his truck with it. While retracing his path over the privately maintained sidewalk, he slipped and fell with resulting injury. His action against the corporate owner of the apartment complex was tried before a jury. The jury rejected his claim and returned a verdict in favor of the defendant. Post-trial motions were denied, and judgment was entered on the verdict. Wentz appealed.

He argues, on appeal, that the trial court erred by refusing to charge the jury on the Pennsylvania “hills and ridges” doctrine and by instructing the jury that the plaintiff could not recover if, knowing of the potential danger in crossing an ice or snow covered sidewalk, he nevertheless chose to walk across it when a safer route was available to him.

It is axiomatic that a possessor of land owes a duty to protect his invitees from foreseeable harm. Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983). An owner or occupier of land is subject to liability for harm which befalls his invitees due to a condition on his land if he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

Restatement (Second) of Torts § 343. However, as is made clear by Section 343A of the Restatement,

[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Restatement (Second) of Torts, § 343A. See also: Carren-der v. Fitterer, supra, 503 Pa. at 185, 469 A.2d at 123; Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980); Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601 (1982). The trial court instructed the jury in accordance with the foregoing sections of the Restatement. This was not error.

The doctrine of “hills and ridges” is not inconsistent with Section 343 of the Restatement (Second) of Torts. The doctrine, as defined and applied by the courts of Pennsylvania, is a refinement or clarification of the duty owed by a possessor of land and is applicable to a single type of dangerous condition, i.e., ice and snow covered walks. The rule holds 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. Rinaldi v. Levine, 406 Pa. 74, 78, 176 A.2d 623, 625 (1962). See also: Whitton v. H.A. Gable Co., 331 Pa. 429, 200 A. 644 (1938). 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. Absent proof of all such facts, plaintiff has no basis for recovery.

Rinaldi v. Levine, supra, 406 Pa. at 78-79, 176 A.2d at 625-626 (emphasis in original). See also: Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971); Williams v. Shultz, 429 Pa. 429, 240 A.2d 812 (1968); Izzo v. Meyer, 259 Pa.Super. 95, 393 A.2d 733 (1978); Strother v. Binkele, 256 Pa.Super. 404, 389 A.2d 1186 (1978).

Appellee argues that the doctrine of “hills and ridges” applies only to public sidewalks and not to private walks in an apartment complex. Neither appellee nor our own research has revealed precedent for the distinction which appellee seeks to create. On the contrary, an examination of the decided cases discloses that the appellate courts of this Commonwealth have already applied the doctrine of hills and ridges to situations in which business invitees have fallen on ice covered private parking areas or walks. See: Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966); Roland v. Kravco, Inc., 355 Pa.Super. 493, 513 A.2d 1029 (1986). See also: Williams v. United States, 507 F.Supp. 121 (E.D.Pa.1981) (applying Pennsylvania “hills and ridges” doctrine to the fall of a business invitee in a post office parking lot). Moreover, we are at a loss to find any justification for the distinction which appellee would have us create. Weather conditions in this hemisphere have the same effect on privately owned walks as they do on public sidewalks, and there is no valid reason for imposing different standards of care with respect to the two. Therefore, we reject appellee’s contention that the doctrine of “hills and ridges” can have no application to ice and snow covered walks, which are privately owned.

An instruction regarding the “hills and ridges” doctrine would have been proper in this case, perhaps even desirable. Nevertheless, it does not appear that appellant was prejudiced in any way by the trial court’s failure to so charge. The doctrine of “hills and ridges” is not an extension or expansion of the duty which the law imposes upon an owner or occupier of land. It is, rather, a limitation on the liability of such persons for conditions which are caused generally by climatic conditions in this hemisphere. The doctrine of “hills and ridges” has always been deemed a principle of law intended to protect possessors of land by increasing, not decreasing, the proof required before a plaintiff can recover for injuries sustained as a result of a fall on an ice or snow covered surface. In the instant case, the trial court correctly instructed the jury regarding the duty owed by an owner of land to a business invitee. By virtue of this instruction, the jury was permitted to find the owner negligent for ice and snow covered walks even though the ice and snow had not been there for a sufficient time to accumulate as “hills and ridges.” This instruction was more favorable than the plaintiff was entitled to receive. If it had been given, it would not have served to enhance the likelihood of recovery; it could have served only to increase the plaintiffs burden of proof. We conclude, therefore, that the court’s failure to charge on “hills and ridges” was harmless in this case and could not have contributed to the jury’s rejection of the plaintiff-appellant’s claim.

Appellant also contends that the trial court erred when it instructed the jury that the defendant owner was not to be found liable if the plaintiff had discovered the icy condition of the sidewalk and nevertheless elected to encounter the risk rather than use a safer route. If this portion of the court’s instructions were erroneous, however, the error was not called to the attention of the trial judge. When given the opportunity at the completion of the charge to suggest corrections or additions, appellant did not suggest that the foregoing instruction was incorrect. His objection to this portion of the charge, therefore, has been waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Finally, appellant argues that the verdict was contrary to the weight of the evidence. However, a court may grant a new trial on grounds that the verdict was contrary to the weight of the evidence only when the verdict shocks one’s sense of justice so that a new trial is imperative in order that right may have another opportunity to prevail. Lupi v. Keenan, 396 Pa. 6, 8, 151 A.2d 447, 449 (1959); Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 410, 430 A.2d 665, 670 (1981). In this case, the trial judge who saw the witnesses and heard the testimony, did not find the verdict contrary to the weight of the evidence, and our review of the evidence does not suggest that the trial court’s determination constituted an abuse of discretion. See: Ason v. Leonhart, 402 Pa. 312, 165 A.2d 625 (1960). Therefore, we will not interfere with his decision.

Judgment affirmed.

      . Specifically, the trial court instructed the jury as follows:
      There is a further refinement to this duty imposed upon the landowner by Pennsylvania law. If you find that Mr. Wentz discovered the dangerous condition of the walkway leading to the apartment and that that danger was avoidable, that is he could have chosen another entryway to his proposed delivery point without walking on the sidewalk, and you find that instead of that he chose the hazardous route, this act on his part would relieve the Defendant from any duty to take measures to alieviate [sic] the danger you may have fund to exist on the sidewalk.
      The instruction was based upon Sections 496A Comment c and 496C of the Restatement (Second) of Torts and Carrender v. Fitterer, supra 503 Pa. at 187-188, 469 A.2d 120.


author: BECK, Judge:

text:
    518 A.2d 317
    George W. RATZ, Jr. v. Nancy L. RATZ, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Dec. 5, 1986.

      Karen L. Semmelman, York, for appellant.
    Rebecca N. Tortorici, York, for appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   BECK, Judge:

This appeal concerns the appealability of an order sustaining subject matter jurisdiction of a Pennsylvania court in a dispute under the Uniform Child Custody Jurisdiction Act, 42 Pa.Cons.Stat. §§ 5341-5366 (1981).

The parties were divorced in 1983. They agreed that appellant mother would have primary custody of their daughter Kristen, and the appellee father would have liberal partial custody. In August 1984, mother moved with Kristen to Ohio to pursue a master’s degree in theology. Father had partial custody in Pennsylvania during Kristen’s school vacations and in Ohio when he was there on business.

On June 19, 1985, the father petitioned for custody of Kristen in Pennsylvania. The mother entered a special appearance and moved to dismiss for lack of subject matter jurisdiction. The trial court denied the mother’s motion after a hearing. She appeals.

She argues that the court’s order'is either a final order, Pa.R.App.P. 341, or in the alternative it is an interlocutory order appealable as of right, Pa.R.App.P. 311(b). We conclude her appeal is neither a final order nor an interlocutory order appealable as of right. We therefore quash.

Mother incorrectly argues that the order denying her motion to dismiss for lack of subject matter jurisdiction is final, Pa.R.App.P. 341.

“An order is final when the practical effect of the order is to put the appellant out of court, Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), or otherwise terminate the litigation by precluding a party from presenting the merits of a claim or defense to the trial court. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981) [aff'd 498 Pa. 570, 449 A.2d 1378 (1982)].”

Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 189, 479 A.2d 500, 503 (1984). In the instant case the court’s order sustaining jurisdiction does not put the mother out of court, and is, therefore not final.

The fact that the order is not final does not end our inquiry. Certain interlocutory orders are appealable as of right. We next examine whether the interlocutory order in the instant case is appealable as of right. Rule 311(b), Pa.R.App.P. provides:

(b) Order sustaining venue or personal or in rem jurisdiction. An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the mattér or jurisdiction over the person or over real or personal property if:
(1) the plaintiff, petitioner or other party benefiting from the order files or record within ten days after the entry of the order an election that the order shall be deemed final; or
(2) the court states in the order that a substantial issue of jurisdiction is presented.

This rule makes interlocutory orders sustaining venue and sustaining personal and in rem jurisdiction appealable as of right. The rule, however, is not applicable to sustaining subject matter jurisdiction. We, therefore, hold that a party challenging an order sustaining subject matter jurisdiction may not appeal the interlocutory order as a matter of right.

Formerly, challenges to all jurisdictional questions were appealable as of right. Act of March 5, 1925, Pa.Stat.Ann. tit. 12, § 672 (repealed 1980). The law was “designed to secure a final determination of jurisdictional matters in limine, before inquiry into the merits of the case.” Commonwealth ex rel. Levinson v. Levinson, 193 Pa.Super. 434, 437, 165 A.2d 429, 430 (1960).

The statute permitting appeals on all interlocutory orders sustaining jurisdiction has been replaced by Pa.R.App.P. 311(b), which is considerably narrower than its predecessor statute. City of Philadelphia v. Franklin Smelting and Refining Co., 303 Pa.Super. 393, 449 A.2d 745 (1982). Prior to promulgation of the Pa.R.App.P. 311(b) the Pennsylvania Bulletin noted the intention of the drafters of the rule to narrow its scope.

The [previous] statutory scheme was developed between 1842 and 1925, at a time when the General Assembly was attempting to define broad classes of appealable orders. The introduction of [Rule 312 and] the petition for permission to appeal procedures of Chapter 13 of the Appellate Rules, which now permit the trial court (subject to the supervision of the appellate court) to select on a case-by-case basis the issues which are ripe for interlocutory review, obviously requires a thoroughgoing reexamination of the need to continue the existing broad rights to appeal from specified classes of orders.

8 Pa.Bull. 3636 (December 23, 1978)

More directly the Advisory Committee on Appellate Court Rules comments that orders sustaining subject matter are not appealable as of right:

“[o]ther orders relating to subject matter jurisdiction ... will be appealable under Rule 341 if jurisdiction is not sustained, and otherwise will be subject to Rule 312.”

Pa.R.App.P. 311 note (1978).

Although this explanatory note has not been officially adopted or promulgated by the Supreme Court, it was prepared by the Rules Committee and is persuasive.

The mother, therefore, can not support her claim that the order sustaining jurisdiction is appealable as of right, Pa.R. App.P. 311(b). Mother advises the court that under Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500 (1984) she was not required to follow the procedural mandates of Pa.R.App.P. 311(b). Since we find that Rule 311(b) does not apply to the order from which she appealed, it is not relevant whether she did or did not follow the procedures of the rule.

The appeal is quashed.

      . Pa.R.App.P. 312 pertains to interlocutory appeals by permission.


author: TAMILIA, Judge:

text:
    518 A.2d 319
    Jay A. RITTER v. Robert H. RITTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1986.
    Filed Dec. 5, 1986.

      Alvin J. Luschas, Bloomsburg, for appellant.
    Robert W. Buehner, Jr., Danville, for appellee.
    Before McEWEN, DEL SOLE and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant/husband filed a divorce action against ap-pellee/wife on September 9, 1985. The present matter was commenced by appellee’s answer’s request for alimony pen-dente lite or spousal support and for child support for the parties’ two-year old son, Jason. After review, the Domestic Relations Officer recommended an award of $350 per month spousal support and $500 per month child support, for a total of $850 per month. Following a de novo hearing, the lower court basically adopted the recommendations of the Domestic Relations Officer but decreased the spousal support to $300 per month and also ordered payment of $50 per month on account of the arrearages. Appellant timely appealed this Order.

Appellant seeks to alter the lower court’s spousal support Order by claiming that the court erred in failing to take into account appellant’s reasonable expenses in setting the spousal support Order. We find appellant’s attempt to appeal the spousal support Order premature. This portion of the appellant’s appeal is controlled by Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), in which our Supreme Court held that interim relief orders in divorce cases are “interlocutory and thus not reviewable until final disposition of the case.” In discussing alimony pendente lite, the Supreme Court explained:

[I]t was previously held that the payor spouse was entitled to immediate appeal because the amounts paid under such order would be irretrievable. This reasoning, however, fails under the Divorce Code of 1980. As stated in Judge Beck’s dissent, “... the new provisions of the Divorce Code authorizing equitable distribution of marital property and permanent alimony have taken away any reason to fear that funds once paid out pursuant to an interim award are unrecoverable.” Sutliff[v. Sutliff] supra, 326 Pa.Super. [496] at 504, 474 A.2d [599] at 603 [(1984)] (Beck, J., dissenting). In the event that an initial award of interim relief is granted in error, the court has the power to make adjustments in the final settlement via the equitable division of marital property, permanent alimony, and/or the final award of attorney’s fees and costs. Thus, under the new Code the conclusion that a grant of interim financial relief may result in the irreparable loss of a claimed right cannot be supported. We hold, therefore, that such an order is interlocutory and thus not reviewable until final disposition of the case.

Id., 509 Pa. at 96, 501 A.2d at 215. While Fried dealt with an Order issued pursuant to section 502 of the Divorce Code, 23 P.S. § 502, we hold the same “strong policy considerations” apply to a spousal support Order. Spousal support and alimony pendente lite are indistinguishable in the context of a divorce action. Therefore, we are without jurisdiction to entertain appellant’s interlocutory appeal as to spousal support and accordingly quash that portion of the appeal.

Appellant’s remaining arguments involve the child support portion of the Order. We would distinguish child support from spousal support in a divorce action as the same considerations do not apply. In Fried, supra, the Supreme Court made clear that any inequities that might arise between husband and wife as to alimony or support can be rectified when their mutual property claims are adjusted. This is not the case with child support since the child has no claim on the division of marital property. In addition, while the adults can generally look to other sources of revenue to maintain themselves during litigation, the child is totally dependent on its parents for support; its needs are immediate and continuing, and in particular, any deficiency is unlikely to be recovered. We believe the child support Order requires review to protect the interest of the child, to avoid hardship, and to assure uninterrupted maintenance by its parents.

Appellant claims the trial court erred in entering a child support Order in excess of the child’s properly calculated needs and in failing to take into account the reasonable expenses of the appellant in setting the child support Order. Our scope of review in support cases is limited. It is within the trial court’s discretion to determine the amount of a support Order, and its judgment should not be disturbed on appeal absent a clear abuse of that discretion. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Commonwealth ex rel. Loring v. Loring, 339 Pa.Super. 92, 488 A.2d 324 (1985). “On appeal, a trial court’s child support order will not be disturbed unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award.” Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985); Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 465 A.2d 27 (1983). A finding of abuse will be made only upon a showing of clear and convincing evidence. Koller v. Koller, 333 Pa.Super. 54, 481 A.2d 1218 (1984).

In attacking the child support Order, appellant argues the lower court did not properly apply the support formula enunciated in Melzer, supra. Appellant relies upon the income and expense statement appellee filed with the Domestic Relations Officer, which is a part of the Domestic Relations Officer’s report and is contained in the certified record on appeal to this Court. Appellant maintains that a child support award of $500 is inconsistent with the $211 amount appellee had calculated to be the reasonable needs of the child and which appears on the income and expense statement in the record.

In opposition to appellant, appellee contends that in determining the support award the lower court considered her Plaintiffs Exhibit B, which is a revised income and expense statement, submitted during the hearing, with a substantially higher amount for the reasonable needs of the child. Appellee states:

Unfortunately, the Appellant’s entire arguement [sic] and case is based upon the fact that Plaintiff’s Exhibit B does not exsist [sic] or is a different type of Exhibit. However, Plaintiff’s Exhibit B does exsist [sic] as set forth in the Supplemental Reproduced Record given to the Court by the Appellee. Certainly the Court took this into consideration when making its decision.

Brief for Appellee at 5.

We are not so certain that the lower court “took this into consideration when making its decision.” In his Opinion, Judge Myers states, “[m]ore detailed income and expense information was made a part of the Domestic Relations Report and is incorporated by reference herein.” (Slip Op. at 2). This would include only appellee’s first income , and expense information statement upon which appellant relies. However, the hearing transcript clearly shows that appel-lee’s counsel entered into evidence the updated income and expense report, as well as another exhibit, over appellant’s objection (H.T. 12/10/85, pp. 11, 22-23). Even though the appellee properly admitted the exhibits during the hearing, they do not appear in the certified record on appeal to this Court. Additionally, the official docket entries which were forwarded to this Court are silent as to any exhibits entered by either party during the hearing.

It is well settled that an appellate court can only consider the certified record on appeal when reviewing a case. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Anmuth v. Chagan, 295 Pa.Super. 32, 440 A.2d 1208 (1982). The material in appellee’s “Supplemental Reproduced Record” was not included in the record as certified and transmitted by the lower court and, therefore, cannot be considered in our review. General Accident Fire & Life Assurance Corp., Ltd. v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982). However, it is within our power to remand a case with instructions for further proceedings in which documents not properly before us can be considered by the lower court. 42 Pa.C.S.A. § 706; Anmuth, supra.

Pennsylvania Rule of Appellate Procedure 1921 provides: “The original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.” (Emphasis added). Further, Pa.R.A.P. 1926 states in part:

If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted.

“Where it is impossible for the appellate court to decide a case because the record is incomplete, the case should be remanded to the lower court for clarification and completion of the record.” Johnson v. Keystone Insurance Company, 299 Pa.Super. 187, 193, 445 A.2d 517, 520 (1982) (remand necessary when record contains neither a transcript of a master’s hearing nor a master’s report and parties disagree as to what evidence was actually presented at the hearing, and trial court’s Opinion has no findings of fact and no discussion of facts); Pawol v. Pawol, 293 Pa.Super. 29, 437 A.2d 974 (1981) (remand necessary if impossible for the appellate court to consider all relevant factors before entering an Order increasing support where there is no transcript of the support hearing).

In view of the importance of the information contained in the appellee’s exhibits properly admitted at the lower court’s hearing, but not now part of the record on appeal, we remand this case, without relinquishing jurisdiction, so that the court below can correct the omission in the record. Additionally, we direct the court to comment on its use of the exhibits’ information in determining the child support award.

For the above stated reasons, we quash that portion of appellant’s appeal concerning spousal support and remand that portion of the case dealing with the award of child support for amplification of the record in accordance with this Opinion. The trial court is directed to schedule a hearing to complete the record and return the completed record to this Court within sixty days of the filing of this Opinion.

Panel jurisdiction relinquished; case jurisdiction retained.

      . The lower court’s Opinion notes that the appellee’s request for alimony pendente lite or spousal support and child support came before it through appellee’s answer to appellant’s divorce complaint. However, the record reveals that appellee filed a Complaint for Support on February 3, 1986, twenty-four days after the lower court’s January 10, 1986 Order disposing of the support matters — which Order is the subject of the instant appeal. This inconsistency is disconcerting, appellee's purpose for filing the support complaint is unexplainable. Appellee could have elected to file for support independently of the divorce action under Pa.R.C.P. § 1910.1 et seq. but once an Order was entered for support, pursuant to joinder under the divorce action, further proceedings for support would appear to be barred.

      . This does not, however, apply to those cases where an independent complaint in support, pursuant to Pa.R.C.P. 1910.1 et seq., was joined with the divorce complaint for resolution pursuant to the Divorce Code, 23 P.S. § 301 Jurisdiction. In those cases, the integrity of the support complaint is maintained and is appealable within thirty (30) days pursuant to Pa.R.C.P. 1910.11 and 1910.12.

      . This Court reviewed the application of the Melzer formula in Riess v. DeLuca, 353 Pa.Super. 622, 510 A.2d 1239 (1986) (Tamilia, J., concurring).