author: MONTEMURO, Judge:

text:
    576 A.2d 992
    Anthony and Marlene PATITUCCI, Individually and as Parents and Natural Guardians of James Patitucci, A Minor v. Thomas W. LAVERTY and Peter M. Pino. Appeal of NATIONWIDE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted April 4, 1990.
    Filed June 6, 1990.

      Frederick C. Fletcher, III, Philadelphia, for appellant.
    Robert M. Sitoski, Philadelphia, for appellee.
    Alan C. Ostrow, Asst. City Sol., Philadelphia, for City of Philadelphia, participating party.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal filed by the Nationwide Insurance Company. Nationwide challenges the trial court’s imposition of sanctions under Philadelphia Local Rule 170 for unreasonable refusal to settle. Nationwide argues that the trial court abused its discretion in finding that Rule 170 applies under the circumstances of the present case. Further, Nationwide contends that Rule 170 is unconstitutional. We reverse.

In July of 1979, James Patitucci, a minor at the time,, filed a complaint against Thomas W. Laverty and Peter M. Pino. Patitucci claimed that Laverty negligently operated a vehicle owned by Pino on September 20, 1977, causing Patitucci to be struck by the vehicle while he was crossing a street. Patitucci claimed, inter alia, that Laverty was operating the vehicle at an excessive rate of speed, failed to have the vehicle under control, and failed to keep a proper lookout for pedestrians. In answer to interrogatories, Patitucci stated that as a result of the accident, he suffered “contusions of the left arm and left leg; pain and discomfort of the rib and left shoulder areas; comminuted fracture of the left tibia.” Patitucci stated that he continues to suffer pain in the rib and shoulder area, on occasion around the fracture site, and that his leg is deformed at the site of the fracture. Patitucci listed the following medical costs in his interrogatory answers:

Methodist Hospital $ 40.00 and $1,469.00

Phillip J. Marone, M.D. $290.00

Medicine $ 50.00

Additionally, Patitucci claimed that, as a result of his injuries from the accident, he missed four months and three days of employment as a stock boy at Sonny’s Deli in Philadelphia.

The defendants denied negligence on the part of Laverty and, throughout the course of this matter, maintained that Patitucci’s own negligence had been the cause of this accident and thus his unfortunate injuries. Nationwide, in its appellate brief, states that its insured, Laverty, “advised the carrier that the plaintiff ran into the street without looking and outside of any crosswalk.” Brief for Appellant at 6. The police report concerning this accident contains the following:

Operator 1: Thomas W. LAVERTY____ Interviewed at his residence 12:15 PM 9-20-77, he states that: He was going west on Snyder Avenue. That he was on the right side of the street. That he was going approx. 20 MPH. That as he approached the corner of Etting Street he saw the pedestrian. That the pedestrian was approx. 6' in front of his car, that he was running fast. That he came from his right. That he jammed on the brakes and swerved the [sic] pedestrian was approx, in the middle of the W. bound lane. He states that the pedestrian was running at an angle, toward the front of his car. He states that if the pedestrian ran straight across, he would not have struck him.
Pedestrian: James PATTITICCI [sic]____ Interviewed in the X-Ray dept, of the Methodist Hospital 10:40 AM 9-20-77, in the presence of his mother, Marlene Pattitucci [sic], he states that: He was running to catch a bus. That he ran off the sidewalk at Etting Avenue towards the bus stop, crossing Snyder Avenue. He states that he did not see the car but that he heard the brakes screech. He motioned that the car came from the left. That it struck him on the left leg. He states that he does not know what part of the car struck him.
WITNESSES:
Raymond DiAntonio____ Interviewed at the scene 9:80 AM 9-20-77. At the time of the accident was at the 2nd floor room of his residence. Has good unobstructed line of sight____ He states that: The pedestrian was running to catch a bus going E. on Snyder Avenue. He point out [sic] the bus stop, on the S. side of Snyder Avenue____ He states that as the pedestrian ran into Snyder Avenue out of Etting Street, there was a car coming East on Snyder Avenue. He states that the pedestrian saw that car, but never looked to his left, for West bound traffic. That the pedestrian was running on an angle across Snyder Avenue, towards the bus stop when he got hit____ He further states that there was nothing the driver could have done to avoid striking the pedestrian.
RESULTS OF INVESTIGATION:
Statement of witness is that the pedestrian was running across Snyder Avenue from Etting Street, running at an angle towards the S.E., out of the crosswalk when he was struck.
Operator 1 states that when he first saw the pedestrian he was approx. 6' in front of his auto, running, at an angle towards the front of his car. Pedestrian stating [sic] that he was running to catch a bus, but does not know where on the highway he was struck. Skid marks ... 12' out of the E. crosswalk of Etting Street. Request this case be considered closed with no further Police Action.

R.R. at 40a-41a.

In August of 1985, Judge I. Raymond Kremer of the Court of Common Pleas of Philadelphia County held a pre-trial conference in this matter. Following this, the court filed a Memorandum of Pre-Trial Conference and Case Management Order which included the following statements: “Plaintiff makes a demand of policy limits of $25,-000. Defendant makes an offer of $2,000. The court makes a recommendation of $19,500. Upon consideration of all of the facts and all aspects of liability and damages and of the reasonable probabilities as to the anticipated results, defendant’s offer unreasonably exposes defendant to an excess verdict and a failure of the defendant’s carrier to make a settlement as recommended should be regarded as an unreasonable refusal to settle.” Op. of Trial Court, February 28, 1987, at 4. “The Case Management Order placed the parties 'on notice that the court will invoke Rule 170, if appropriate.’ ” Id. at 5. Nationwide offered $10,000 to settle the case prior to trial, but this was not accepted by Patitucci. Patitucci indicated that he was willing to accept the court’s recommendation of $19,500. Following trial, the jury assessed the causal negligence of Laverty at sixty percent, and the contributory negligence of Patitucci at forty percent. The jury assessed damages at $84,000. This was reduced to $50,400 to reflect Laverty’s causal negligence. When delay damages were considered, the trial court entered a molded verdict against Laverty in the amount of $81,109.48. Counsel later advised the trial court that the parties had settled the case for $60,000, which was $35,000 in excess of Nationwide’s policy coverage.

The trial court subsequently held a hearing to determine whether sanctions under Philadelphia General Civil Rule 170 were in order against Nationwide. Rule 170 provides:

Rule 170. Sanctions for Failure to Settle.
A “A party” under this regulation shall mean a named party and/or his insurance carrier.
B If [sic] any action tried by a jury in which the sole relief sought is money damages, the Trial Judge on his/her own motion or on motion of any party may direct the attorneys for the parties to appear for settlement conference.
C Prior to the termination of the settlement conference, the Trial Judge shall determine whether he/she can fairly evaluate the settlement value of the case.
D Should the Trial Judge determine that he/she can fairly evaluate the settlement value of the case, he or she shall promptly advise the attorneys for the parties of the evaluation, and the evaluation with the parties’ agreement or non-agreement with it shall be recorded and made a part of the action.
E Should the case be tried to verdict and prior to the verdict one of the parties has agreed to accept or pay the amount recommended by the Trial Judge, then, if the final judgment is twenty percent (20%) or more than the Trial Judge’s evaluation and the plaintiff has agreed to accept the Trial Judge’s recommendation ... then the Trial Judge may, within ten (10) days after the final judgment, schedule a hearing to determine whether or not any sanctions shall be ordered against the party who had refused to settle.
F The Trial Judge shall determine whether or not sanctions shall be ordered under this Rule.
G The Trial Judge shall give at least ten (10) days’ notice of the hearing to the party involved. The party involved shall have the right to appear with counsel and to present such evidence as may be appropriate.
H In exercising discretion as to whether or not sanctions should be imposed under this rule, the Trial Judge shall be guided by the following factors and criteria:
1 The final settlement demand and the final settlement offer and the reasons therefor.
2 The appraisal of the Trial Judge of the fair settlement value of the case.
3 Whether there was any substantial merit to the plaintiffs claim or any substantial merit to the defense of the action.
4 Whether the plaintiffs evidence of damages was exaggerated or whether the defendant’s evidence unduly minimized plaintiffs damages.
5 Whether any change of conditions subsequent to the date of the Trial Judge’s recommendation might account for the variation between the latter’s recommendation and the jury’s verdict, or substantiate a party’s refusal to accept the Trial Judge’s recommendation.
I In the event that the Trial Judge determines that sanctions shall be ordered against the party who refused to settle, he/she may order the party to pay the County of Philadelphia the reasonable costs incurred as a result of the party’s refusal to settle, which costs shall be in accordance with the attached itemizations. In no event shall the order exceed ten percent (10%) of the judgment or Trial Judge’s recommendation, whichever is higher.
Comment:
This general court regulation is intended to encourage settlement of those cases which experience shows can and should be settled if the parties are reasonable, and which, if not settled, tie up courtroom and court personnel for unreasonable periods of time.
The Regulation is not a penalty but is meant to impose, in proper cases, the actual cost of a trial upon the party who is obstinate, unreasonable or capricious.
The Conference Judge is urged to consider all factors before deciding to invoke the Regulation, including whether there are any valid jury questions as to liability or damages. In such cases, the Judge should do his utmost to effect a settlement without the necessity of invoking the Regulation. As indicated, it should be utilized to sanction a party whose attitude toward settlement is unreasonable under the circumstances____

On February 18, 1986, a hearing was held by Judge Kremer concerning Rule 170. Nationwide’s attorney advised the court that based upon the statements of Laverty, and the contents of the police report, Nationwide classified the instant case as a “dart out” case, which are generally “cases that can be defended.” R.R. at 100a. Counsel for Nationwide also emphasized the description of the accident offered by the eyewitness, Mr. DiAntonio, to the police. Id. at 101a. Counsel stated his view, as the litigator of the case, that he thought the case “could be won on ... liability.” Id. at 103a. Our review of the transcript of the February 18, 1986, fails to reveal other argument concerning the merits of the position that Nationwide’s refusal to settle this case was unreasonable, obstinate, or capricious, based upon the underlying facts and circumstances of the lawsuit instituted by Patitucci.

Judge Kremer imposed a Rule 170 sanction against Nationwide in the amount of $8,110.95. In so doing, the court made a finding that there “has been an unreasonable use and abuse of the valuable facilities of this Commonwealth” by Nationwide. Op. of Trial Court, February 28, 1987, at 19. The court stated that this finding was based upon “clear and convincing evidence.” Id. A review of Judge Kremer’s Opinion reveals a conclusory discussion of the basis for his rejection of Nationwide’s claim that because they viewed the case as defensible, their conduct in not settling the case was reasonable and justified. Judge Kremer states only the following explanations in his Opinion:

The settlement in excess of policy coverage is an indication that Nationwide acknowledged it had unreasonably refused to settle. The verdict was more than four times the originally rejected recommendation and the settlement was more than three times the originally rejected recommendation. The amount of the verdict was reasonable and should have been anticipated from the credible evidence---- [This case] was a very simple case involving the collision of a motor vehicle with a pedestrian minor with admitted injuries, which cried out for settlement prior to trial. It was unreasonable for the insurance carrier to pretend that it might be the prevailing party. There was no reasonable basis for the insurance carrier to refuse to settle____ Questions of potential comparative negligence were raised by the parties and evaluated by the court prior to trial. The trial judge considered these issues fully when it made its very modest recommendation for settlement____ The “substantial merit” exception to the imposition of Rule 170 as suggested by counsel for defendants does not apply under the facts of this case.

Id. at 6, 14, and 18.

Although Nationwide originally sought an appeal from Judge Kremer’s decision, this Court in July of 1988 remanded so that an en banc panel of the Philadelphia Court of Common Pleas could consider the case. 381 Pa.Super. 665, 548 A.2d 646. A hearing was held before Judge Kremer, Judge Armand Della Porta, and Judge Curtis C. Carson, Jr., on November 28, 1988. At this hearing, counsel for Nationwide again presented the argument that based upon the police report, the statements of Laverty, and other pretrial discovery, Nationwide “expected that we would go into court and that it wouldn’t be sixty/forty against us, it would be sixty/forty in our favor, maybe even more than that.” R.R. at 167a. Counsel for Nationwide further argued as follows: “In a dart out case such as this where there is a real substantial question of liability, not only by virtue of the pleadings, but by virtue of what we see in investigation before the case even gets into suit____ This was a close case of liability.” Id. at 168a. For most of the proceeding, the judges discussed among themselves the interpretation and scope of Rule 170. The imposition of the Rule 170 sanction was ultimately affirmed by two judges. Judge Armand Della Porta dissented on the grounds that the provisions of Rule 170 did not support the imposition of the sanction because the defense of comparative negligence had substantial merit, giving the defendant the right to proceed to trial. Judge Della Porta noted that the jury’s assessment of forty percent causal negligence to Patitucci suggests the credence of this position.

In finding the Rule 170 sanctions proper, the court en banc reasoned as follows:

The trial judge did consider the merits of the defense. That was only one factor. That was why the court made a settlement recommendation of only $19,500 in the face of an ultimate jury verdict of $81,109.48 (including delay damages after deduction of 40% for comparative negligence).
The court indicated in its Opinion of February 28, 1989 that it also considered other factors such as:
1) the pre-trial warning and notice that an offer of $2,000 was an unreasonable refusal to settle and exposure of the defendant to an excess verdict;
2) that the insurance carrier admitted it unreasonably refused to settle by paying $35,000 in excess of the policy limits of $25,000 after the verdict;
3) that the insurance carrier offered $9,000 and then $10,000 shortly before trial;
4) that the trial judge concluded that “The amount of the verdict was reasonable and should have been anticipated from the credible evidence.”
4) that the trial judge concluded that “the jury was, if anything, overly fair to the defendant.”

Op. of Trial Court, September 15, 1989, at 6-7.

In DeFazio v. Labe, 352 Pa.Super. 120, 507 A.2d 410 (1986), aff'd. 518 Pa. 390, 543 A.2d 540 (1988), this Court set forth the following principles of law which are controlling presently:

It is without dispute that a local court has the right to promulgate local rules of procedure. Ricci v. Ricci, 318 Pa.Super. 445, 447, 465 A.2d 38, 39 (1983). We also recognize:
that procedural rules, either at the state or local level, are absolutely essential to the orderly administration of justice and the smooth and efficient operation of the judicial process. Every court has a limited power to made such rules as the interest of justice or the business of the court may require. 42 Pa.C.S. § 323.
Equipment Finance, Inc. v. Toth, 328 Pa.Super. 351, 355, 476 A.2d 1366, 1369 (1984). Additionally, it is well-settled that “(t)he application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule and we will interfere only where the court commits an abuse of discretion.”

DeFazio, supra at 125, 507 A.2d at 413 (citations omitted).

Based upon the content of the police report, which outlined the statements of Patitucci, Laverty, and the eyewitness DiAntonio, we are constrained to find that the trial court abused its discretion in characterizing Nationwide’s refusal to settle as “obstinate, unreasonable, or capricious.” There is nothing in the record to support the trial court’s finding that at the time Nationwide refused to settle this case, their decision was unreasonable. Further, there is nothing in Judge Kremer’s Opinion of February 28, 1987, to explain his conclusion that “the ‘substantial merit’ exception to the imposition of Rule 170 as suggested by counsel for defendants does not apply under the facts of this case.” Op. of Trial Court, February 28, 1987, at 18. We must reject the trial court’s reliance on Nationwide’s settlement after trial as an admission on the part of Nationwide that its pre-trial refusal to settle was not reasonable. Based upon the trial court’s own settlement recommendation, the jury’s verdict was higher than anticipated by both the court and the parties. However, faced with a jury verdict, Nationwide was able to reach a settlement which reflected the jury’s findings. In reviewing the provisions of Rule 170, we find the language of the Rule and its clear intent envisions that the trial court, when determining whether to impose Rule 170 sanctions, will limit its consideration to the facts and circumstances which existed when the pre-trial settlement negotiations occurred.

In the present case, Nationwide has consistently maintained that, in their view, the present case was one that was defensible because of evidence which pointed to Patitucci’s own negligence as the primary if not sole cause of the accident. Indeed, it would appear from what we have in the record before us that this defense had substantial merit. Thus, we agree with Judge Armand Della Porta that, under the provisions of Rule 170, Nationwide’s conduct cannot properly be characterized as unreasonable for the purpose of imposing sanctions. As we view the evidence which was available at the settlement conference, we find no support for the trial court’s finding that Nationwide’s defense lacked substantial merit. The statements of the eyewitness DiAntonio were favorable to the defense of comparative negligence and corroborated the statements given by Laverty. Further, Patitucci had told the police that he was running to catch a bus at the time he was struck. Under these circumstances, we thus find that the trial court abused its discretion in imposing sanctions upon Nationwide.

Further, we note that although Nationwide did not offer the $19,500 settlement figure recommended by the trial court, Nationwide did make a settlement offer of $10,000. The verdict which was returned in this matter could not have been and was not anticipated by the trial court or the parties. Nationwide had, prior to trial, a defense of substantial merit to the cause of action against their insured which Nationwide believed warranted a defense verdict. Imposing a sanction under these circumstances will not achieve the important goal of Rule 170: to encourage settlement in cases where, if the parties were reasonable, settlement in lieu of trial should occur.

Based upon the foregoing reasons, we reverse and vacate the order of the trial court imposing Rule 170 sanctions upon appellant Nationwide. Jurisdiction is relinquished.

      . At the time of the accident, Patitucci was fifteen years of age.

      . Counsel for the appellant is admonished that much of the police report copied in the Reproduced Record is not legible. We do have a legible copy in our record from the trial court, but it is counsel’s duty to this Court, as well as to his client, to provide this Court with a Reproduced Record which is usable when seeking appellate relief from this Court. See Pa.R.A.P. 2171(a).

      . Our record does not contain any deposition testimony, and the docket reveals that no depositions were filed with the trial court. Thus, the content of any depositions was not considered by Judge Kremer in formulating his settlement recommendation, and should have no effect on the application of Rule 170 to the present case.

      . In the trial brief submitted by Nationwide, Nationwide mentions two "purported” eyewitnesses, not mentioned in the police report, which Nationwide anticipated would be called by plaintiffs at trial. R.R. at 33a. We have no way of knowing whether the testimony of these witnesses was considered by the trial court in formulating the settlement recommendation or in determining whether to impose Rule 170 sanctions. We must assume, based upon the fact that the trial court did not, at any time, mention this testimony, that the court did not consider it or rely upon it. Indeed, during the two hearings held with reference to the imposition of Rule 170 sanctions, before Judge Kremer and then before the court en banc, the only witness named and discussed in the record was Mr. DiAntonio.

      . Based upon our disposition in this case, we need not address the constitutional challenges to Rule 170 raised by Nationwide.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    576 A.2d 999
    Leonard MELSO and Lynn Melso, Husband and Wife, in Their Own Right and as Parents and Natural Guardians of Melissa Miles and Justin Melso, Appellants, v. SUN PIPE LINE COMPANY and Tri-State Telecommunications, Inc. and Davis Enterprises, Appellees, v. E.A. DESIGNS, LTD., Maple Shade Cable Company, Inc., Newtown Township, Newtown Cablevision, Inc. and Jan Gouza and Pickering, Corts & Summerson, Appellees and Additional Defendants. Leonard MELSO and Lynn Melso, Husband and Wife, in Their Own Right and as Parents and Natural Guardians of Melissa Miles and Justin Melso, Appellees, v. SUN PIPE LINE COMPANY and Tri-State Telecommunications, Inc. and Davis Enterprises, Appellees, v. E.A. DESIGNS, LTD., Pennsylvania One-Call System, Inc., Maple Shade Cable Company, Inc., Newtown Township, Newtown Cablevision, Inc. and Jan Gouza and Pickering, Corts & Summerson, Appellees. Appeal of SUN PIPE LINE COMPANY. Leonard MELSO and Lynn Melso, Husband and Wife, in Their Own Right and as Parents and Natural Guardians of Melissa Miles and Justin Melso, Appellants, v. SUN PIPE LINE COMPANY and Tri-State Telecommunications, Inc. and Davis Enterprises, Appellees, v. E.A. DESIGNS, LTD., Maple Shade Cable Company, Inc., Newtown Cablevision, Inc. and Jan Gouza and Pickering, Corts & Summerson, Appellees. Appeal of E.A. DESIGNS, LTD. Leonard MELSO and Lynn Melso, Husband and Wife, in Their Own Right and as Parents and Natural Guardians of Melissa Miles and Justin Melso, Appellants, v. SUN PIPE LINE COMPANY and Tri-State Telecommunications, Inc. and Davis Enterprises, Appellees, v. E.A. DESIGNS, LTD., Maple Shade Cable Company, Inc., Newtown Township, Newtown Cablevision, Inc. and Jan Gouza and Pickering, Corts & Summerson, Appellees. (Two Cases) Appeal of DAVIS ENTERPRISES, Maple Shade Cable Company, Inc. and Newtown Cablevision, Inc. Appeal of Jan GOUZA and Pickering, Corts & Summerson.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1989.
    Filed June 8, 1990.

      Howard J. Creskoff, Philadelphia, for appellants (at 1058) and appellees (at 1139, 1160, 1118 and 1161).
    Patricia M. Starner, Philadelphia, for appellants (at 1058). Bruce J. Chasan, Philadelphia, for Sun Pipe Line, appellant (at 1139) and appellee (at 1058, 1160, 1118 and 1161). Gary Gremminger, Philadelphia, for Gouza and Pickering, Corts & Summerson, appellants (at 1161) and appellees (at 1058, 1139, 1160 and 1118).
    Donald E. Wieand, Jr., Allentown, for Maple Shade Cable Co., appellant (at 1118) and appellee (at 1058 and 1139 and 1160).
    Colleen M. Meehan, Philadelphia, amicus curiae (at 1058).
    Arnold S. Block, Philadelphia, amicus curiae (at 1058).
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   CAVANAUGH, Judge:

This complex litigation is based on an accident involving a petroleum pipeline running through Bucks County, Pennsylvania. On November 12, 1982, underground cables were being installed and workmen for the television cable company struck a fourteen inch pipe carrying petroleum which broke and as a result, some 50,000 gallons of unleaded gasoline flowed into the surrounding soil. The plaintiffs below, Leonard Melso and Lynn Melso, husband and wife, and as parents and natural guardians of Melissa Miles and Justin Melso, commenced an action in trespass in 1983 against Sun Pipe Line Company, Tri-State Telecommunications, Inc. and Davis Enterprises. Subsequently, numerous additional defendants were added, including E.A. Designs, Ltd.; Jan Gouza; Pickering, Corts & Summerson, Inc.; and Pennsylvania One-Call System, Inc.

The facts which were developed established that Davis Enterprises had the television franchise for Newtown Township and it had employed Tri-State Telecommunications for the construction work. E.A. Designs, Ltd. had prepared the construction maps and Jan Gouza, the township engineer, and his firm, Pickering, Corts & Summerson, Inc. had reviewed the drawings.

The plaintiffs below were residents of Newtown Crossing, a housing development located near the site of the accident. Gasoline vapors entered the basements of numerous residences for several months after the accident. The appellants commenced this action to recover for alleged property damages and personal injuries resulting from the gasoline spill. The complaints were based on the alleged negligent acts and omissions of the defendants and in addition, on the allegation that the cross-appellant, Sun Pipe Line Company, was strictly liable.

On February 21, 1985 Rufe, J. certified the action as a class action on the issue of liability. See Cipriani v. Sun Pipe Line Company, 46 Bucks Co. L.R. 249 (1985). On April 22, 1985, Sun Pipe Line Company filed a motion for partial summary judgment on the issue of strict liability. The motion was denied on July 16, 1985. On March 4, 1986 the plaintiffs below filed a motion for partial summary judgment on the issue of strict liability as to Sun Pipe Line and the court granted the motion of the plaintiffs below for partial summary judgment on July 16, 1986.

The liability issue based on negligence was tried before Bortner, J. and a jury in Cipriani v. Sun Pipe Line Company. On October 20, 1986 the jury returned its verdict and apportioned liability as follows: (1) Tri-State Telecommunications, Inc. — 40%; (2) Sun Pipe Line Company — 18%; (3) Jan Gouza — 15%; (4) E.A. Design, Ltd. — 14%; (5) Davis Enterprises — 13%; and (6) Pennsylvania One-Call System, Inc. — 0%. All defendants waived post-trial motions except Gouza and Sun Pipe Line Company and their motions were denied on August 23, 1988. An appeal was filed with this court in Cipriani v. Sun Pipe Line Company at 2857, 2858, 2859 and 3063 Phila.1988.

In September 1989, the damage claim of Leonard Melso, et al. v. Sun Pipe Line Company, et al., which is the subject of this appeal, was tried before Bortner, J. and a jury. The court molded the verdict into one in favor of the defendants. The motions of Leonard Melso, et al. for a new trial and of the defendants below for judgment non obstante veredicto were denied. Direct appeals were filed to this court by Leonard Melso, et al. and cross-appeals were filed by the defendants below.

We will first consider the direct appeal by Leonard Melso, et al. from the order of March 28, 1989 which denied their motion for new trial and entered judgment for the defendants below. Our scope of review in assessing the trial court’s denial of a motion for new trial is whether the court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880 (1988); Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989). The court below, in a carefully reasoned opinion analyzed all of the assertions raised by the appellants, Leonard Melso, et al. as to why they should be granted a new trial. We adopt the opinion of the court below which denied the motion of the plaintiffs below for a new trial and of the defendants for judgment n.o.v.

Cross-appeals were filed by Davis Enterprise at No. 1118 Phila.1989, Sun Pipe Line Company at No. 1139 Phila.1989, E.A. Design, Ltd. at No. 1160 Phila.1989, and Jan Gouza and Pickering, Corts & Summerson at No. 1161 Phila.1989. Cross-appeals were taken from the orders of the court below dated February 21, 1985, April 1, 1985, July 16, 1985, July 16, 1986, August 23, 1988 and March 28, 1989. The appeal of Leonard Melso, et al. at 1058 Phila.1989 was also from the order of March 28, 1989.

Since the orders appealed from in the cross-appeals are so diverse, they must be considered individually. The order of February 21, 1985 by Rufe, J. granted the plaintiffs’, Leonard Melso, et al., motions for class action certification pursuant to Pa. R.C.P. 1710.

The orders of July 16, 1985 and July 16, 1986 are as follows, and it is from these specific orders that Sun Pipe Line Company has filed cross-appeals:

AND NOW, this 16th day of July, 1985, it is hereby ordered that the motion of defendant, Sun Pipe Line Company, for partial summary judgment is denied, dismissed and overruled.
AND NOW, this July 16, 1986, upon the cross-motions of plaintiffs and defendant Sun Pipe Line Co., it is hereby ordered that plaintiffs’ motion for partial summary judgment on the issue of strict liability is hereby granted.

First, we must determine whether the motions of Leonard Melso, et al. to dismiss the cross-appeals filed by the various defendants below should be granted. The order of July 16, 1986 granting the plaintiffs’ motion for partial summary judgment on the issue of strict liability was not appealable until after the entry of the order of March 28, 1989, from which all parties filed timely appeals. That order provided that the motion of plaintiffs, Leonard Melso, et al., for a new trial was denied and judgment was entered for the defendants. We now determine that in the matter before this panel, the appeal from the order of July 16, 1986 was timely filed.

The court below in Cipriani v. Sun Pipe Line Company, 45 D. & C. 3d 135 (1986) found Sun Pipe Line Company strictly liable under §§ 519 and 520 Restatement (Second) of Torts, as it engaged in an abnormally dangerous activity. Accordingly, it entered partial summary judgment in favor of the plaintiffs below. In this the court erred. Summary judgment should be entered only where the pleadings, depositions, answers to interrogatories and admissions on file show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hedlund Manufacturing Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988); Gabovitz v. State Auto Insurance Association, 362 Pa.Super. 17, 523 A.2d 403 (1987); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982); Pa.R.C.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983); Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980). ■ In addition, we must examine the record in the light most favorable to the non-moving party’s pleadings and give the non-mover the benefit of all reasonable inferences to be drawn therefrom. Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987); Metal Bank of America v. Insurance Company of North America, 360 Pa.Super. 350, 520 A.2d 493 (1987). A trial court’s grant of summary judgment will be overturned only if there has been an error of law or clear abuse of discretion. Jones v. Keystone Insurance Co., 364 Pa.Super. 318, 528 A.2d 177 (1987). In the circumstances of this case, we find that the court below abused its discretion in determining that Sun Pipe Line Company was strictly liable for the accident that occurred.

The court must determine as a matter of law whether an activity is abnormally dangerous so that strict liability will be imposed. Albig v. Municipal Authority of Westmoreland County, 348 Pa.Super. 505, 502 A.2d 658 (1985). The court below erred, in our opinion, in determining that the operation of a petroleum pipeline under New-town Crossing was an abnormally dangerous activity so that Sun Pipe Line was subject to liability for harm even if it took all reasonable care and the rupture in the line was caused by the intervening act of a third party. The court below determined that there was potential for pipeline gasoline causing an “environmental catastrophe of considerable magnitude” and “the pipeline transportation of large quantities of gasoline underneath a residential community is neither a matter of common usage, nor an activity appropriate to the place where it is carried on.” In the instant case, the pipeline was in place before the development of New-town Crossing was built. Further, the transmission on land of natural gas and petroleum products by pipeline, train or motor vehicle, is a common activity in a highly industrialized society such as our own.

An analogy between the transmission of natural gas and petroleum products is appropriate. In Hartman v. Citizens Natural Gas Co., 210 Pa. 19, 21, 59 A. 315 (1904) the Supreme Court approved a jury instruction which charged the jury: “The measure of care is not that of an insurer to every one who sustains loss by reason of gas escaping and exploding, but it is liable for an explosion where it knew or by the exercise of ordinary care should have known of the defect in its pipes or mains.” In Anstine v. Columbia Gas of Pennsylvania, Inc., 98 York L.R. 111 (1984) the court refused to impose strict liability under § 520 of the Restatement (Second) of Torts. In Cities Service Pipe Line Company v. United States, 742 F.2d 626 (Fed.Cir.1984) the court rejected the contention that operation of a petroleum pipeline is an abnormally dangerous activity. In our case, the leak was allegedly caused by the intervening negligence of Tri-State Telecommunications, Inc. and the obligation of Sun Pipe Line Company does not rise to that of an insurer.

The court below also imposed strict liability on Sun Pipe Line Company under the Free Pipe Line Act of 1883, 15 Pa.C.S. § 3351(g) which provides, inter alia:

Any company laying a pipeline within this Commonwealth shall be liable for all damages occasioned by leakage, breaking of pipes or tanks, or any negligence in the construction, maintenance or operation thereof.

We do not agree that the Act imposes strict liability on Sun Pipe Line Company as the owner of a pipeline through which petroleum products flow. Behling v. Southwest Penn Pipe Lines, 160 Pa. 359, 28 A. 777 (1894) involved a defendant which operated pipelines for the transportation of oil. A fire broke out near the pipeline and the intense heat caused the pipe to burst. As a result of this, a spray of oil emitted from the pipe toward the plaintiff’s house which caught fire and was destroyed. A verdict was entered for the plaintiff in the court below which was reversed on appeal to the Supreme Court. The plaintiff argued that under the Free Pipe Line Act, the owner of the pipeline was liable. The Supreme Court refused to impose strict liability upon the defendant and instead, inquired as to whether the laying of the defendant’s pipe at the location where it was placed was the cause of the destruction of the plaintiff’s house by fire. The court stated at 160 Pa. at 365, 28 A. 777:

This was a lawful purpose, undertaken by a corporation organized according to law, and carried on in the usual manner. No complaint is made of the material employed, nor of the manner in which the line was laid. It is not alleged that its use for the purposes for which it was intended was dangerous to the property of the plaintiff, nor that it might not have been operated for years without danger to any one. There is no negligence charged in either the construction or operation of the line.
This stream of burning oil descending the run and passing within twenty-five feet of the plaintiff’s house was, as to the pipe lines, an independent, intervening cause. But for this the two inch branch would not have burst, and, if it had, would have done no substantial injury. This is not a case where concurrent causes are involved, for the pipe line without the stream of burning oil was harmless. (Emphasis added.)

In our case, the pipeline caused no harm until Tri-State Telecommunications, Inc. allegedly bore into the pipeline when installing underground cables.

Two other factors also compel us to reach the conclusion that the 1883 Act did not intend to impose strict liability upon the operation of a pipeline for transporting petroleum products where the breaking of the pipeline is due to the intervening act of a third party. One hundred years ago the doctrine of liability without fault was not a part of our jurisprudence as we know it today. Even in 1986, as Judge Wieand pointed out in Albig v. Municipal Authority of Westmoreland County, supra, the issue of absolute liability is not fully settled in this Commonwealth. Secondly, we do not find that the language of the statute clearly imposes absolute liability. We do not share the view of the court below that the imposition of strict liability is clearly mandated by the statute. In our opinion, the statute is ambiguous. In the first part of the sentence under consideration, it provides that a company laying a pipeline shall be liable for all damages caused by leakage from the pipe and in the same sentence imposes liability for “negligence” in the construction, maintenance or operation of the line. If the statute were to impose absolute liability, there would be no reason to impose liability for negligence.

A different interpretation than ours was reached in Atlantic Pipe Line Company v. Dredge Philadelphia, 247 F.Supp. 857 (E.D.Pa.1965) in which the district court found that the operator of a gasoline pipeline under the Schuylkill River was responsible for leakage notwithstanding that the pipes were punctured by steel columns lowered into the river as part of a dredging project. Although the court determined that the Free Pipe Line Act of 1883 imposed absolute liability on the pipeline owner, it conceded that the “provision is in derogation of common law and requires a strict construction ...” 247 F.Supp. 863. In any event, we are not bound by a United States District Court’s interpretation of a Pennsylvania statute.

Jackson v. United States Pipe Line Company, 325 Pa. 436, 191 A. 165 (1937) does not support appellants’ theory that the Free Pipe Line Act imposes liability without fault in all circumstances. In Jackson, supra, a pipe that was laid some thirty years before leaked and oil was discovered in nearby wells in large quantities. There was no evidence that the pipes were broken by a third party. The court stated at 325 Pa. 438: “Under the Act of June 2, 1883, P.L. 61, Section 2, appellant is liable without proof of negligence, if oil from its pipe line polluted the well.” This must be read in the context of the factual situation, and the case cannot be construed as overruling Behling v. Southwest Pennsylvania Pipe Lines, supra, which dealt with an intervening act causing damage to the pipe.

In our opinion, the Free Pipe Line Act of 1883 does not impose strict liability upon the owner of a pipeline where damage to the line is caused by the negligence of a third party, and as a result of an intervening cause, petroleum leaks out of the pipe. The appellees’ motion to dismiss the cross-appeal from the order of July 16, 1986 is denied and the order is reversed.

Finally, we consider the cross-appeals from the certification of the cases as a class action. The cross-appellants did not address the issue of class certification after the liability trial in Cipriani v. Sun Pipe Line Company or the trial for damages in Melso v. Sun Pipe Line Company and the issue is now waived. A party may not ordinarily raise a claim for the first time at the appellate level. Marzullo v. Stop-N-Go Food Stores, 364 Pa.Super. 106, 527 A.2d 550 (1987); Valvano v. Galardi, 363 Pa.Super. 584, 526 A.2d 1216 (1987). The reason for this is that the trial court must be given an opportunity to consider any issues before they are raised on appeal. Szakmeister v. Szakmeister, 344 Pa.Super. 465, 496 A.2d 1199 (1985); Cherry v. Wilier, 317 Pa.Super. 58, 463 A.2d 1082 (1983). Failure to raise the issues in post-trial motions under Pa.R.C.P. 227.1 results in the waiver of the issue on appeal. Pencil v. Buchart, 380 Pa.Super. 205, 551 A.2d 302 (1988). Even if we consider the question of the propriety of certification on the merits, we are persuaded by the opinion of the court by Rufe, J. in Cipriani v. Sun Pipe Line Company, 46 Bucks Co. L.R. 249 (1985), that certification was proper.

Order of July 16, 1986 reversed and all other orders affirmed.

      . The appeals at 2857 and 2858, Phila.1988 were denied per curiam by this court on January 27, 1989. On March 23, 1990 the Supreme Court granted the motion of Sun Pipe Line Company for allowance of appeals and remanded the appeals at 2857 and 2858, Phila.1988 to the Superior Court "for disposition of the issues presented ... if properly preserved in post-trial motions." Cipriani v. Sun Pipe Line Company, 524 Pa. 331, 572 A.2d 2 (1990).

      . The court below held that it would consider the defendants’ motion for judgment non obstante veredicto notwithstanding that they were the verdict winners on the basis of DeFazio v. Labe, 518 Pa. 390, 543 A.2d 540 (1988) which held that Pa.R.C.P. 227.1 entitled any party to move for such judgment. The court recognized that a denial of the motion for judgment n.o.v. could substantially affect the defendants’ rights, notwithstanding that they were the verdict winners if Melsos, et al. should succeed in their motion for a new trial as "defendants would be ‘losers’ in the sense that they would have to endure another lengthy trial in which they believed the plaintiffs’ proofs are deficient in the first place.” (Opinion of court below, page 20)

      . Appellants, Leonard Melso, Lynn Melso, Melissa Miles, and Justin Melso, filed a motion to dismiss the cross-appeals which this court denied per curiam on July 5, 1989 without prejudice to the parties to raise the issues set forth in the motions in briefs or at oral argument. The issues have therefore been preserved as they were presented in the briefs and reply briefs of the various parties.

      . The order of April 1, 1985 delineated a specific geographical area, the residents of which would constitute the class.

      . Section 519, Restatement (Second) of Torts provides:
      § 519. General Principle
      (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
      (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
      § 520. Abnormally Dangerous Activities
      In determining whether an activity is abnormally dangerous, the following factors are to be considered:
      (a) existence of a high degree of risk of some harm to the person, land or chattels of others;
      (b) likelihood that the harm that results from it will be great;
      (c) inability to eliminate the risk by the exercise of reasonable care;
      (d) extent to which the activity is not a matter of common usage;
      (e) inappropriateness of the activity to the place where it is carried on; and
      (f) extent to which its value to the community is outweighed by its dangerous attributes.

      . The court pointed out in Albig v. Municipal Authority of Westmoreland County, 348 Pa.Super. at 511, 502 A.2d at 661: "The issue of absolute liability, if not entirely novel, is less than fully settled in the law of this Commonwealth.”

      . Pa.R.C.P. 227.1 has been amended, effective January 1, 1990. However, the prior rule was in effect at the time of the proceedings in the court below.


text:
    576 A.2d 1005
    COMMONWEALTH of Pennsylvania, Appellee, v. Edward DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1990.
    Filed June 13, 1990.

      Daniel M. Preminger, Philadelphia, for appellant.
    Marianne E. Cox, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

      Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

This is an appeal from judgment of sentence entered in the Court of Common Pleas of Philadelphia County. The appellant was found guilty of first degree murder, possessing an instrument of crime, four counts of simple assault and two counts of kidnapping. The appellant asserts that he is entitled to a new trial because: 1) the lower court abused its discretion in ruling that D.F., a child witness, was competent to testify; 2) that appellant’s right of confrontation was violated when the lower court erroneously permitted D.F. to testify at trial via closed circuit television; and 3) that the lower court committed reversible error by admitting evidence of other crimes. We disagree and accordingly, affirm the judgment of sentence.

The record reveals the following facts. In the early morning of April 27, 1987 the appellant went to the apartment of Renell F., the victim, knocked on the door and was admitted by her. He then directed the victim, his estranged girlfriend and the mother of two of his children, to remove her clothes. After the victim complied, she and the appellant went into the bedroom where, a short time later, the appellant shot Renell F. once in the face and twice in the back of the head, causing her death.

Approximately seven weeks prior to the shooting of Renell F. on March 8, 1987, the appellant, who had been searching for her, forced his way at gunpoint into the car of Anthony Dates, an acquaintance of the victim. The appellant then forced Mr. Dates to drive to the home of Frances Saunders in Philadelphia. Mr. Dates and his wife, Sharon Saunders, had previously given the victim sanctuary in their Wilkes-Barre, Pennsylvania home during the victim’s futile effort to keep appellant away from her. Once inside the residence, the appellant threw Frances Saunders (Sharon Saunders’ mother and also a friend of Renell F.) to the floor, pointed the gun at her and demanded to know where the victim was living. Subsequently, he pointed the gun at Sharon Saunders, forced her to leave the house at gunpoint, and while walking down the street, still holding Sharon Saunders hostage, he was confronted by a police officer. The officer called for assistance and eventually placed the appellant under arrest. It was while appellant was on bail for the above assault and kidnapping offenses that he shot and killed the victim.

The case was tried without a jury from October 24-28, 1988. Trial counsel, who filed post-verdict and post-sentence motions, was then permitted to withdraw and new counsel was retained by the appellant. New counsel filed supplemental motions and all motions were heard and denied by the lower court on April 27, 1989. This appeal follows.

Appellant first maintains that the trial court abused its discretion in finding that D.F., the daughter of the appellant and the victim, was competent to testify. The child, who was the only witness to the actual murder, was five years old at the time of her mother’s death and six years old at the time of trial. When evaluating the competency of children to testify, we are guided by the following principles:

A witness is presumed competent to testify unless proven otherwise. When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. This inquiry will probe the capacity to communicate, observe and remember, and a consciousness of the duty to speak the truth in proportion to the witness’s chronological immaturity. [T]he judge holds the superior opportunity to evaluate the competency of a proposed child witness____

Commonwealth v. McEachin, 371 Pa.Super. 188, 537 A.2d 883 (1988) (allocatur denied), quoting Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987), (citations omitted).

Our Supreme Court has mandated that in evaluating competency, the trial court must be satisfied that the witness has:

“(1) such capacity to communicate, including as it does both an ability to understand questions and to frame express and intelligent answers; (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that [the witness] is called to testify about; and (3) a consciousness of the duty to speak the truth.”

Rosche v. McCoy, 397 Pa. 615, 620, 156 A.2d 307, 310 (1959) (emphasis in original), quoted in Commonwealth v. Hart, 501 Pa. 174, 177, 460 A.2d 745, 747 (1983).

Determination of competency will not be disturbed on appeal absent a clear abuse of discretion. Commonwealth v. McEachin, supra.

Instantly, appellant concedes that D.F, demonstrated an understanding of the duty to speak the truth and "an ability to understand questions and frame intelligent answers. However, appellant contends that the child did not demonstrate either the capacity to observe or perceive the occurrence with a substantial degree of accuracy or the ability to remember the events which were observed or perceived, or an ability to communicate intelligent answers about the occurrence.

A survey of D.F.’s direct testimony at trial rebuts the appellant’s allegations:

[BY THE ASSISTANT DISTRICT ATTORNEY]:

Q. Do you remember when you told us what happened that night?

A. Yeah.

Q. Who came to the door?

A. My father.

Q. What did your father do when he came to the door?

A. He just came in.

Q. Who let him in?

A. My mom.

* * * * * *

Q. After your mother opened the door, what did she say or what did your father say?

A. She did not say nothing.

Q. I’m sorry?

A. She didn’t say nothing.

Q. What did he say?

A. Nothing.

Q. What happened after that?

A. Tell her to go in the bathroom.

Q. And after that, tell us what happened.

A. Told her to take her clothes off.

Q. He told her to take her clothes off?

A. Yeah.

Q. Did she do that?

A. Yeah.

Q. What happened after that?

A. She came back out.

Q. Was she wearing anything?

A. No.

Q. What happened after that?

A. I was peaking [sic] through the door.

Q. You were peaking through the door of what?

A. To see that was gonna happen.

Q. What did happen?

A. She went in the room and when I went in there, she was on the mattress, and then she had blood all over her.

Q. How did she get blood on her?

A. Because he shot her.

Q. How many shots did you hear?

A. I don’t know. Two or five.

Q. Can you show us on your fingers how many shots you heard?

A. First I said five and then I said two (indicating).

Q. Do you remember now how many it was?

A. Two.

Q. Were you looking at that time through the door?

A. No.

Q. After your heard the two shots, where did your daddy go?

A. When I went in there, he was gone.

Q. Did you see anything in his hand?

A. Unh-unh, but I know he had a gun.

Q. How do you know he had a gun?

A. Because sometimes I see it.

Q. How long was that gun; do you know?

A. No. I think it’s medium though.

* * * * * *

Q. After daddy shot mommy, what did you do?

A. I came in the room and looked at her and I start crying, and then I told Miss White.

Q. What did you tell Miss White?

A. That my mom was there, and then the other girl came of the other hallway and then she thought I was knocking on her door and then she came and looked what happened.

* * S*i * * *

Q. What did you tell Miss White as to who did it?

A. I said she was dead.

Q. Did you tell Miss White who killed mommy?

A. No, but it was my daddy for real.

Q. Did anyone tell you to say that or are you saying that because it was the truth?

A. It was the truth.

The above colloquy between the assistant district attorney and D.F. on direct testimony unambiguously demonstrates that the child both recalled the murder and was able to intelligently recount what she saw and heard. Furthermore, our review of the record shows that during the lengthy cross-examination, the basic tenets of the child’s testimony remained unchanged.

The appellant also claims that D.F. was incompetent on the theory that her testimony was fraught with inconsistencies, and that she was easily manipulated during questioning into giving yes or no answers to leading questions. While there were some minor inconsistencies during D.F.’s testimony, the child consistently maintained that it was the appellant who came to the apartment the night of the murder. We agree with the Commonwealth’s argument that if mere inconsistencies were a sufficient basis for declaring a witness incompetent, few adult witnesses, much less child witnesses, would ever effectively testify in our courts. Furthermore, minor inconsistencies in testimony are not in themselves sufficient bases to find a child witness incompetent. Commonwealth v. McEachin, supra. In McEachin, supra, this court held that the trial court did not abuse its discretion in finding a child witness competent, notwithstanding that the witness occasionally gave inconsistent answers and answers that “could not possibly be correct”. Like D.F.’s testimony, the child’s testimony in McEachin on the whole demonstrated a concept of truth, understanding of questions, and the honesty to give intelligent and relevant answers.

Finally, the trial court, who sat as fact finder and had the opportunity to evaluate the child, aptly rejected all of appellant’s challenges to D.F.’s competency:

The court’s observation of the witness’ demeanor indicates that she was above-average intelligence and possessed the ability to remember what had happened to her mother. Although she sometimes gave inconsistent answers, the witness demonstrated that she understood the questions, observed and remembered what had happened the night of the shooting, was not easily manipulated and could give relevant and intelligent answers to the questions put to her by counsel. Most important, despite defense counsel’s thorough cross-examination, the witness consistently maintained that it was her father who came to the apartment the night of the murder and that she saw him by peeking through a partially open door. It is clear, therefore, that this child was competent to testify and the defendant is not entitled to a new trial on this basis.

(Opinion, Savitt, J. at 5-6).

On the basis of the trial court’s observation and our review of the record, we find no abuse of discretion and accordingly, appellant is not entitled to relief on this issue.

Appellant’s second contention is that his constitutional right to confrontation was violated when the lower court permitted D.F. to testify at trial via two-way closed circuit television. When it became apparent to the lower court that the child was unable to answer substantive questions in the presence of appellant, the child, accompanied by her grandmother and the child advocate appointed by the lower court, entered a room adjacent to the courtroom where the witness was able to view on a color monitor the trial court, defense counsel, and the prosecutor while they were posing questions. Another color monitor similarly transmitted the child’s testimony into the courtroom. The appellant relies on the Supreme Court’s holding in Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) for the proposition that his confrontational rights were violated by the procedure followed by the lower court. We agree with the lower court that appellant’s reliance on Coy v. Iowa, supra, is misplaced.

The Sixth Amendment to the United States Constitution provides that a criminal defendant shall enjoy the right “to be confronted with the witnesses against him.” Commonwealth v. Groff, 378 Pa.Super. 353, 548 A.2d 1237. In Commonwealth v. Gross, supra, Beck, J. accurately summarized the Supreme Court’s confrontation clause analysis in Coy:

In Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), the United States Supreme Court recently emphasized that under this clause the defendant has the right to face his accusers. The defendant in Coy was tried on charges of sexually molesting two 13 year old girls. At trial, the judge, acting pursuant to an Iowa statute, erected a one-way screen in the courtroom which allowed the defendant to view the girls but which prevented the girls from viewing the defendant. The Court ruled that the federal constitution did not permit the use of a physical barrier to shield witnesses from the defendant’s gaze — at least in the absence of an individualized finding that the particular juveniles, who testified required special protection. See 487 U.S. at 1022, 108 S.Ct. at 2803 (majority opinion) and 487 U.S. at 1023, 108 S.Ct. at 2804-05 (O’Connor, J., concurring).
On the other hand, the Court in Coy cautioned that: “The Confrontation Clause does not, of course, compel the witness to fix his eyes on the defendant; he may studiously look elsewhere but the trier of fact will draw its own conclusions.” 487 U.S. at 1019, 108 S.Ct. at 2802.

Commonwealth v. Groff, 378 Pa.Super. at 377, 548 A.2d at 1249 (emphasis added.)

Unlike the court in Coy, where the Iowa court invoked a statutory presumption of trauma as its basis for the use of a screen, the lower court in this case indeed made an individualized finding that D.F. was entitled to special protection:

First, an individualized finding was made only after counsel was appointed for the child, the child was examined by an independent psychologist and extensive hearings had been held concerning her ability to testify. Second, the decision rests not only on a finding that the child would be traumatized by testifying in the presence of her father, but also on a finding that she would suffer such emotional stress as to be unable to reasonably communicate about what happened the night of the offense, a finding which is tantamount to a finding that the witness is unavailable.

(Opinion of Savitt, J. at pg. 7.) (Emphasis in original.)

The record before us clearly supports the lower court’s decision that there was an individualized finding of necessity for D.F. to testify via closed circuit television. The record reveals that after her mother’s murder, the then five-year old eyewitness entered psychiatric therapy. The child was so traumatized by witnessing the murder that she was afraid to go outside to play with friends and could not even bear to be alone in a room; she followed her maternal grandmother, Mrs. Sumpter, wherever she went. The child awoke crying at night. She was so overwhelmed with anxiety that she not only was very quiet and tense, but Dr. Viola, her examining psychiatrist, noted that she literally rolled herself up into a ball, “a kind of physical drawing into herself with fear.”

However, the child began to make some progress in her emotional healing after living with her maternal grandmother and receiving psychiatric care. The psychologist found that she had been able to build up mental barriers that kept the worst memories away. A hearing was held on September 28, 1988, at the Commonwealth’s request, to determine whether any alternate procedure could be utilized at trial to minimize further psychological trauma to the child. The trial court appointed Dr. Breslin, an independent psychologist, to examine the child.

Dr. Breslin’s report, and the testimony presented by the child’s grandmother and Dr. Viola, established that the child was terrified of appellant and knew that other adults in her life were also afraid of him. Although the child had made significant progress in her emotional recovery in the eighteen months since her mother’s murder, appellant’s upcoming trial had caused the child severe regression and crushing anxiety. It was expected that the child would experience even greater emotional difficulty as the time for trial approached. Dr. Viola, the psychiatrist, testified that although the courtroom setting itself was likely to be intimidating to the child, the real threatening factor to the child was the presence of appellant in the same room. The doctor opined that even if the child were not asked to testify, but were merely put in the same setting as defendant, the experience would cause impairment in the young child’s functioning and cause long-term anxiety.

Dr. Viola also opined that forcing the child to testify about her mother’s murder in the presence of the perpetrator would cause the young girl to relive the terrifying incident, and that asking her to do so in such a frightening setting would cause serious long-term emotional harm. While Dr. Viola found that testifying under any circumstances would be very traumatic for the child, and not in her best interest, testifying out of defendant’s presence would minimize the trauma. Dr. Viola also found that the child was so terrified of the situation that she sometimes became virtually mute, and that she might not be capable of communicating about the incident in a stressful courtroom setting.

Similarly, Dr. Breslin, the court appointed psychologist, found that as a result of witnessing her mother’s murder, the child had very little faith in herself, gave up readily, and suffered from overwhelming insecurity. He found that D.F. was unable to deal with tension arousing situations and was incapable of thinking under stress, which tended to cause her to withdraw. During psychological testing, the child was unable to deal with the very thought of appellant, her father, and although she had difficulty dealing with thoughts of her mother, she still had some acceptable memories of her. Testing also revealed that the child was very apprehensive, and was fearful that she was being watched; and that her memories of her home were very tension arousing.

Dr. Breslin further opined that the child’s prior psychiatric therapy was of limited help, due to her young age, and would not help her withstand the anxiety of testifying. The doctor felt that her mother’s murder would have lifelong effects upon the little girl, and that it was in her best interests not to testify about the incident.

After consideration of all of the evidence, the trial court found that, although the child was likely to suffer emotional impairment, this factor alone was an insufficient basis upon which to permit the child to testify by way of closed circuit monitors. The trial court did rule that the child’s grandmother and the court-appointed child advocate, with whom the child had a good rapport, could remain near the child during her testimony.

However, when D.F. was called to testify at trial, she was able to answer questions concerning competency but became virtually mute towards any questions pertaining to the murder of her mother. The trial court repeatedly postponed her testimony, ordering several recesses, so that the child could take long walks with the child advocate in an effort to reassure her. The child did testify, however, that she told the truth at the preliminary hearing, and that she did not want to answer any questions, and did not want to “see her daddy.”

Based upon his observation of the child’s demeanor and her inability to answer substantive questions in defendant’s presence, the trial court then ruled that he would view her testimony by way of two-way monitor. After the child was situated in the adjacent room, further competency questions were posed and answered, and the child then related the substance of her testimony.

On the basis of the expert testimony presented and the inability of D.F. to answer substantive questions in her father’s presence, our review of the record leads us to conclude that the lower court did make an individualized finding of a special need, and the use of closed circuit television was warranted in this particular case.

As to appellant’s final issue, the appellant claims that the lower court erred in admitting certain testimony: First, that Renell F. had left Philadelphia to stay with friends in Wilkes-Barre because of her fear of appellant; second, that shortly before the murder, the victim told a friend that appellant destroyed her apartment with an axe; and third, that the victim told a neighbor she was afraid that appellant would hurt her.

We agree with the lower court that the above evidence was relevant. “Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when to some degree advances the inquiry and thus has probative value.” Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984). Furthermore, the admission or exclusion of evidence is a matter committed to the sound discretion of the trial judge. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982).

It is clear that the evidence under consideration was relevant. First, we agree with the lower court that evidence of Renell F.s’ reasons for moving to Wilkes-Barre was relevant to show the nature of the relationship between appellant and the deceased. Second, the evidence that appellant had “axed” Ms. F.’s apartment was relevant to show appellant’s hostility towards her. Furthermore, this evidence was elicited by appellant’s counsel on cross-examination and the trial court did not permit further testimony concerning the specifics of the matter. Finally, the decedent’s statement that she was afraid that appellant would harm her was part and parcel of the chain of events leading up to the murder and thus, was fully admissible. See Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988).

However, even relevant evidence “is inadmissible if the trial court, in its discretion, determines that its prejudicial impact outweighs its probative value. Commonwealth v. Costal, 351 Pa.Super. 200, 505 A.2d 337 (1986). The appellant contends that he was seriously prejudiced by the admission of the above evidence.

It would be difficult to conceive of a trial at which the prosecution’s evidence was not prejudicial to the defendant. Commonwealth v. Moore, 389 Pa.Super. 473, 567 A.2d 701 (1989). “The difficulty arises when the evidence is so prejudicial that it sweeps the [fact finder] beyond a rational consideration of guilt or innocence of the crime on trial.” Commonwealth v. Moore, 389 Pa.Super. at 483, 567 A.2d at 706. Our thorough review of the entire record leads us to conclude that the evidence in dispute was not of the type described above and was properly admitted.

Judgment of sentence affirmed.

      . The appellant was sentenced to life imprisonment on the murder charge, and an aggregate sentence of twenty-five years to fifty years on the remaining offenses which run concurrently with the sentence imposed on the murder conviction.

      . The record reveals that the murder victim had temporarily relocated several times and had obtained a protection from abuse order enjoining appellant from entering her apartment building in an effort to keep the appellant away from her.

      . The appellant’s reliance in this matter upon Commonwealth v. Mazzoccoli, 475 Pa. 408, 380 A.2d 786 (1977) is misplaced. There the fifteen-year-old witness, who apparently suffered a mental disability, said that he was in the eleventh grade at a school that only went up to the eighth grade. He testified that it was right to tell a lie, and that he did not know what would happen if he lied on the witness stand. The witness’ testimony demonstrated that he did not understand the questions posed and could not respond with intelligent answers. The witness also inconsistently answered yes or no to the same questions. 380 A.2d at 787-788.

      . Article 1 section 9 of the state constitution provides:
      In all criminal prosecutions the accused has a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment of information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.
      The sixth amendment to Article 7 of the federal constitution provides:
      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation: to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

      . We also note that the Supreme Court in Coy did not specifically strike down the portion of the Iowa statute which allowed for the use of closed circuit television in the same manner as the present case.

      . D.F. also testified via closed circuit television at appellant’s preliminary hearing on May 6, 1987.

      . We do not agree with appellant that this statement is inadmissible as hearsay. The decedent made this statement to witness Earl Maples. Mr. Maples testified that the incident occurred while he was in his neighboring apartment, and the decedent came running across the street to his apartment and told him about it. The record reveals that this statement clearly qualifies under the excited utterance exception to the hearsay rule. See, Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986).