text:
    493 A.2d 775
    Frank ROZNOWSKI, Administrator of the Estate of Darren Roznowski, Deceased and Frank Roznowski and Marian Roznowski, Appellants, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, a Corporation, Appellee.
    Superior Court of Pennsylvania.
    Argued March 6, 1985.
    Filed May 31, 1985.

      James C. Kuhn, III, Pittsburgh, for appellants.
    John C. Carlin, Jr., Pittsburgh, for appellee.
    Before BROSKY, WIEAND and LEDERER, JJ.

       The Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

Darren Roznowski was struck by a motor vehicle on December 22, 1976 and received injuries from which he died shortly thereafter. Pennsylvania National Mutual Casualty Insurance Co., which had issued a policy of motor vehicle insurance providing coverage for two automobiles owned by Frank and Marian Roznowski, the parents of Darren, paid medical and funeral expenses on February 18, 1977. On December 20, 1982, almost six years later, the surviving parents commenced an action to recover work loss benefits in the amount of $30,000 and survivor’s benefits in the amount of $10,000 on account of their son’s death. They also sought an additional $1,500 for medical and funeral expenses. The insurer filed an answer in which it alleged (1) that the policy did not permit stacking of coverages provided for the two vehicles insured, and (2) via new matter, that the action was barred by the statute of limitations contained in the Pennsylvania No-fault Motor Vehicle Insurance Act at Section 106, 40 P.S. § 1009.106. After the insurer had filed a motion for judgment on the pleadings, the Roznowskis filed a reply to new matter, generally denying the insurer’s averments that the statute of limitations barred their action and that stacking of coverages was prohibited. Following argument the trial court entered judgment on the pleadings in favor of the insurance company. The parents appealed.

We may affirm the judgment if it was proper for any reason. See: Koziatek v. Marquett, 335 Pa.Super. 482, 487 n. 2, 484 A.2d 806, 808 n. 2 (1984). The trial court correctly concluded that no-fault benefits could not be stacked. See: Antanovich v. Allstate Insurance Co., 507 Pa. 68, 488 A.2d 571 (1985). This alone, however, was insufficient to bar the present action. The pleadings in this case disclose that the parents have received neither work loss benefits nor surviv- or’s benefits. Their right to recover these benefits is not wholly defeated by the policy provisions which prevent stacking; these policy provisions serve only to limit the amount of benefits recoverable.

It is clear, however, that the parents’ claim is time-barred by the statute of limitation contained in Section 106(c) of the No-fault Act. This section provides as follows:

(c) Time limitations on actions to recover benefits.—
(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.
(2) If no-fault benefits have not been paid to the deceased victim or his survivor or survivors, an action for survivor’s benefits may be commenced not later than one year after the death or four years after the accident from which death results, whichever is earlier. If survivor’s benefits have been paid to any survivor, an action for further survivor’s benefits by either the same or another claimant may be commenced not later than two years after the last payment of benefits. If no-fault benefits have been paid for loss suffered by a victim before his death resulting from the injury, an action for surviv- or’s benefits may be commenced not later than one year after the death or six years after the last payment of benefits, whichever is earlier.

Id., 40 P.S. § 1009.106(c) (emphasis added).

The appellant-parents were paid medical and funeral expenses on February 18, 1977. Payments for medical care do not arise from death; they arise from attempts to save or help the victim. Fusco v. Keystone Insurance Co., 312 Pa.Super. 471, 474, 458 A.2d 1390, 1391 (1983). Therefore, appellants’ action for work loss benefits had to be commenced within two years after medical payments had been paid, or by February 18, 1979. See: Holland v. General Accident Fire and Life Assurance Corp., 339 Pa.Super. 443, 489 A.2d 238 (1985). The pleadings in this case disclose affirmatively that appellants’ action was not commenced within the time allowed therefor.

An action for survivor’s benefits under Section 106(c)(2) had to be commenced “not later than one year after the death or six years after the last payment of benefits, whichever is earlier.” 40 P.S. § 1009.106(c)(2) (emphasis added). Appellants’ claim for survivor’s benefits, therefore, is also time-barred.

Appellants acknowledge the applicability of the statute of limitations and concede that the pleadings disclose an action that is time-barred. They argue that judgment on the pleadings was premature because in a separate action, consolidated for trial with the case sub judice, the pleadings are not yet closed. There is no merit in this argument.

Consolidation of actions for trial is authorized by Pa.R.C.P. 213(a). Whether to consolidate actions for trial is a matter primarily within the discretion of the trial court. Lohmiller v. Weidenbaugh, 302 Pa.Super. 174, 182, 448 A.2d 583, 587 (1982), reversed on other grounds, 503 Pa. 329, 469 A.2d 578 (1983). When separate actions are consolidated for trial, each action retains its separate character. Each has its separate docket entries, and each produces its own verdict and judgment. See: Azinger v. Pennsylvania Railroad Co., 262 Pa. 242, 105 A. 87 (1918). The instant judgment on the pleadings was entered in an action which sought to recover no-fault benefits pursuant to a written policy of insurance. It was from an order holding an action on the policy barred that the present appeal was taken. The separate, but consolidated, action is not before us, and the record thereof has not been forwarded to this Court for review. It is clear, however, that the judgment on the pleadings in this action was not erroneous merely because the trial court failed to consider the state of the record in the separate action. The consolidation of cases for trial does not prevent the entry of a summary judgment in one of them if a summary judgment is otherwise proper.

The order entering judgment on the pleadings is affirmed.

      . Act of July 19, 1974, P.L. 489, as amended, 40 P.S. § 1009.101 et seq., repealed by the Act of February 12, 1984, P.L. 26, § 8(a) (effective October 1, 1984).

      . Pa.R.C.P. 213(a) provides as follows:
      When actions involving a common question of law or fact are pending before the court, the court on its own motion or on motion of any party may order a joint hearing or trial of any or all the matters in issue in the actions, may order all of the actions consolidated, and may make such orders concerning proceedings therein as may avoid unnecessary costs or delay.

      . Although the record in the consolidated action is not before us, the briefs suggest that the action is based upon an alleged oral offer by an agent of the insurance company to pay work loss benefits in the amount provided as coverage for one vehicle. The law is clear that an offer to settle a disputed claim does not toll the running of the statute of limitations. See: Schmucker v. Naugle, 426 Pa. 203, 205, 231 A.2d 121, 123 (1967). Moreover, if appellants are able to plead an agreement to settle or an unequivocal promise to pay made after their claim was barred by the statute of limitations, the agreement or promise may give rise to a separate cause of action. See: Fix’s Estate, 140 Pa.Super. 60, 62, 12 A.2d 826, 827 (1940). This issue, however, can better be resolved in the separate action which is still pending. It is enough for our purposes that the separate action does not prevent judgment on the pleadings in this action.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    493 A.2d 778
    COMMONWEALTH of Pennsylvania, Appellant, v. William DRIVER, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed May 31, 1985.

      Barry Rudofsky, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Donald Bronstein, Assistant Public Defender, Philadelphia, for appellee.

      Before WIEAND, WATKINS and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

William Driver was tried nonjury and was found guilty of robbery, conspiracy, theft, simple assault, and unauthorized use of a vehicle. Subsequently the trial court found the evidence insufficient to sustain the verdict, granted a motion in arrest of judgment, and discharged the defendant. The Commonwealth appealed. We reverse.

The effect of a motion in arrest of judgment is to admit all the facts which the prosecution’s evidence tends to prove. Commonwealth v. Combs, 298 Pa.Super. 527, 529, 445 A.2d 113, 114 (1982). In determining the sufficiency of the evidence to sustain a finding of guilt, the evidence and all reasonable inferences arising therefrom must be viewed in the light most favorable to the Commonwealth, which has won the verdict. Commonwealth v. Davis, 477 Pa. 197, 199, 383 A.2d 891, 892 (1978). The latitude of the trial judge in passing upon a nonjury verdict is no greater than the authority of a trial judge to set aside a jury verdict. Commonwealth v. Meadows, 471 Pa. 201, 205 n. 5, 369 A.2d 1266, 1268 n. 5 (1977).

The evidence in the instant case shows that appellee and Albert Coleman hailed a taxi at the University of Pennsylvania Hospital on January 12, 1983 at approximately 4:30 p.m. The taxi driver was Shaun Callen. He took his passengers to the thirty-nine hundred block on Folsom Street. There he was requested to wait for someone to come out of a house. Coleman, who was seated behind the driver, then put his left arm around Callen, held a knife to him and demanded money. Appellee was seated in the right rear when this took place. Callen gave Coleman approximately seventy dollars from a bag which he used to carry money and papers. Coleman then tied Callen’s hands together and ordered him into the back seat; whereupon Coleman drove the taxi to 26th Street and Hartranft Terrace in Philadelphia, while appellee remained in the back seat with Callen. Appellee, the evidence shows, continued to watch Callen carefully as Coleman drove. While doing so, he kept one hand concealed inside his coat pocket. When they reached their destination, Callen was released unharmed but still tied. After Coleman and appellee left in the taxi, Callen was untied and called the police. The robbery, together with a description of the taxi, was broadcast via police radio.

At or about 5:45 p.m., the stolen taxi was spotted in the vicinity of the Philadelphia Airport by Officer George Owens. He followed the taxi and stopped it. Coleman was still driving, and appellee was still seated in the back seat. One knife was found in Coleman’s possession; another was found on the back seat of the taxi where appellee had been sitting. Each man had in his possession the sum of $35, one-half of the amount taken from Callen.

Although mere presence at the scene of a crime is insufficient to sustain a conviction, it is not necessary to sustain a conviction that a person physically be the perpetrator of the offense. Section 306(b)(3) of the Pennsylvania Crimes Code, 18 Pa.C.S. § 306(b)(3), provides for criminal responsibility on the part of one who is an accomplice of another person in the commission of a crime. An accomplice includes one who, with the intent of promoting or facilitating the commission of an offense, “aids or agrees or attempts to aid such other person in planning or committing it.” 18 Pa.C.S. § 306(c)(1)(ii). See also: Commonwealth v. Everett, 297 Pa.Super. 320, 327-328, 443 A.2d 1142, 1145 (1982); Commonwealth v. Wilson, 294 Pa.Super. 101, 439 A.2d 770 (1982); Commonwealth v. Jackson, 271 Pa.Super. 181, 134-135, 412 A.2d 610, 612 (1979).

The trial court, in arresting judgment, concluded that the Commonwealth’s evidence proved only that appellee was an “innocent bystander.” We disagree. The circumstances surrounding the commission of the crime and the circumstances existing at the time of arrest were sufficient to permit an inference that appellee and Coleman were engaged in an unlawful confederation whose purpose was to take from Callen at knifepoint his money and the taxi which he was driving. The evidence, therefore, was sufficient to sustain the fact finder’s finding that appellee was criminally responsible for the robbery and related offenses. The order arresting judgment will be reversed.

Reversed and remanded for further proceedings. Jurisdiction is not retained.


text:
    493 A.2d 780
    Ursula R. BLISS, v. Appellant, Mark C. BLISS, Appellee.
    Superior Court of Pennsylvania.
    Argued March 18, 1985.
    Filed May 31, 1985.

      Bernard M. Berman, Media, for appellant.
    Frederick W. McBrien, Norristown, for appellee.
    Before WIEAND, WATKINS and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

After a state court having jurisdiction to do so has entered an order for the support of a child, can the court thereafter act sua sponte and without notice to the parties to terminate the support order and transfer the case to the courts of another state because the parties have moved their residences from Pennsylvania? We hold that it cannot. Therefore, we reverse the order of the trial court.

On November 3, 1978, Mark Bliss and Ursula Bliss, residents of Chester County, entered an agreed order requiring Mark to pay the sum of $80 per week for the support of his son, Christopher. Subsequently, Mark moved to New York; and Ursula, who had custody of Christopher, returned with her son to her native Germany. On January 16, 1981, the parties filed an agreement to modify the prior support order. Their agreement included the following: “[husband] herein hereby submits to the jurisdiction of the appropriate Chester County Domestic Relations Office for child support matters only and agrees to submit to the jurisdiction of any court for enforcement of child support matters regardless of the residence of the parties----” The support order was modified by court order on August 20, 1981. A further modification occurred, by and with the agreement of the parties, on January 27, 1983.

On January 25, 1984, without notice to the parties, the court “heard” a request by its Domestic Relations Officer to transfer the support order to New York and close the matter in Chester County. On March 28, 1984, the court acted sua sponte to transfer the support order to the courts of New York and terminate all proceedings in Chester County, effective January 25, 1984. The record does not disclose that notice of the court’s order was ever given to either party. Ursula’s attorney learned of the order by chance and promptly, on May 7, 1984, filed a petition requesting the court to vacate its transfer order. This petition was dismissed on July 6, 1984. Ursula appealed.

The law is clear that the courts of Chester County had jurisdiction to enter a valid order of support against Mark, a resident of Chester County. See: Pa.R.C.P. 1910.-2(a). It is equally clear that the court retained jurisdiction thereafter to enforce its order. It did not lose jurisdiction merely because the parties subsequently moved out of Chester County. Commonwealth ex rel. Jones v. Jones, 272 Pa.Super. 417, 419, 416 A.2d 526, 526-527 (1979); Commonwealth ex rel. Fiebig v. Fiebig, 258 Pa.Super. 300, 304, 392 A.2d 804, 806 (1978); Commonwealth v. Peters, 178 Pa.Super. 82, 87, 113 A.2d 327, 329 (1955). Accord: Commonwealth ex rel. Davidow v. Davidow, 223 Pa.Super. 99, 103, 296 A.2d 862, 863 (1972). Moreover, Mark had expressly consented to the continuing jurisdiction of the court of Chester County. See: Commonwealth ex rel. Slossberg v. Slossberg, 208 Pa.Super. 419, 421, 222 A.2d 490, 491 (1966).

The trial court relied erroneously upon Pa.R.C.P. 1910.8. This rule provides, in part, that “[f]or the convenience of parties and witnesses the court may transfer an action to the appropriate court of any other county where the action could have been brought originally or at the time of transfer.” This is a rule embodying the concept of forum non conveniens. It provides for a change of venue in support actions under substantially the same standards established for civil actions by Pa.R.C.P. 1006(d). The rule, however, permits transfers only between courts of the several counties in Pennsylvania. It does not purport to sanction interstate transfers. It is also significant that although the rule, as distinguished from Rule 1006(d), does not expressly require a petition by one of the parties, it does not allow a court to act without notice to the parties who have chosen the forum in which to litigate the action for support.

The trial court, although appearing to recognize that Rule 1910.8 did not authorize interstate transfers, concluded that a transfer to another state on the court’s initiative and without notice was “consistent with the spirit of Rule 1910.8.” This reasoning must be rejected. By transferring the matter sua sponte to New York and terminating the order in Chester County, the trial court came into conflict with the decided cases and also with Pa.R.C.P. 1910.18(b) which provides:

Subsequent proceedings to enforce an order ... may be brought in the court which entered the support order or the court of a county to which the order has been transferred.

This option to decide in which court to seek enforcement rests with the party seeking to enforce the order and not with the court in which the support order was entered.

When the court terminated the order in Chester County it deprived the child and his mother of a support order that could be enforced, whether by contempt proceedings, wage attachment or by execution on a judgment for arrearages. See: Pa.R.C.P. 1910.20. The father has thus been able to escape the constraints of the order entered in Chester County. To enforce the duty of support which the father owes, appellant must commence a new action. This is an unjust and improper result. When it permitted the same, the trial court committed manifest error. The support order had been validly entered by a court having full jurisdiction. The court could not terminate that order sua sponte and without notice merely because the parties subsequently moved out of state or because of difficulty experienced in enforcing the support order.

The order terminating the prior order of support is reversed, and the support order, as last modified on January 27, 1983, is reinstated.

      . Mark failed to pay the order regularly, and it appears that several checks were returned for insufficient funds. The opinion of the trial court suggests that difficulty experienced in enforcing the support order was the principal reason for terminating the order and transferring the entire proceedings to New York.

      . The record also does not disclose that any court in New York has accepted the Chester County order. Appellant argues, therefore, that the court in Chester County has effectively deprived her of any enforceable order for the support of her son.


author: DEL SOLE, Judge:

text:
    493 A.2d 782
    William G. DITCH and Rita C. Ditch v. YORKTOWNE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed May 31, 1985.

      Nevin Stetler, York, for appellant.
    John R. Fernan, Ridgway, for appellees.
    Before DEL SOLE, HESTER and FEENEY , JJ.

       Judge John M. Feeney, of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   DEL SOLE, Judge:

We are asked to interpret the language contained in a policy of insurance carried on Appellee’s home after the home was partially destroyed by fire on November 17, 1982. Appellees completed repairs of the damaged portions of the home at a cost of $10,915. Incidental expenses amounted to an additional $1,551.89. Appellant offered payment for the incidental expenses but disputed the amount owed for repair costs. Both parties submitted pleadings to the court and moved for summary judgment based on the lack of any issues of material fact and on the terms of the insurance policy. The court granted summary judgment in favor of the insureds, Appellees, and this appeal followed.

The dispute arose over the following insurance provision:

2. If at the time of the loss the amount of insurance in this policy on the damaged building is less than 80% of the full replacement cost of the building prior to the loss, we will pay the larger of the following amounts, but not exceeding the limit of liability under this policy applying to the building:
a. the actual cash value of that part of the building damaged; or
b. that proportion of the cost to repair or replace, without deduction for depreciation, of that part of the building damaged, which the total amount of insurance in this policy on the damaged building bears to 80% of the replacement cost of the building.

The insureds, Appellees herein, carried the policy having a face value of $25,000. They argued to the trial court that “replacement cost” should be interpreted as the market value of a similar structure in the neighborhood. Attached to their pleading was a list of selling prices of similar homes in the area ranging from $14,000 to $23,000. The court approved this reasoning and granted summary judgment in favor of Appellees. Appellant argues that this interpretation of “full replacement cost” is contrary to the plain meaning of the policy of insurance and the law of Pennsylvania. “Full replacement cost”, Appellant claims, should be read as the cost of rebuilding the equivalent structure on the same premises as of the date of the fire with no depreciation deduction. The cost to rebuild the home immediately prior to the date of the fire would have been $63,000. Because the value of the policy was only $25,000, Appellant argues, the home was underinsured, and eighty percent of the full replacement cost would be $50,-000. Therefore, Appellant claims liability under the co-insurance provision, i.e. for 50% of the expenses incurred in repairing the damaged home, which would be $5,392.30 plus the incidental expenses of $1,551.89. The trial court, relying on the insured’s interpretation, erred in finding that the eighty percent replacement value required was met by the insureds and by awarding them the entire cost of repairing the home. Although interpretation of an insurance policy is a question of law for the court, Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891 (1984), a court may not “rewrite an insurance contract or construe clear and unambiguous language to mean other than what it says.” Blocker v. Aetna Casualty and Surety Co., 232 Pa.Super. 111, 114, 332 A.2d 476, 478 (1975). The operative issue is whether this provision is ambiguous. We find that it is not.

If this policy provision were ambiguous, reasonably intelligent men considering the provision in the context of the entire policy would honestly differ as to its meaning. Patterson v. Reliance Insurance Companies, 332 Pa.Super. 592, 596, 481 A.2d 947, 949 (1984). Under the law of Pennsylvania, the term “replacement cost” is not ambiguous, and the trial court erred in adopting an inconsistent interpretation.

Appellant maintains that “actual cash value”, “replacement value and market value” have established and distinct definitions under Pennsylvania law. ‘ “Actual cash value” is the actual cost of repair or replacement less depreciation.’ Canulli v. Allstate Insurance Co., 315 Pa.Super. 460, 462 A.2d 286 (1983). See: Farber v. Perkiomen Mutual Insurance Co., 370 Pa. 480, 481-82, 88 A.2d 776, 777 (1952). ‘ “Replacement cost” is the actual cost of repair or replacement without deduction for depreciation.’ Canulli, supra, 315 Pa.Superior Ct. at 463, 462 A.2d at 287. See: Reese v. Northern Insurance Co. of New York, 207 Pa.Super. 19, 215 A.2d 266 (1965). The Supreme Court of Pennsylvania defined “market value” to mean:

Generally speaking, actual cash value does not mean market value, as the term is understood. Market value, as here urged, embodies what a purchaser is willing to buy and feels justified in paying for property which one is willing but not required to sell. Market value includes factors of time, place, circumstance, use and benefit; depreciation is included, but one figure is the result of these considerations, the price to be paid. Ordinarily actual cash value has no relation to any of these factors; it is value under all times, such as the cost of manufacturing or building or book value. The policy intended something different from market value; the latter includes “depreciation,” while the “actual cash value” of the policy is to be diminished by “depreciation”. Actual cash value in a policy of insurance means what it would cost to replace a building or a chattel as of the date of the fire. Fedas v. Insurance Co. of State of Pennsylvania, 300 Pa. 555, 562, 151 A. 285 (1930).

Appellees persuaded the trial court to accept the term “full replacement cost” to mean the equivalent of market value or the cost to purchase a similar property or structure in the vicinity. This is not “replacement cost” as the term is defined in the quoted case law.

In Reese v. Northern Insurance Co. of New York, supra, a policy with very similar provisions as in this case was litigated. Plaintiffs home was totally destroyed by fire. The actual cash value of the home was determined to be $9,000.00 and was paid by the insurance company. The insureds sought to recover the difference between this sum and the replacement cost of the home, which was a depreciation factor of $4,230.47. The face value of the policy was $15,000. According to the policy terms, plaintiff was to receive the smallest amount of: the value of the policy, the replacement cost, or the actual amount expended in rebuilding. This Court found that plaintiffs were entitled to the replacement cost whether or not they rebuilt.

After citing the above case law, we cannot agree with the trial court’s conclusion that “full replacement cost” is ambiguous. Turning to the present facts, the cost to replace Appellee’s home would be $63,261.00. Under the co-insurance provisions, approved by the Pennsylvania Supreme Court in Farber v. Perkiomen Mutual Insurance Co., 370 Pa. 480, 88 A.2d 776 (1952), would require Appellees to carry $50,608.80 worth of insurance on their home (80% of the full replacement cost). Appellees, with only $25,000 of insurance coverage, were underinsured for the home. Appellant, therefore, is correct in assessing its liability under the policy to be 50% of the cost to repair ($10,915.59) or $5,392.30.

Therefore, we affirm the granting of summary judgment in favor of the Appellees but reduce the amount of the judgment to $6,944.19 which includes $5,392.30, allowable cost of repairs, plus $1,551.89 recoverable incidental expenses. We make the adjustment since the amounts involved have been agreed to by the parties.

Judgment affirmed as modified. Jurisdiction relinquished.

      . Because the trial court found that the "full replacement cost” provision was ambiguous, the court was required to construe the ambiguity in favor of the insureds (as the nondrafting party). Patterson v. Reliance Insurance Co., 332 Pa.Super. 592, 481 A.2d 947 (1984).


author: PER CURIAM:

text:
    493 A.2d 785
    George S. HACKETT, Appellant, v. David E. SICKLE and Judith I. Sickle, Appellees.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed May 31, 1985.

      Cletus P. Lyman, Philadelphia, for appellant.
    Charles H. Saylor, Sunbury, for appellees.
    Before WIEAND, WATKINS and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   PER CURIAM:

When this action in equity came before the chancellor for trial, he received no evidence. Instead, the chancellor entered an order which summarily dismissed the complaint. The plaintiff appealed. We reverse and remand for further proceedings.

George Hackett commenced an action to enjoin his neighbors, David and Judith Sickle, from using the sewer lateral on Hackett’s land to carry Sickle sewage to the public sewer line in Market Street, Sunbury. The Sickles filed an answer and counterclaim in which they alleged that they had an easement, either by grant or prescription, to use the lateral line which, in any event, encroached upon their land. Hack-ett moved to amend his complaint to include a claim for damages, which the court denied. The Sickles filed a motion for summary judgment, which the trial court did not decide.

When the case was called for trial, no evidence was received. Instead, the trial court asked plaintiffs counsel to make an offer of proof. After an offer of proof had been made, the chancellor dismissed the complaint. In support of his order, the chancellor subsequently prepared an opinion in which he said that it “appears” that Hacketf s sewer lateral encroaches upon Sickles’ land and that, therefore, Hackett’s cause of action is barred by the doctrine of “unclean hands.”

In our effort to understand this unorthodox procedure, we have concluded that the chancellor’s order must be treated as an order entering summary judgment. A summary judgment, however, was clearly improper. The averments of Hackett’s complaint were sufficient to state a cause of action, and the responsive pleading filed by the Sickles demonstrated the existence of disputed facts material to the rights of the parties in and to the sewer lateral. Not the least of the disputed factual issues was the precise location of the lateral sewer line. The record does not support the chancellor’s summary finding that the sewer lateral encroached upon appellee’s land. Moreover, the chancellor’s refusal to hear and adjudicate appellant’s cause of action because he believed that at some point the line encroached upon appellee’s land was an incorrect application of the clean hands doctrine.

The procedure adopted by the trial court was wholly irregular, and its action dismissing the complaint prior to trial and without receiving evidence must be reversed. See: Allegheny County v. Milk Control Commission, 417 Pa. 22, 207 A.2d 838 (1965); Swainbank v. Yoder, 79 Pa.Super. 132 (1922). See also: 18 P.L.E. Injunction § 89 (1959).

Reversed and remanded for proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

      . This was an abuse of discretion. Upon remand, the amendment should be allowed.

      . The chancellor has specifically stated that he did not decide the motion for summary judgment.


text:
    493 A.2d 1358
    Joseph M. KEARNS and Elizabeth Jane Kearns, H/W, Appellees, v. William R. CLARK, M.D., Appellant. Joseph M. KEARNS and Elizabeth Jane Kearns, H/W, v. RIDDLE MEMORIAL HOSPITAL and Marie T. Burke, M.D. Appeal of RIDDLE MEMORIAL HOSPITAL.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed April 12, 1985.
    Reargument Denied June 19, 1985.

      J. Grant McCabe, III, Philadelphia, for appellant (at 2997).
    James E. Beasley, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

Dr. William R. Clark performed a hysterectomy for Elizabeth Jane Kearns at the Riddle Memorial Hospital. He was assisted by Dr. Johnson, an employee of the hospital. Eight days later, after Mrs. Kearns had continued to complain of pain, it was discovered that she had a blocked ureter. This, it was shown, had been caused by a wayward suture placed in the ureter. The left kidney thereafter became diseased and died, and it became necessary to remove the same. Mrs. Kearns and her husband filed separate actions against Dr. Clark and the hospital, which were consolidated and tried before a jury. The jury returned a verdict finding both defendants negligent and awarding damages of $203,000 to the wife-plaintiff and $105,000 to the husband-plaintiff. Post-trial motions were denied, and the verdicts were reduced to judgment. Dr. Clark and the hospital appealed.

I. DR. CLARK’S LIABILITY.

In reviewing a denial of a motion for judgment n.o.v., the evidence and all reasonable inferences therefrom must be considered in the light most favorable to the verdict winner. Aiello v. Ed Saxe Real Estate Inc., 327 Pa.Super. 429, 435, 476 A.2d 27, 29 (1984); Reichman v. Wallach, 306 Pa.Super. 177, 184, 452 A.2d 501, 505 (1982). A judgment n.o.v. should be entered only in clear cases, and all doubt should be resolved in favor of the verdict winner. Rivera v. Philadelphia Theological Seminary, 326 Pa.Super. 509, 521, 474 A.2d 605, 609 (1984); Reichman v. Wallach, 306 Pa.Super. at 184-185, 452 A.2d at 505. A motion for judgment n.o.v. can properly be granted only “when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case.” Aiello v. Ed Saxe Real Estate Inc., supra 327 Pa.Super. at 433, 476 A.2d at 29.

The evidence in this case was sufficient, if believed, to show that Dr. Clark had failed to identify and protect the ureter, had sutured the ureter, thereby causing it to be obstructed, and had failed to provide adequate post-operative care. The obstruction to the ureter prevented the passage of urine from the kidney into the bladder and thereby caused a painful swelling of the kidney. A failure to correct it promptly, a jury could find, caused the death and ultimate loss of the kidney.

Appellees were not required to exclude every possible explanation for the loss of Mrs. Kearns’ kidney. “[I]t is enough that reasonable minds are able to conclude that the preponderance of the evidence shows defendant’s conduct to have been a substantial cause of the harm to plaintiff.” Hamil v. Bashline, 481 Pa. 256, 266, 392 A.2d 1280, 1285 (1978). The evidence in this case was sufficient to sustain the finding of the jury that Dr. Clark had negligently caused the injuries of which Mrs. Kearns complained.

The trial court also found that the jury’s verdict imposing liability on Dr. Clark was not against the weight of the evidence. We will reverse only for a manifest abuse of discretion. Mattox v. Philadelphia, 308 Pa.Super. 111, 115, 454 A.2d 46, 48 (1982). We find no abuse of discretion in this case.

Dr. Clark argues in support of his motion for new trial that Dr. Varano, a urologist, was incompetent to evaluate and express an opinion about the performance of Dr. Clark, a gynecologist. In considering whether to order a new trial because of the trial court’s ruling that Dr. Varano was qualified to testify as an expert, we keep in mind that the ruling was within the sound discretion of the trial court. We will not order a new trial unless the ruling was so clearly erroneous as to constitute an abuse of discretion. Dambacher v. Mallis, 336 Pa.Super. 22, 37, 485 A.2d 408, 415 (1984). In Regan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974), a surgeon was permitted to express an opinion that death of tissue had been caused by x-ray radiation. It was argued that because he was a surgeon and not a radiologist he should not have been permitted to testify as an expert. This Court held: “Due to the witness's familiarity with the use of x-ray and his knowledge of the results of radiation given in massive doses, we find no abuse of discretion on the part of the trial judge in admitting his testimony.” Id., 229 Pa.Superior Ct. at 522, 331 A.2d at 728. Accord: Christy v. Darr, 78 Pa.Cmwlth. 354, 359, 467 A.2d 1362, 1364-1365 (1983) (neurosurgeon permitted to testify regarding double vision and loss of hearing suffered by the plaintiff); Workmen’s Compensation Appeal Board v. Jones & Laughlin Steel Corp., 22 Pa.Cmwlth. 469, 472, 349 A.2d 793, 795 (1975) (orthopedist permitted to testify as expert regarding urological and psychological effect of fractured pelvis). Dr. Varano, a urologist, was familiar with the pre-operative identification and protection of ureters and had assisted in the performance of prior hysterectomies. The trial court did not commit an abuse of discretion by allowing him to testify as an expert witness.

£3,4] In the motion for new trial filed in this case, Dr. Clark averred “the Court erred with respect to its charge.” In his appellate brief, Dr. Clark states the sufficiency of the trial court’s jury instructions as follows:

THE CHARGE OF THE COURT BELOW FAILED CLEARLY AND CORRECTLY TO DEFINE THE ISSUES TO BE RESOLVED BY THE JURY; FAILED ACCURATELY, IMPARTIALLY AND WITHOUT PREJUDICE TO DEFENDANTS TO STATE IN PLAIN LANGUAGE THE APPLICABLE PRINCIPLES OF LAW GOVERNING THE ISSUES OF LIABILITY AND CAUSATION PRESENTED AT TRIAL; AND FAILED TO ASSIST THE JURY IN APPLYING SUCH LEGAL PRINCIPLES TO THE FACTS OF THE CASE PRESENTED....

It is questionable whether the motion for new trial and appellate brief are sufficient to preserve for appellate review the issue of whether the trial court should have charged on principles of liability in view of the fact that the jury was required to answer a series of special interrogatories. In any event, the interrogatories used in this case were general, and the trial court’s instructions regarding negligence, causation and liability were appropriate. Dr. Clark has failed to direct our attention to any specific error of omission or commission by the trial court, and our own review suggests a general charge which was free of error. When an appellate court reviews a trial judge’s charge to the jury, it must view the charge as a whole in order to determine if error occurred. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983).

Dr. Clark also argues that the trial judge prevented the jury from considering his defense of superseding cause. He offered specific points for charge on this defense, which the court declined to use. Instead, the trial judge stated that he would cover the defense generally in his charge. Dr. Clark asserts that the general charge failed to instruct the jury adequately regarding superseding cause and that this was prejudicial error. “A trial judge has wide latitude in charging the jury, and may use any particular language provided the language used adequately and fully conveys to the jury the law applicable to the facts of the case.” Fish v. Gosnell, 316 Pa.Super. 565, 580, 463 A.2d 1042, 1050 (1983). Accord: Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966). The trial court correctly charged the jury on causation and, with respect to other causes, stated: “The fact that some other factor may have been a contributing cause of an injury does not relieve a defendant of liability, unless you find that such other cause would have produced the injury complained of independently of his negligence.” This was sufficient.

It is also contended that the trial court committed prejudicial error by refusing to allow certain documents to be taken into the deliberating room during the jury’s deliberations. Specifically, the trial judge excluded the curriculum vitae of two defense expert witnesses, an expert witness’ report, and Dr. Clark’s patient records of Mrs. Kearns. “The general rule in Pennsylvania is that exhibits properly admitted into evidence, with the exception of depositions and transcripts of testimony, may, within the discretion of the trial court, be sent out with the jury.” Wilson v. Pennsylvania Railroad Co., 421 Pa. 419, 432 n. 8, 219 A.2d 666, 673 n. 8 (1966). Accord: Solomon v. Luria, 213 Pa.Super. 87, 246 A.2d 435 (1968). We conclude that the trial judge in this case did not abuse his discretion by refusing to permit the jurors to take out with them the exhibits which had been received in evidence. The substantive matters in the two curriculum vitae were received as testimony during the qualification of Dr. Goodner and Dr. Hill as experts. The educational backgrounds and professional credentials of each were fully described and discussed. Similarly, the four page report of Dr. Goodner was the subject of direct testimony and cross-examination, during which portions of the report were read into the record. The relevant substance of these three documents, therefore, was placed before the jury, and it was within the judge’s discretion to withhold the actual documents from the jury during the period of its deliberations.

The patient records of Mrs. Kearns raised a different concern. The medical terms and notations contained therein were subject to misinterpretation in the absence of explanation. These records had been received in evidence, and any party could have made reference thereto or directed the jury’s attention to specific entries. However, it was within the trial judge’s discretion to curtail the jury’s unfettered examination of complete records kept by Dr. Clark during his care and treatment of Mrs. Kearns.

II. THE LIABILITY OF RIDDLE MEMORIAL HOSPITAL.

Dr. Johnson, an employee of the hospital, assisted Dr. Clark in performing the hysterectomy. The evidence of improper pre-surgical identification of the ureter and the suturing thereof had equal application to Dr. Johnson. Indeed, the evidence was that he had done the suturing on the side where the kidney was lost. When we consider the evidence and all reasonable inferences therefrom in the light most favorable to Mr. & Mrs. Kearns, the verdict winners, it seems patently clear that there was sufficient evidence to show that Dr. Johnson was negligent and that the hospital was vicariously liable therefor.

We reject the hospital’s contention that it was unfairly surprised when, at trial, the plaintiffs attempted to premise hospital liability on the negligence of Dr. Johnson. The complaint had alleged negligent care by the “agents, servants and employees” of the hospital, and an answer to interrogatories included “interns and residents.” The fact that Dr. Johnson was a “house doctor” rather than a “resident” was an insignificant variance and not an adequate reason for excluding evidence of his negligence. His role was readily apparent from an examination of the hospital’s records. It was also disclosed at the pre-trial conference. The trial court did not err in refusing to exclude his negligence as a basis for imputing negligence vicariously to the hospital. There was no surprise.

During cross-examination of Dr. Clark, counsel for the hospital read aloud various portions of the complaint which had been filed against Dr. Clark, apparently to show plaintiffs’ averments that he believed Clark alone had been negligent. Plaintiffs’ counsel thereafter read portions of the complaint filed against the hospital. When the hospital attempted to read its answer to these averments, an objection was sustained. The hospital contends that this was error. We disagree. The conduct of a trial is within the discretion of the trial judge, and his exercise of discretion will not be reversed in the absence of an abuse thereof. See: Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 433, 442 A.2d 1114, 1129 (1982); DeFulvio v. Holst, 239 Pa.Super. 66, 68, 362 A.2d 1098, 1099 (1976). The trial court specifically instructed the jurors about the nature of a complaint and cautioned them regarding its limited use and value. It was not an abuse of discretion to deny a request to read the answer to the jury. Similarly, we find no abuse of discretion in the trial court’s refusal to read to the jury those points for charge submitted by the hospital which would have served only to remind the jury about pre-trial proceedings in which Dr. Clark had been alleged to be solely liable.

III. DAMAGES.

The trial court told the jury that the wife-plaintiff's claim was made up of seven parts. The husband-plaintiff’s claim, the jury was told, had three elements. The court then said: “After you consider each of those elements as to each claim, you then add all of these elements together into one single lump sum verdict for each of the two plaintiffs.” With respect to the wife-plaintiff, the court said, inter alia, that she was:

entitled to be compensated for any loss or reduction of future earning capacity that you find that she will suffer as a result of this incident. In determining this amount you must ascertain the difference between the yearly amount she probably would or could have earned but for the injury and the amount which she probably will be able to earn during the period of any disability. You may consider the type of work that she has done, the type of work which in view of her physical condition, education, experience and age she would have been doing and will be doing in the future, the extent and duration of her injury, together with all the other matters reasonably relevant.

With respect to the husband’s claim for future medical bills, the court told the jury: “Plaintiff-husband is also entitled to be compensated for all medical expenses which you find that he will reasonably incur in the future for the treatment and care of his wife’s continuing injury.”

Appellants argue, and we are constrained to agree, that this was error. There was not one iota of evidence upon which to make an award for loss of future earning capacity or for future medical expenses. The only evidence pertaining in any way to future earnings came from Mrs. Kearns. She testified that she had returned to work on September 20, 1975, more than five years prior to trial, at the same salary which she had been receiving when admitted to the hospital for a hysterectomy on May 12, 1975. There was no medical or lay evidence that her future earning capacity would be impaired in any way. Similarly, there was no evidence from which a jury could find that future medical expenses were likely. Although the testimony showed that Mrs. Kearns had had a kidney removed, there was no evidence that any future medical expenses would be incurred. Not even the plaintiffs predicted that they would incur future medical expenses because Mrs. Kearns had only one kidney or that there was a loss of future earning capacity because of the loss of one kidney.

In Gordon v. Trovato, 234 Pa.Super. 279, 286, 338 A.2d 653, 657 (1975), this Court said:

The law requires not merely conjecture, but rather sufficient data from which the damages can be assessed with reasonable certainty. Macan v. Scandinavia Belting Company, 264 Pa. 384, 107 A. 750 (1919). This view was followed in Carroll v. Pittsburgh Railways Company, 200 Pa.Super. 80, 187 A.2d 293 (1962), where the court stated: “Loss of earning power and its amount must appear by proper and satisfactory proof and not be left to conjecture.” 200 Pa.Super. at 84, 187 A.2d at 295. There must be evidence upon which a jury’s conclusion may be based. Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959). Since clearly in this case the jury was permitted, by speculation and conjecture, to determine wage loss, we have no difficulty in declaring error in its submission.

The “plaintiff must establish that [her] economic horizon has been shortened.” O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 280, 423 A.2d 1251, 1255 (1980). If a plaintiff proves that his or her ability to perform the duties of employment has been impaired, a jury can award damages for loss of future earning power even though the loss has not been translated by evidence into a precise monetary figure. See: Pratt v. Stein, 298 Pa.Super. 92, 133-135, 444 A.2d 674, 696-697 (1982). However, in order for a jury to be permitted to consider a future loss of earning power, it is necessary that there be competent evidence of the likelihood that disability will continue in the future. Evidence that permanent injury has been sustained is not equivalent to evidence that future earning capacity has been impaired. Carroll v. Pittsburgh Railways Co., 200 Pa.Super. 80, 84, 187 A.2d 293, 295 (1962). There must be some evidence from which a jury can reasonably infer that earning power will probably be reduced or limited in the future. See: Baccore v. Mennella, 246 Pa.Super. 53, 55-56, 369 A.2d 806, 807 (1976). In this case there was none; and, as we have observed, the wife-plaintiff’s work record suggested no basis for finding that there would be a future loss. This error was compounded when the trial court instructed the jury that the wife-plaintiff had a working life expectancy of 11.3 years. There was no evidence of this fact. Life expectancy tables had not been offered or received in evidence and there had been no other evidence or agreement to support the court’s instruction.

Similarly, a jury will not be permitted to speculate about future medical expenses when there is no evidence that future expenses will be incurred. Here, there was evidence that Mrs. Kearns had lost a kidney and feared the consequences of losing the other. This was a proper consideration in making an award of damages. Whether she would ever incur future medical expenses because of this condition, however, was wholly speculative. There simply was no evidence one way or the other. The mere possibility of future damages was insufficient. Because an award of future medical expenses could not possibly have been based on anything but pure speculation, it was error to instruct the jury that an award for future medical expenses should be made to the husband-plaintiff. See: Greenburg v. McCabe, 453 F.Supp. 765 (E.D.Pa.1978), aff'd, 594 F.2d 854 (3rd Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979). Compare: Berman v. Philadelphia Board of Education, 310 Pa.Super. 153, 456 A.2d 545 (1983) (where patient’s doctor testified to anticipated need in ten to twelve years to recap damaged teeth and to the estimated cost of replacing caps, jury could properly make award therefor); O'Malley v. Peerless Petroleum, Inc., supra (recovery permitted where patient’s physician testified to approximate cost of plastic surgery to restore damaged ears at $10,600 and likelihood that patient would elect to undergo such surgery); Pratt v. Stein, supra (ample evidence for jury to award future medical expenses based on (a) continuing need for chiropractic treatment due to permanent nature of patient’s disability and (b) cost of past chiropractic treatment).

The liability issue in this case was capably tried by able counsel. The plaintiffs commendably conceded in answers to pre-trial interrogatories that they did not anticipate a loss of future earning capacity and identified no anticipated future medical expenses. At trial, they made no effort to prove that Mrs. Kearns’ loss of a kidney would produce a future loss of earnings or additional medical expenses. Mrs. Kearns, in fact, testified that she had returned to work more than five years prior to trial at the same salary she had been receiving prior to her hospitalization. We are unable to comprehend, under these circumstances, why the trial court overruled appellants’ objections and nevertheless instructed the jury that plaintiffs were entitled to recover damages for loss of future earning power and future medical costs. Because this was clearly error, we are compelled to reverse and remand for a new trial. Because the issue of liability has been fairly litigated, however, the new trial should be limited to the issue of plaintiffs’ damages.

Reversed and remanded for a new trial limited to damages. Jurisdiction is not retained.

      . The hospital, in its brief and supplemental brief, discusses at great length the law regarding the amendment of complaints which introduce new causes of action. The hospital contends that the plaintiffs, in essence, stated a new cause of action after the running of the statute of limitations by claiming the negligence of Dr. Johnson just prior to trial. Our disposition of the hospital’s argument regarding notice and surprise adequately disposes of this argument. We note, however, that the hospital's argument is misplaced. Appellees did not attempt to effectuate an amendment of their complaint; and their assertion at trial of Dr. Johnson’s negligence did not have the effect of adding a new cause of action.

      . An answer to a defense interrogatory concerning future loss of earning capacity stated: “Unknown, no future loss anticipated____”

      . The remaining kidney was healthy.

      . Prior medical expenses incurred by the husband-plaintiff on account of his wife were in the amount of $7,536.45.


author:
OLSZEWSKI, Judge:
      ROWLEY, Judge,

text:
    493 A.2d 1365
    COMMONWEALTH of Pennsylvania v. Ricky D. PINKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 19, 1984.
    Filed April 19, 1985.
    Reargument Denied July 1, 1985.

      David J. Graban, Sharon, for appellant.
    Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellee.
    Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

Appellant challenges his conviction for murder of the second degree, robbery and criminal conspiracy. For the reasons below, we reverse his conviction and remand for a new trial.

Appellant was one of six individuals charged with murder, robbery and conspiracy following the armed robbery of the owner and patrons of Porreca’s Restaurant & Bar. The other men were Henry (“Henny Penny”) Bruce, who pleaded guilty to second degree murder, robbery and conspiracy; Eugene Grannison, convicted by a jury of the same; Albert Phillips, who pleaded guilty to third degree murder, robbery and conspiracy; Albert Boatwright, who pleaded guilty to third degree murder; and Anthony Wells, acquitted by a jury of all charges.

On January 9, 1982, at approximately 9:30 p.m., three young men entered Porreca’s Restaurant; Wells held a shotgun, Bruce a revolver, and Boatwright acted as bag-man. Phillips and Grannison remained outside in the getaway vehicle. In the course of the robbery, one man was beaten and another killed.

Appellant was not among the five robbers that night. He did, however, supply at least one of their weapons. Commonwealth proceeded on the theory that Wells, Boatwright, Phillips, Grannison, and Bruce, had agreed at the Colony Bar to rob a place to get some money. Wells called appellant and explained he needed a “piece” to get some money. The five men drove to appellant’s house. Wells entered and returned with a loaded .32 caliber revolver and, possibly, a shotgun. The men continued to Porreca’s Restaurant. When Wells split the proceeds of the robbery, he set aside a share for appellant.

Informants implicated appellant in the Porreca murder/robbery. Pursuant to that information, the police devised a scheme by which appellant was lured from the house and appellant’s mother was induced to search for the gun. When confronted with the gun, appellant confessed that he had supplied the weapon to Wells. He denied further involvement with the crime.

Charged with murder, robbery, and conspiracy, appellant filed a timely pre-trial motion to suppress, inter alia, use of the gun and his own statement. The suppression court denied that motion. The court also rejected a motion in limine to exclude from appellant’s trial statements of Tony Wells, who had been acquitted of all charges.

Bruce and Boatwright testified at appellant’s trial. Wells did not appear; his statements were, however, introduced against appellant. A jury returned a verdict of guilty on all counts.

Appellant first argues that the Commonwealth violated his Sixth Amendment rights by introducing against him the out-of-court statements of Tony Wells. The statements offered under the co-conspirators exceptions were: (1) Wells’ assertion, before he led the others to appellant’s house, that he knew where to get some guns and (2) his declaration, while dividing the money from the robbery, that he was holding a share for appellant. Appellant argues that Wells’ prior acquittal on all charges bars admission of these statements under the co-conspirator’s exception. Then, assuming arguendo, the propriety of their admission under that standard, he contends that use of Wells’s statements, where Wells did not appear in court and the Commonwealth had failed to establish Wells’s unavailability, violated his (appellant’s) rights under the Confrontation Clause of the Sixth Amendment.

It is well-settled that statements of a conspirator made during the course of a conspiracy, in furtherance of that conspiracy, are admissible against a co-conspirator if independent evidence establishes the existence of a conspiracy and the membership of the defendant and declarant therein. Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981). The courts employ a fiction that the conspirators, acting in concert, act as one; the statements of one conspirator so become the admissions of another. Wells’ acquittal of all charges does not bar admission of his statements under the co-conspirator’s exception. See, e.g., United States v. Cravero, 545 F.2d 406 (5th Cir.1976). Acquittal on a charge of criminal conspiracy means simply that Commonwealth has failed to prove beyond a reasonable doubt all elements of the offense. 18 Pa.C.S. Sec. 903. A lesser showing of proof is required when Commonwealth seeks to introduce evidence under the co-conspirator’s exception. Commonwealth need only establish the conspiracy by a fair preponderance of the evidence independent of the challenged testimony. Commonwealth v. Hirsch, 225 Pa. Super. 494, 311 A.2d 679 (1973).

Wells’ statements made to his cohorts concerned the procurement of weapons for and the divisions of proceeds from the illicit venture. The statements themselves could fairly give rise to an inference of conspiracy. It would follow that the statements were made in the course of, and in furtherance of the conspiracy. They were not, however, made in appellant’s presence. A question remains as to whether the Commonwealth did establish by independent evidence appellant’s membership in the conspiracy.

At trial, the five patrons present during the robbery testified. None knew appellant; none could place him at Porreca’s that night. A sixth witness, James Pruitt, testified that sometime before the robbery, he had seen Wells, Grannison, Bruce, Phillips and Boatwright sitting talking in the Colony Restaurant, another neighborhood bar. The only conversation Pruitt heard was Wells talking about women. Albert C. Lowe took the stand and corroborated Pruitt’s testimony.

Frank T. White, a Sharon policeman, stated that following the burglary, he had confronted appellant with a .32 caliber pistol. Appellant responded with a statement. When faced with that statement and the fact that the gun had been recovered, Boatwright admitted his involvement in the Porreca robbery/slaying. White’s partner, Edward Tomko introduced a map purporting to show that Wells, Grannison, Boatwright, Bruce and Phillips all lived in the same general vicinity. On cross-examination, Tomko explained how he had used appellant’s statement to confront Boatwright. That testimony reflected what Tomko told Boatwright appellant had said, not what appellant had actually said. Tomko, working from appellant’s statement, stated that Tony Wells had come to appellant’s house that night to borrow a gun. Wells had told appellant that he wanted some money. When the five arrived at appellant’s home, appellant said that he went outside and saw Boatwright in the car. He did not talk to him. Albert C. Lowe took the stand and corroborated Pruitt’s testimony.

Although there may be sufficient evidence to permit a reasonable inference of appellant’s complicity in the enterprise, admission of the hearsay statements constitutes serious and therefore reversible error because it deprived appellant of his Sixth Amendment right to confrontation. The Commonwealth failed either to produce Tony Wells at trial or to adduce reasons for his unavailability. Because the independent evidence upon which the Commonwealth relied for introduction of the out-of-court statements was so tenuous, it was highly important that any out-of-court statements be unequivocal and that the declarant be subject to searching cross-examination. See Commonwealth v. Graves, 316 Pa.Super. 484, 463 A.2d 467 (1983) (distinguishing accomplice and co-conspirator).

In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court recognized that the confrontation clause and the hearsay rule “stem from the same roots,” but stated that “the Court has never equated the two, and we decline to do so____” Id. at 86, 91 S.Ct. at 218. The confrontation clause issue and the evidentiary-question therefore must be separately analyzed, and the sixth amendment may require exclusion of the evidence even though admissible under the co-conspirator’s exception. See United States v. Gibbs, 739 F.2d 838, 852 (3rd Cir.1984) (Rosenn, J., dissenting).

In Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597 (1980), the Supreme Court identified two restrictions that the confrontation clause places on the use of hearsay evidence in criminal trials. First, the prosecution generally must establish that the hearsay evidence is necessary because the declarant is unavailable. Second, the hearsay statement must be reliable. “Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’ ” Id. at 64, 100 S.Ct. at 2538 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934)). In the instant case, the necessity aspect of this test has not been met. Wells did not testify; Commonwealth failed to establish his “unavailability.” Therefore, there is no need to reach the question whether the reliability prong has been satisfied.

Although the literal language of the sixth amendment guarantees to any accused “the right ... to be confronted with the witnesses against him,” the Supreme Court has recognized that the need to use extrajudicial statements may arise because of the declarant’s unavailability. Appellant maintains that Wells was not legally unavailable to testify and that therefore there was not need to for introduction of his out-of-court statements. The Commonwealth contends that a showing of unavailability is not required. Further, it argues that appellant had a chance to subpoena Wells but chose not to do so.

The Supreme Court discussed the unavailability component of the confrontation clause in Ohio v. Roberts, supra:

(I)n conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case ... the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.

448 U.S. at 65, 100 S.Ct. at 2538. A witness may be deemed “unavailable” only if the prosecution has made “a good faith effort to obtain his presence at trial.” Id. at 74, 100 S.Ct. at 2543 (emphasis in original) (quoting Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968). And, under the foregoing language in Ohio v. Roberts, it is the prosecution that must produce or demonstrate the unavailability of a declarant. The Court did not impose any burden on the accused to show that the declarant is available. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (right to confrontation guaranteed in state courts under the Fourteenth Amendment Due Process Clause).

The classic case of “unavailability” arises where the co-conspirator is awaiting his own trial on the same or related charges or, where already convicted, the co-conspirator is facing sentencing or appeal. In the instant case, Wells was acquitted of all charges before appellant came to trial. Wells had no remaining privilege to claim. Because there is nothing in the record to indicate that the Commonwealth ever established that Wells could refuse to testify against appellant, the Commonwealth failed to carry its burden of demonstrating the declarant’s legal unavailability-

In a footnote, the Roberts Court suggested that “(a) demonstration of unavailability, however, is not always required,” id., 448 U.S. at 65 n. 7, 100 S.Ct. at 2538 n. 7. To support this proposition, the Court cited Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), in which it had permitted the admission of coconspirator hearsay in circumstances where a seemingly available declarant was not called to testify. The Roberts Court described Dutton as a case where the requirement of unavailability could be dispensed with because “the utility of trial confrontation” would have been “remote.” See 448 U.S. at 65 n. 7, 100 S.Ct. at 2538 n. 7. Here, Wells’ statements do not. fall within the Dutton exception to the unavailability requirement because they are crucial to conviction, and not “of peripheral significance at most,” as in Dutton, 400 U.S. at 87, 91 S.Ct. at 219. Appellant’s conviction cannot rest on unexplored hearsay.

The instant case is also distinguishable from Dutton because the Commonwealth has not carried its burden of showing that the hearsay was “marked with such trustworthiness,” Ohio v. Roberts, 448 U.S. at 65, 100 S.Ct. at 2539, to justify disregarding the unavailability requirement. Here, the relayers of Wells’ statements were Wells’ companions, convicted and awaiting sentencing.

The opportunity to cross-examine an accuser or a critical witness is a powerful tool in the search for truth and in the assessment of guilt or innocence. The confrontation clause, in the words of the Supreme Court contemplates:

a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

Ohio v. Roberts, 448 U.S. at 63-64, 100 S.Ct. at 2538. Because the right of confrontation is so important to our adversarial system, it may only be denied in exceptional situations. The Commonwealth has not met its burden to show the existence of such a situation.

Admission of Wells’ statements without affording appellant the opportunity to cross-examine the declarant sharply tipped the scales against the accused. For that reason, we remand this case for a new trial.

We address so many of the remaining issues as are relevant in light of our decision today. Appellant argues that his Fourth Amendment guarantee against unlawful search and seizure was violated, resulting in the seizure of the murder weapon and inducement of appellant’s inculpatory statement. We hold that there was no violation of appellant’s Fourth Amendment rights and rule that the weapon and statement were properly admitted into evidence.

The suppression court made extensive findings of fact. Having satisfied ourselves that the record supports those findings, we adopt the facts found by the suppression court:

1. The defendant is charged with felony murder, robbery, and conspiracy to commit robbery arising out of the murder/robbery which occurred at Porreca’s Bar on January 9, 1982.
2. On January 26, 1982, the Sharon Police, through informants had four names including that of the defendant and one Alfred Boatwright, as being involved in the planning and execution of the robbery and murder. The police then believed that the gun used in the murder was a gun that belonged to the defendant’s mother and that the defendant had driven the getaway car.
3. On January 27, 1982, the defendant resided at his mother’s home at 1037 Hamilton Avenue, Farrell, Pennsylvania. The house was rented by Mrs. Pinkins as lessee and she and the defendant occupied the house as well as the defendant’s sister and brother.
4. On January 27, 1982, the defendant was on parole from a prior conviction of burglary. On that date the Sharon Police contacted the defendant’s parole officer. They asked him to arrange it so that the defendant would be out of his mother’s home that morning in order that they could talk to the defendant’s mother without hindrance about her gun and to avoid the defendant removing, hiding, or destroying the evidence which might be at the mother’s home.
5. Pursuant thereto, the parole officer went to the Pin-kins’ home and told the defendant a mostly false story which required the defendant’s presence at the police station. But for the request of the police department, the parole officer would not have seen or requested Pinkins to leave the house with him that morning.
6. Upon arrival at the mother’s house the police informed the mother that her son was suspected of being a participant in the robbery/murder at Porrecca’s Bar and that the murder gun was her gun.
7. Mrs. Pinkins became upset and denied that she had seen the gun for over one year. She did admit to having a gun registered in her name and she produced a box of shells for that gun from her bedroom.
8. Mrs. Pinkins gave the police express permission to search her entire house without exception, but the police declined stating she knew her house better than they did. Prior to giving consent to search to the police, she informed them that it was her house, that she was incontrol over the house, and that she was responsible for the house. She further stated that the others lived there in the house under her guidelines and that she was the head of the house. The permission she gave the police to search the house was without exception and she did not state nor indicate that they were not permitted to enter the defendant’s bedroom, or that they might be unable to get access into that bedroom or that it might be locked, or that there was in fact anywhere in the house they could not go.
9. Although the police declined the search, they asked Mrs. Pinkins if she would search the house and if she did find the gun to let the police know. The police stressed the importance of finding the gun, that it was in her son’s best interest to find the gun, and was urged to make a very extensive search (“needle by needle”). Once the gun was found, she was told the police could begin to unravel what had occurred, and it would be important to her son if they could place him somewhere other than behind the trigger.
10. The finding of the gun would also be of importance to Mrs. Pinkins in that she had been informed that it was her gun that had been used, she had produced a box of shells from her bedroom, and the necessary implication was that if she produced the murder gun, it would help exculp her from any belief that she, too, was involved.
11. At the time the police went to talk with Mrs. Pin-kins, they did not have a search warrant nor did they have enough information to be able to obtain a valid search warrant for Mrs. Pinkins’ home.
12. When Mrs. Pinkins agreed to search the house, she at no time stated or indicated to the police that she did not have the right to enter her son’s room for the search, or that she did not have access thereto, or that it might be locked. She in fact indicated to the contrary, and upon the police leaving she immediately and readily went to her son’s room with her daughter and other son, searched it and quickly obtained the gun. Mrs. Pinkins made no attempt to try to get the defendant’s consent to search the room or wait until her return or indicated any necessity therefor.
13. Within ten minutes after the police left the Pinkins’ house, they received a call from Mrs. Pinkins stating that she had found the gun. When they returned she produced a .32 caliber chrome two-inch barrel Clerk revolver. This gun was the weapon used to kill the deceased, Orland Porrecca.
14. The gun was found by Mrs. Pinkins in a jacket pocket in the closet in the defendant’s bedroom. The defendant normally kept the gun in his jacket pocket or on the floor of the closet.
15. The registered owner of the murder gun was the defendant’s mother, Mrs. Pinkins. On at least one prior occasion during the preceding year, she had asked the defendant about the gun because she wanted it. He did not give it to her.
16. Upon receipt of the gun the police interviewed the defendant at the Farrell Police Department. After properly giving the defendant his Miranda Rights, which he waived, the defendant was interrogated. The defendant at first continually denied any involvement, but upon being shown the gun, he gave a statement inculpating himself as an accomplice in the murder/robbery. The production of the gun was the cause of the defendant giving the inculpating statement.
17. After the defendant’s statement and on that same date, a co-defendant, Alfred Boatwright, was interviewed. He had previously denied any complicity in the crime. During this interview Boatwright was informed that Pin-kins had confessed implicating him, and Boatwright gave a complete statement inculpating himself and other including the defendant, Pinkins. Prior to confessing Boat-wright stated that he was full or remorse and concern, stating that he wished to clear his conscience and “get it off his chest.” This at least in part motivated his confession.
18. Boatwright’s statement by itself would have provided a proper basis for a search warrant of the Pinkins’ house. It implicated Pinkins and identified him as the source of the murder gun. The police would have used this statement to obtain a search warrant, and in fact searched the Pinkins’ house for the gun had they not already had it in their possession.
19. On January 27, 1982, the defendant was laid off from work but paid money or its equivalent as rent to his mother.
20. The defendant occupied a separate bedroom on the second floor of his mother’s house. He had a key to the bedroom door and he occasionally locked the door.
21. On January 27, 1982, the door to the defendant’s bedroom was unlocked and partially open when his mother came to wake him to advise him his parole officer was there. The defendant did not lock the door to the bedroom when he left with his parole officer, nor did the mother find the room locked when she went to search for the gun.
22. The defendant’s room was cleaned occasionally by his sister who he paid to do that, but he did not insist on being present whenever she cleaned.
23. The defendant’s clothes were washed by his mother and she could go into his bedroom to get his clothes.
24. The defendant’s sister who lived at the mother’s house did not pay rent, and if the defendant did not or could not pay rent, he would not be thrown out or asked to leave. The payment of rent was not a condition of his occupancy of his bedroom.
25. After the mother had found the gun in his room, the defendant never objected nor asked why she had gone into the bedroom without obtaining her permission.
26. While the defendant had a key to the bedroom which he occasionally used, there was also another key which would open the door to his bedroom. This was kept in the back door of the house. The defendant’s key and the key in the back door were “skeleton” keys that opened several doors throughout the house including the back porch door.
27. While the other would generally knock before entering the defendant’s room, it was not required that she do so by the defendant.
28. The defendant never told his mother not to go into his room without his consent and he never told his mother that he did not want her in his room.
29. There were inconsistencies between the testimony of the mother and the defendant. On several issues their testimony was less than candid.
30. The mother, Mrs. Pinkins, rents the house at 1037 Hamilton Avenue, Farrell, Pennsylvania, under the Section 8 Scattered Site Housing Program.

We begin our analysis by noting that the Fourth Amendment applies only to governmental agents and not to private citizens. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). Where, as here, Mrs. Pinkins may have conducted the search at the urging of the police, we will regard her as an instrument of the government to whom Fourth Amendment proscriptions apply. Commonwealth v. Borecky, 277 Pa.Super. 244, 419 A.2d 753 (1980).

Our determination that Fourth Amendment considerations apply leads us to examine whether appellant had a reasonable expectation of privacy concerning his closet and the gun. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Commonwealth v. Sell, 288 Pa.Super. 371, 432 A.2d 206 (1981). Reasonableness is measured in the context of the totality of the circumstances. Commonwealth v. Latshaw, 481 Pa. 298, 392 A.2d 1301 (1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979).

Under the circumstances of this case we find that Commonwealth v. Lowery, 305 Pa.Super. 66, 451 A.2d 245 (1982) (Popovich, J., joining) is directly on point. In Lowery, the police approached the mother of the nineteen year old defendant and requested permission to search the defendant’s bedroom. The search yielded an amount of LSD. This Court upheld the search, finding that the defendant did not have a reasonable expectation of privacy in the invaded place. Id., 305 Pa.Superior Ct. at 72, 451 A.2d at 248. The defendant failed to demonstrate an overt indication of privacy in his family household. Id., 305 Pa.Superior Ct. at 70, 451 A.2d at 247, citing Commonwealth v. Reiland, 241 Pa.Super. 109, 359 A.2d 811 (1976). The court found no protected landlord-tenant relationship despite the defendant’s monthly one hundred dollar rental payment. 305 Pa.Super. at 72, 451 A.2d at 248. Instead, the court viewed as dispositive the fact that the defendant’s mother regularly entered his room on a variety of household tasks. The defendant did not protest when family members entered his room. Further, there was testimony that the defendant never locked his door. The court concluded that the defendant’s mother possessed a common authority over the premises with concomitant right to permit a government search. Id., 305 Pa.Superior Ct. at 72, 451 A.2d at 248, citing United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

The case sub judice presents a virtually identical fact situation. Appellant was lured away from the house by his parole officer. Police then approached Mrs. Pinkins and informed her that appellant was a suspect in the robbery/murder and that the murder weapon was her gun. Mrs. Pinkins gave the police express permission, which they declined, to search her house. She told the police that she was in control of the house and that the household lived under her guidelines. The police asked Mrs. Pinkins to search for the gun and to notify the police if she found the gun. After the police departed, Mrs. Pinkins located the gun in appellant’s bedroom closet, which had a closed door blocked by a couch, and notified the authorities. Upon receipt of the gun, the police interviewed appellant, who properly waived his Miranda rights and gave an inculpato-ry statement.

We hold that the weapon was properly seized and that the gun and the statement were properly admitted into evidence. As in Lowery, appellant had no reasonable expectation of privacy, notwithstanding his payment of three hundred dollars per month rent. Appellant’s mother and sister on occasion entered his room to clean and remove laundry. Appellant never forbade family members’ entering his bedroom. We find unpersuasive evidence that a couch barred access to the closet door. In light of the totality of the circumstances, furniture arrangement, without more, is not an overt indication of an expectation of privacy.

Appellant, relying on Lowery, argues that the police subjected Mrs. Pinkins to excessive duress and coercion, and that the search was not voluntary. Reviewing the testimony, we cannot say Mrs. Pinkins’ will was overborne. Finally, we agree with the court below that principles of property law should be considered in evaluating an individual’s expectation of privacy. See Commonwealth v. Lowery, 305 Pa.Super. at 70, 451 A.2d at 247. Mrs. Pinkins, as registered owner of the gun, had the right to search for the gun which she had given to her son to hold for her. Cf. Leitch v. Sanford Motor Truck Company, 279 Pa. 160, 123 A. 658 (1924) (in a bailment at will the owner of possession may follow his property wherever found and reclaim it). Mrs. Pinkins properly recovered her gun; thus the gun and resulting statement were admissible into evidence.

Appellant next argues that the prior acquittal of Tony Wells severs any connection appellant might have had with the murder/robbery conspiracy. The gist of appellant’s argument is that his involvement was limited to complicity with Tony Wells. In effect, appellant and Wells formed a two person conspiracy tangential to the multi-person conspiracy. It is true that prior acquittal of an accused’s sole co-conspirator will preclude conviction of the accused. Commonwealth v. Campbell, 257 Pa.Super. 160, 390 A.2d 761 (1978), affirmed, 484 Pa. 387, 399 A.2d 130 (1979), questioned in Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980). Wells’ acquittal does not, however, put the Commonwealth out of court. The Commonwealth, to establish liability, must prove that appellant conspired with the other members of the group, viz., Boatwright, Grannison, Phillips and Bruce.

Because Wells’ statements formed the linchpin of Commonwealth’s case, the lower court erred in failing to instruct the jury that Wells had been acquitted of all charges in the episode. The court, instructing the jury, did explain that the testimony of Boatwright and Bruce was subject to close scrutiny as the product of a “corrupt source.” On retrial, the court should apprise the jurors of Wells’ status to enable them to weigh his statements properly. Whether this is to be accomplished by special interrogatories or a simple instruction, we leave to the trial court’s discretion.

Judgment of sentence is vacated and case remanded for a new trial.

ROWLEY, J., files a dissenting statement.

ROWLEY, Judge,

dissenting:

I respectfully dissent.

I agree with the majority that there is sufficient independent evidence to permit a reasonable inference of the appellant’s participation in the conspiracy so that the testimony of Bruce and Boatwright concerning the statements of Wells was properly admitted as an exception to the Hearsay Rule. See Commonwealth v. Sullivan, 472 Pa. 129, 159-160, 371 A.2d 468, 482-483 (1977).

However, I do not agree that appellant’s Sixth Amendment right of confrontation was violated by the admission of the testimony. The trial court relied on the decision in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), in holding that the testimony concerning the statements by Wells was admissible. Before us, reliance is placed on the decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), to reach a contrary result. In my opinion, however, Ohio v. Roberts is distinguishable and not controlling.

In Ohio v. Roberts, the issue was whether or not a transcript of the testimony of a preliminary hearing witness could be used by the Government in rebuttal. The Court there emphasized that before the transcript could be utilized it was necessary to establish the unavailability of the witness. In this case, as in Dutton v. Evans, we are dealing, not with the admissibility of a transcript, but with the testimony of two live witnesses who appellant confronted and cross-examined. Moreover, the need to establish the reliability of the evidence is met in this case by, among other things, the appellant’s own statement which corroborates the statements attributed to Mr. Wells. As in Dut-ton, then, the issue in this case “does not involve evidence in any sense crucial or devastating.” Id., 400 U.S. at 87, 91 S.Ct. at 219. Therefore, I would affirm the judgment of sentence on the trial court’s well-reasoned opinion.