author: JOHNSON, Judge:

text:
    550 A.2d 793
    Betty VILLAUME and Fred Villaume v. Edward KAUFMAN and Jane Kauffman, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1988.
    Filed Nov. 21, 1988.

      Joanne Kelhart, Bethlehem, for appellants.
    Wieslaw T. Niemoczynski, Stroudsburg, for appellees.

      Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from an order granting appellees Betty Villaume and Fred Villaume’s motion for a judgment notwithstanding the verdict (judgment n.o.v.) and granting a new trial on damages. We reverse and reinstate the jury verdict.

A doberman pinscher owned by appellants Edward and Jane Kaufman entered the Villaumes’ property and attacked the Villaumes’ Shetland sheepdog. The doberman, which had been kept chained to a revolving pole, was wearing his collar and was dragging his unbroken chain. Betty Villaume grabbed the doberman by the collar and attempted to pull him away from her dog. The fight and Betty Villaume’s intermittent efforts to halt it continued for about fifteen minutes, at which point Jane Kaufman entered the fray and squirted the dogs with water from the lawn sprinkler. The fight stopped immediately. Betty Villaume sustained a dog bite on her left thigh and a broken finger on her right hand.

The Villaumes sued the Kaufmans, alleging that they were negligent in allowing the doberman to run free in violation of the Dog Law, 3 P.S. § 459-305. They claimed that this negligence caused physical and mental injury to Betty Villaume and derivative injury to her husband. The case was tried before a jury. Following the close of evidence, the trial court denied the Villaumes’ oral motion for a directed verdict on the issue of liability. The jury returned a verdict in favor of the defendant Kaufmans.

Following the verdict, the Villaumes filed post-trial motions for judgment n.o.v. and for a new trial. By order of January 20, 1988, the Honorable Ronald E. Vican granted the motion. The trial court’s opinion of the same date stated that the doberman’s presence outside the Kaufman premises constituted negligence per se under Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982) because it was a clear violation of the Dog Law. Therefore, the court wrote, violation of the Dog Law was the proximate cause of the Villaumes’ injuries, and further, the Villaumes could not be held contributorily negligent for the manner in which they reacted to an emergency situation. Because the jury had returned a verdict in favor of the Kaufmans, thus making no assessment of damages, the court granted a new trial on the issue of damages alone. The Kaufmans’ motion for reconsideration was filed and denied. This appeal followed.

In articulating a proper standard of review for this case, we recognize that the granting of a new trial for assessment of damages was an incident of the granting of the motion for a judgment n.o.v. in favor of the Villaumes. In this case, the trial court found the authority to override the jury verdict and to substitute its own findings on the basis of its reading of Miller v. Hurst, supra. Generally speaking, the standard of review of a trial court’s grant of a motion for a new trial is whether the trial court palpably and clearly abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987). However, when the trial court gives a single reason for its grant of a new trial, its discretion is not at issue, but rather the validity of its legal justification is subject to review. Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 523 A.2d 723 (1987). See Boscia v. Massaro, 365 Pa.Super. 271, 529 A.2d 504 (1987).

Because the trial court based its decision upon a single legal rationale, its reading of Miller v. Hurst, we may review the validity of this legal justification. The trial court misread and misapplied Miller v. Hurst, supra. In Miller, this Court adopted the statutory requirements of the Dog Law, supra, as the standard to be applied in determining whether a dog owner has exercised due care in the supervision of his dog; the Court held that an unexcused violation of the Dog Law is negligence per se. The Miller Court thus abrogated the common law “one free bite” rule, under which an animal was required to be restrained only after its behavior evidenced viciousness. See Freeman v. Terzya, 229 Pa.Super. 254, 323 A.2d 186 (1974). While not specifying what nature of excuse would escape per se treatment, the Miller court added in a footnote that a dog owner may always show that the dog escaped despite the exercise of due care and that in such cases negligence would not be found. The Court explicitly rejected imposing absolute liability upon the dog owner:

We find it improvident and unnecessary to effect such a monumental change without legislative action.

Miller, 302 Pa.Super. at 244, 448 A.2d at 618-619.

Thus, the trial court erred in reading Miller to impose absolute liability upon dog owners whose dog is unrestrained despite their exercise of due care. In the present case, the trial court acknowledged in its findings of fact that “it is unknown how [the doberman’s] chain became detached from the pole to which it had been attached, but his chain was not broken.” Opinion, 1/22/88. That the doberman had a collar and chain could be seen as evidence establishing that the Kaufmans did exercise due care. It is entirely possible that the jury, which ultimately found for the Kaufmans, believed that the doberman become free despite the exercise of due care by the Kaufmans. In Miller, on the other hand, the evidence established that the dog owner always intentionally permitted his dog to run without restraint. No such evidence was before the jury in the present case.

Further, the trial court interpreted Miller to mean that the mere per se violation of the statute establishes the necessary causation for a finding of liability. Miller explicitly holds otherwise:

Where proof of negligence rests upon a violation of the Dog Law, liability does not attach unless the violation is a substantial factor in bringing about the injuries sustained____ [This issue] ... will normally be for the trier of the facts.

Miller v. Hurst, 302 Pa.Super. at 245, 448 A.2d at 619. The trial court erred in applying its reading of Miller to override the jury’s verdict of no liability on the Kaufmans’ part. Even if the jury thought that the Kaufmans were negligent in letting the dog run loose, the record in this case could well support a finding that their negligence did not cause the Villaumes’ harm. The jury heard five days of testimony. Betty Villaume testified extensively about the dog fight, her fifteén minute attempt to halt it and Jane Kaufman’s successful intervention. Nothing in the record indicates that the Villaume’s Shetland sheepdog was restrained. The jury was presented with no evidence of the dog bite. The jury could have believed, on several grounds, that the Kaufmans omission in letting their dog roam was not a substantial factor in causing the harm at issue.

At close of trial, the trial court instructed the jury that the defendants would be liable to the plaintiffs if they found, in addition to a violation of the statute, 1) that the statute was intended to protect the plaintiff as an individual; 2) that the type of harm sustained was the type against which the legislature intended to prevent; 3) that the type of hazard or danger which caused the harm was a danger which the legislature intended to prevent, and 4) that the violation was the legal cause of the injury. The trial court properly instructed the jury that if it found that the statute had been violated, the Kaufmans’ negligence was established. The jury obviously found that the statute was not violated and that the Kaufman’s dog had somehow gained its freedom by means other than a violation of the statute by the Kaufmans. This finding is amply supported by the evidence in the record and thus supports the jury’s verdict. As this Court wrote in Miller v. Hurst, supra, only an unexcused violation of the Dog Law is negligence per se.

Because the trial court should not have found the Kaufmans negligent per se and absolutely liable, we need not address whether the grant of the judgment n.o.v. was proper. Nonetheless, a thorough review of the record reveals that the trial court should not have granted the motion. In reviewing the grant of a judgment n.o.v., this court must consider the evidence and all reasonable inferences drawn from it in the light most favorable to the verdict winner. Northwest Savings Association v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986). The grant of a judgment n.o.v. is proper only where the facts are such that no two reasonable persons could fail to agree that the jury verdict was improper. Id. Our foregoing discussion demonstrates that the jury verdict was eminently reasonable under the evidence presented at trial. Therefore, the grant of the judgment n.o.v. was improper.

The Kaufmans also argue that the court erred in declining to charge the jury on contributory negligence. Contributory negligence has not been a bar to the plaintiffs recovery in this Commonwealth since the adoption of Comparative Negligence in 1976. See 42 Pa.C.S. § 7102. Our disposition of the case renders it unnecessary to further address this issue.

For the foregoing reasons, we reverse the trial court order granting the Villaumes’ motion for a judgment n.o.v. and for a new trial on the issue of damages.

ORDER REVERSED. Judgment for the Kaufmans reinstated.

      . 3 P.S. § 459-305. Confinement of dogs
      It shall be unlawful for the owner or keeper of any dog to fail to keep at all times such dog either:
      (1) ....
      (2) firmly secured by means of a collar and chain or other devise so that it cannot stray beyond the premises on which it is secured; ... Act of Dec. 7, 1982, P.L. 784, No. 225, art. Ill, § 305, effective Jan. 1, 1983.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    550 A.2d 796
    COMMONWEALTH of Pennsylvania v. Richard TEDESCO, II, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1988.
    Filed Nov. 15, 1988.

      Theodore H. Watts, Meadville, for appellant.
    John F. Spataro, Assistant District Attorney, Meadville, for Com., appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Appellant Richard Tedesco was found guilty of the summary offense of harassment, 18 Pa.C.S. § 2709(3), and after denial of his post-verdict motion, he was sentenced to pay a $100 fine and costs. This appeal followed.

A review of the record discloses appellant was found guilty on January 6, 1987, and the adjudication Order was filed on January 7, 1987. Appellant was advised of the need to file post-verdict motions within ten (10) days. See Pa.R.Crim.P. 1123. Both the time-stamp on the motion and the docket entry indicate his post-verdict motion was not filed until January 26, 1987. Thus, it would appear appellant has not preserved the issue for appellate review. See Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983) (although untimely post-verdict motions were acted upon by the trial court on their merits, the issues raised in the motions were not preserved for appeal but were waived). See also Commonwealth v. MacSherry, 371 Pa.Super. 164, 166, 537 A.2d 871 (1988).

At oral argument before this Court and by letter several days following oral argument before this Court, however, counsel for appellant offered the following explanation for the apparently untimely filed post-verdict motion:

[Although the Motion for New trial was filed on January 15,1987, for some reason, the Motion was not transferred from the Judge’s chambers to the clerk’s office until the 26th of January, 1987.
The Motion was presented to Judge Robert L. Walker in Motions Court and was listed for the next Argument List, which is typical in this jurisdiction. Therefore, no Order was issued by the Court listing the case.

(Letter of appellant’s counsel, 9/13/88.)

Counsel’s claim amounts to an assertion that he “filed” the motion by presenting it to the judge in his chambers. This does not constitute a “filing” as we admonished in Commonwealth v. Nixon, 311 Pa.Super. 450, 457 A.2d 972 (1983):

[Ljeaving motions in the judge’s chambers, or even handing a copy to the judge in the courtroom or elsewhere, does not constitute filing. A document in any criminal matter must be filed with the office of the clerk of courts, 42 Pa.C.S. § 2756(a), who in Philadelphia is known as the Clerk of Quarter Sessions. 42 Pa.C.S. § 2751(c).

Id., 311 Pa.Superior Ct. at 455, 457 A.2d at 975 (quoting Commonwealth v. Lynch, 304 Pa.Super. 248, 250, 450 A.2d 664, 666 (1982), reargument denied.)

Counsel for appellant also points to the fact that the trial judge in his Memorandum, filed December 30, 1987, describes the motion for new trial as “timely”, and he urges this lends credence to the argument that the document was, in fact, timely “filed”.

The judge’s characterization of the post-verdict motion as “timely” suggests the trial court in Crawford County might not be strictly enforcing the mandates of 42 Pa.C.S. § 2756(a) which provides in pertinent part:

§ 2756. Matters or documents filed in the office of the clerk of the courts
(a) General rule. — All applications for relief or other documents relating to the following matters shall be filed in or transferred to the office of the clerk of the courts:
(1) Criminal matters including all related motions and filings.

Under the narrow circumstances of this case, we will, therefore, engage in a review of the merits of appellant’s appeal. We take this opportunity, however, to inform all counsel in Crawford County and throughout the state that henceforth local custom will not supplant the Pennsylvania Rules of Procedure. If a copy of a motion must be filed with a trial judge, the original still must be filed with the county clerk of courts in a timely fashion.

On appeal, appellant submits the incident giving rise to the instant charge was a single isolated event which is insufficient under the law to support a finding that he engaged in a course of conduct or that he repeatedly committed acts which alarmed or seriously annoyed the complainant and which served no legitimate purpose.

The trial court found otherwise. The court explains in its Memorandum that the testimony of the appellant-defendant and the complainant do not entirely correspond and, accepting the victim’s testimony as the more credible version, the court gives the following rendition of the facts. The date of the complained of conduct was Sunday, August 17, 1986.

Earlier on that Sunday afternoon, the victim[] was on his way to the home of a local attorney, John Petruso, to deliver a form that Mr. Petruso’s son would need to obtain his senior driver’s license after having completed Mr. Lawrence’s driver training course. The defendant lives in the same general vicinity as Mr. Petruso and the victim in going to the Petruso home followed the defendant’s wife up a public street. Mrs. Tedesco testified that although she was apprehensive because she knew of the bad blood between her husband and the victim, nothing whatsoever untoward occurred and when she turned off onto her own street, Mr. Lawrence went straight ahead, apparently on to the Petruso home.
Mr. Lawrence then went home and about 4:30 while he was watching television, his attention was attracted to the parking lot in front of his apartment where Mr. Tedesco arrived with screeching brakes, jumped out of his car and began taking photographs of Mr. Lawrence’s car. Lawrence went outside to inquire as to the defendant’s activities and the defendant subjected him to a tirade including racial and ethnic slurs toward both the victim and the victim’s wife using extremely vulgar language. This continued until an off duty state policeman who lived nearby hearing the commotion, eventually interceded to calm both parties down and to avoid any physical altercation. Thereafter, the defendant left the premises and by his own testimony went to the state police barracks to attempt to make a complaint, but was advised to contact private counsel.
There was also evidence that the defendant had on several occasions before August 17, 1986 hurled racial epithets at the victim when he was in his driver training car with a student, and had complained to the local Meadville City police that the victim went by his funeral home repeatedly. Although the record may not be clear the Court can take judicial notice that Mr. Tedesco’s funeral home is located at the intersection of Spring Street and Baldwin Street, and that Baldwin Street in the City of Meadville at that location is also U.S. Route 19 which with the exception of the interstate highway is the main road between Meadville and Erie, Pennsylvania. Further, Spring Street is a heavily traveled route, being the main highway leading to what is known as Mead-ville’s Fifth Ward and to residential areas north and west of the City of Meadville. If someone would go by Tedesco Funeral Home on a daily basis or oftener, it is certainly not unusual.
In any event, the defendant had complained to the local police and the victim had complained to the local police concerning the defendant’s racial slurs. Apparently the police chief of Meadville had attempted to calm both parties to avoid any escalation of the problem.

Slip Op. at pp. 2-4.

In Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987) we said:

The findings of a trial judge sitting without a jury carry the same weight as a jury verdict, and this court will not disturb those findings on appeal absent an error of law or abuse of discretion. See Pato v. Cernuska, 342 Pa.Superior Ct. 609, 612, 493 A.2d 758, 759 (1985). We will respect a trial court’s findings with regard to the credibility and weight of the evidence unless the appellant can show that the court’s determination was manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence. See Tyler v. King, 344 Pa.Superior Ct. 78, 96, 496 A.2d 16, 25 (1985).

Id., 360 Pa.Superior Ct. at 133, 519 A.2d at 1028.

Here, we find appellant has not shown the trial court’s determination to be flagrantly contrary to the evidence, since there was evidence in this case that appellant had, in fact, engaged in a “course of conduct.” We noted in Commonwealth v. Evans, 299 Pa.Super. 529, 445 A.2d 1255 (1982):

Initially, we observe that Section 2709(3) specifically proscribes “a course of conduct or repeated [ ] ... acts” which are offensive to the complaining party, i.e., there must be evidence of a repetition of the offensive conduct. Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803 (1976) (appellant’s repeated entreaties of the complainant to allow him to perform cunnilingus established a “course of conduct,” and his pleas and actions seriously annoyed a person of average sensibilities). In interpreting the aforegoing, this Court, in Commonwealth v. Schnabel, 236 Pa.Super. 280, 344 A.2d 896 (1975), held that the Commonwealth failed to establish that appellant-lessor engaged in a “course of conduct” of harassment by the single act of cutting the complainant-lessee’s water hose. In so doing, it is important to note that the Schnabel Court embraced the definition that “ ‘ “course of conduct” is more than an isolated verbal or physical act. It is a pattern of conduct composed of same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose in the mind of the actor.’ ” (Citation omitted) Id. at 283, 344 A.2d at 898. Such definition undermines the appellant’s contention that the reviewing court is precluded from examining the testimony elicited regarding matters that occurred prior to August 5, 1975, the date of the complained of conduct.

Id., 299 Pa.Superior Ct. at 534, 445 A.2d at 1257-58 (emphasis in original).

The trial court, thus, in the case sub judice, properly looked to evidence of appellant’s repeated actions leading up to August 17, 1986, as well as his repetitious conduct on that date, and found a course of conduct existed. Also, the court properly determined the appellant’s conduct did seriously annoy the victim and served no legitimate purpose.

Appellant’s argument that Commonwealth v. Burton, 299 Pa.Super. 147, 445 A.2d 191 (1982) is applicable to this case is misplaced, since we were unable to find in Burton any intention of the appellant to harass, annoy or alarm the complainant, whereas in the case before us, such a intention can clearly be inferred. We accordingly find no error on the part of the trial court.

Judgment of sentence affirmed.

      . Harassment is defined in 18 Pa.C.S. 2709(3) as follows:
      § 2709. Harassment
      A person commits a summary offense when, with intent to harass, annoy or alarm another person:
      (3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

      . The victim, Roland Curtis Lawrence, is a black man who operates a driver’s training school (Slip Op., Walker, J., 12/30/87, p. 1).


author: POPOVICH, Judge: CIRILLO, President Judge,

text:
    550 A.2d 800
    COMMONWEALTH of Pennsylvania, Appellee, v. David ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 3, 1988.
    Filed Nov. 14, 1988.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Edward Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence (2-5 years imprisonment) for burglary by the appellant, David Robinson. We affirm.

In reviewing the evidence in a light most favorable to the verdict-winner, the Commonwealth here, and all reasonable inferences to be derived therefrom, the record discloses that at 4:55 a.m. on the 12th of January, 1987, Pittsburgh Police Officer Frank Vetere was cruising the North Side of the City when he received a call to proceed to 1725 Beaver Avenue. The Gulf Station alarm had been activated. Within two minutes, the officer was on the scene and observed a “door swinging open” inside the service station. He turned on his spotlight and saw “a man coming out of the door in th[e] back room ... and running across the front of the station” and exiting through the broken window in the front of the establishment.

Although the entire time that the officer witnessed the intruder lasted for some thirty seconds, and this was with the aid of a forty watt bulb lighting the station office and the illumination provided by the officer’s vehicular spotlight, he was able to see the defendant’s face for only a “few seconds” as the culprit ran past him.

The officer pursued the fleeing defendant but lost sight of him for about five minutes as he (defendant) ran around a corner. Nonetheless, with the aid of other officers who had arrived on the scene, the area was searched and the defendant was located lying, face down, between a cyclone fence and a telephone pole which ran the length of the Metropolitan Parking Lot situated near the Gulf Station.

As told by the defendant at trial, when the police found him,

... I got up. Nobody pulled me out from behind a thing. I stood up and ... the officer stood back____

Thereafter, Officer Schon-Bachler conducted a body-search of the defendant and recovered four rolls of quarters, two rolls of dimes, some bills and a screwdriver. The rolls of coins had stamped on them: “Beaver Avenue Gulf, 1725 Beaver Avenue, Pittsburgh, Pennsylvania 15233”. The defendant was then arrested and removed to the police station.

After a jury trial, the defendant was adjudged guilty and sentenced. This timely appeal followed.

The defendant raises two issues for our consideration, the first of which challenges the prosecutor’s questioning him regarding his silence at the time of his arrest as violative of his Fifth Amendment right not to incriminate himself.

At the trial, it was a question of interest as to whether the circumstances surrounding the defendant’s capture, and the prosecution’s inquiry of the defendant as to his failure to inform the police of his version of events, were reflective of a pre- or post-arrest situation. The former is admissible for impeachment purposes, see Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1985), while the latter is a prohibited area of inquiry subject, in some cases, to rectification by means of a cautionary instruction. See Commonwealth v. Gbur, 327 Pa.Super. 18, 474 A.2d 1151 (1984).

Instantly, the Commonwealth’s witnesses’ accounting of what occurred when the defendant was apprehended is reflective of an immediate arrest without the opportunity for the defendant to speak, and, this, would label the prosecutor’s questioning of the defendant, as to his failure to speak when captured, a prohibited subject of discussion. On the other hand, the defendant’s recollection of the incident is consistent with a pre-arrest scenario in which he was availed the chance to state his version of events prior to the police effectuating his arrest.

Because we are to accord the verdict-winner the benefit of all favorable evidence and the reasonable inferences to be adduced therefrom, we are permitted to view the question of the prosecutor: “Did you tell the police officers anything when they found you?” as eliciting information from the defendant indicative of a pre-arrest context and the proper subject of inquiry for impeachment purposes. See Turner, supra.

Especially is this appropriate since the thrust of the accused’s defense was that he was a victim of circumstances and merely happened upon the commission of the burglary in progress. And, fearful that he would be inculpated in the crime (the reasons for which, if defense counsel’s closing argument is to be believed, rested upon his “race”), he fled on foot with rolls of coins he stated he had picked up from the grounds of the gas station as the alleged two other burglars made their escape. He did all of this rather than remain on the scene and inform the police of what he claimed he had witnessed — two individuals running from the station with the arrival of the police.

Even if, arguendo, we were to hold that the question by the prosecutor was proscribed because we had a post -arrest situation, we are not so prone to conclude that the single reference to the defendant’s silence was so egregious that no amount of cautionary instructions could cure the impropriety. During the course of the trial, the judge did give a lengthy cautionary instruction on the subject of the prosecution’s questioning of the defendant as to whether he stated anything to the police upon his being found; to-wit:

Ladies and gentlemen of the jury, last night after you left we had legal argument on several issues, and we all consulted the law overnight, and that has resulted in various decisions of law today, some of which I will tell you about. * * * At the end of the day yesterday [the assistant district attorney] asked the defendant on cross-examination a question something to the effect why didn’t you tell the police that. I want to explain something to you: Once a person is arrested, any citizen of this country, that person has an absolute right to remain silent. That is guaranteed by our Constitution. So when you are arrested, you don’t have to say anything, and that right is so important that the jury or Judge may not consider their silence as any evidence of guilt. So the fact that the defendant was arrested and didn’t tell the police officers anything or say anything is absolutely no evidence against him, and you may not consider any inference from his silence after his arrest. Now, there is a question of why, in view of the fact that the defendant says that he observed a burglary in progress, he didn’t simply go up to the officers and inform them that he seen [sic] a burglary and here are the coins that the burglars dropped. That period of time would have been before his arrest, and you may consider his silence at that time, his failure not to inform the officers that he had just seen a crime. That may be considered in your deliberations.

The cautionary instruction was given to the jury the day following the complained-of question by the prosecutor, which was not too late in time and need not have been given at the point of the defendant’s objection.

The main objective of the trial court’s instruction to the jurors was to eradicate from their minds the reliance or use of the defendant’s post-arrest silence to influence their decision-making. See Gbur, supra. If we were to conclude that the instruction served no purpose other than to refresh the jury’s mind on the “silence” factor, then, taken to its logical conclusion, no instructions given to the jury would be meaningful. The ideal and most advantageous time to give such is not always at the moment the objectionable remark or inquiry is made. We subscribe to the view and prefer to believe that the jury listens to and obeys the directions of the judge when it comes to the law and its role in the judicial process.

Further, the nature of the reference (a single inquiry as) to the accused’s silence, and how it was elicited, precludes us from holding that the assistant district attorney “exploited” the subject to the prejudice of the accused. See Commonwealth v. Mays, 361 Pa.Super. 554, 558-59, 523 A.2d 357, 359 (1987).

Accordingly, on this issue in the case, we hold that the actions of the trial court, under the particular facts here, were appropriate to protect the interest of the defendant to a “fair” trial, remembering that the United States Constitution does not require a “perfect” trial to effectuate one’s rights under the law.

The last of the defendant’s complaints is an assault upon the sufficiency of the evidence as failing to establish his guilt beyond a reasonable doubt. See Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980).

The evidence, as stated previously, must be viewed in a light most favorable to the verdict-winner, as well as all reasonable inferences to be derived therefrom. See Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973).

The case for the prosecution established that the owner of the Gulf Station had secured the premises prior to his closing the business. Also, he recounted that he did not authorize anyone to entry or remain on the premises in his absence.

Further, Officer Vetere was “absolutely” sure that the individual he witnessed exiting the station upon his arrival was the defendant. His apprehension of the defendant within a short distance of the station in a prone position under a telephone pole, possessing rolls of coins wrapped and stamped with the name of the Gulf Station, was evidence sufficient to sustain the defendant’s conviction.

The fact that the defendant took the stand and testified that he was an innocent bystander who became frightened when the police came upon the scene causing him to flee, were facts for the jury to weigh as credible or not in the face of the prosecution’s case.

After a careful review of the record, in accordance with the required standard, we find that there was sufficient evidence to enable the trier of fact to find beyond a reasonable doubt every element of the crime of which the defendant was convicted. See Davis, supra.

Accordingly, finding that the evidence was sufficient to convict and the commission of no errors on the part of trial court below occurred, we will affirm the judgment of sentence.

Judgment of sentence affirmed.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

Because I believe that the reference to the appellant’s post-arrest silence elicited by the prosecutor impermissibly prejudiced him in the eyes of the jury, I respectfully dissent from the majority’s opinion.

In the early morning of January 12, 1987, police were summoned by an alarm from a Gulf service station on the North Side of Pittsburgh. Two police cars approached the station: one went to the front, and another to the back. Officer Frank Vetere, approaching the front of the station in his patrol car, testified that he saw a man inside the dimly lit sales office. The office was lit only by a small light, not an overhead light. Officer Vetere testified that his attention was drawn by a swinging door. He turned his spotlight on the station, then he saw a man come out the door of a back room, run across the front of the station, out a broken window, and down the side of the station. He testified that he observed the man for some thirty seconds as he ran, but on cross-examination admitted that he only saw.his face for some three seconds. The remainder of the time he saw his back and profile as he ran.

The officer then followed him with his car, and lost sight of him. Other patrol cars had responded to the alarm, and the search was taken up on foot. Robinson was found flat on the ground under a telegraph pole by another officer. He was then searched, and several rolls of change were found on him, along with two screwdrivers. The rolls were marked with the name of the service station. Robinson was handcuffed, and placed under arrest. He was later identified by Officer Vetere before the City Court Magistrate. No line-up or photo array was held.

While it is settled law in this Commonwealth that references by a prosecutor to post-arrest silence are violations of an accused’s fifth amendment right against self-incrimination, Commonwealth v. Singletary, 478 Pa. 610, 611, 387 A.2d 656 (1978), it is equally well settled that not every reference requires a new trial. Commonwealth v. Maloney, 469 Pa. 342, 349, 365 A.2d 1237, 1241 (1976). Prompt and adequate instructions may cure what could otherwise be reversible error. Commonwealth v. Gbur, 327 Pa.Super. 18, 24, 474 A.2d 1151, 1154 (1984). In order to determine whether the reference to the accused’s silence may be cured by an instruction, we consider four factors: (1) the nature of the reference to the accused’s silence; (2) how it was elicited; (3) whether the district attorney exploited it; and (4) the promptness and adequacy of the cautionary instruction. Commonwealth v. Mays, 361 Pa.Super. 554, 558-59, 523 A.2d 357, 359 (1987), allocatur denied, 516 Pa. 613, 531 A.2d 780 (1987); Commonwealth v. Anderjack, 271 Pa.Super. 334, 342, 413 A.2d 693, 698 (1979). If the reference to the accused’s silence is of a nature that would seriously compromise the jury’s objectivity, and is likely to deprive the accused of a fair trial, curative instructions are inadequate and a new trial is required. Commonwealth v. Brown, 489 Pa. 285, 298, 414 A.2d 70, 76 (1980); Gbur, 327 Pa.Super. at 24, 474 A.2d at 1154.

In the instant case, before determining whether curative instructions were necessary, we must first determine the nature of the silence upon which the accused was questioned. It is clear that pre-arrest silence is admissible in this Commonwealth for impeachment purposes. Commonwealth v. Turner, 499 Pa. 579, 582, 454 A.2d 537, 539-40 (1982); Commonwealth v. Hassine, 340 Pa.Super. 318, 341, 490 A.2d 438, 450 (1986). We must determine whether the reference to which defense counsel took exception dealt with pre-arrest silence, or silence at the time of arrest. The majority determines that the reference in this case was a reference to pre-arrest silence. It reaches this conclusion by considering all the evidence and inferences in the light most favorable to the verdict winner. While this is the proper standard of review in a case involving a sufficiency of the evidence question, we are here faced with a constitutional question, and that standard does not apply. Granted, appellant has also raised a sufficiency of the evidence argument, but that does not cause that standard to diffuse to all arguments raised by Robinson on appeal. To allow such an interpretation of the evidence would lead to differing results in cases in which questions of sufficiency were raised in conjunction with other arguments, and in cases in which those other arguments were raised separate from a sufficiency claim. This is, at best, illogical.

In any case, I would find the instant case to be similar to the seminal case of Commonwealth v. Turner, supra. In Turner, the appellant was charged with the shooting death of Robert Hilton. There was conflicting testimony as to whether the appellant shot him after having overpowered him, or whether the gun went off in the course of a struggle. He testified in his own behalf that he noticed a drug dealer behind Hilton after he took the gun from him, and, thinking that the man had fired a shot at him, shot back, striking Hilton. On cross-examination, the prosecutor asked whether he had ever told the police someone was shooting at him. He had not given a statement to the police; his testimony in court was the first time he had offered an exculpatory version of the events. An objection to the question was made, the trial judge sustained the objection, but denied the motion for mistrial and gave cautionary instructions to the jury sua sponte. The prosecutor did not mention the appellant’s silence again.

According to this court in Commonwealth v. Hassine, supra, the appellant’s silence in Turner was silence at or after the time of arrest. Hassine, 340 Pa.Super. at 342, 490 A.2d at 450. Further, in Commonwealth v. Sanders, 324 Pa.Super. 372, 471 A.2d 885 (1984), the trial court questioned the appellant as to why he had not asked the doctor whose prescriptions he had allegedly stolen why the prescriptions were suspicious. Sanders had testified that he had received the prescriptions from the doctor a day or two before the incident. Id., 324 Pa.Superior Ct. at 375-76, 471 A.2d at 887. The appellant replied that he had not had time, as he had been handcuffed and thrown into the police car. Id. This court, relying on Turner, held that the error was reversible since it impermissibly questioned the appellant about his silence at the time of his arrest. Id., 324 Pa.Superior Ct. at 378, 471 A.2d at 888.

In this case, the prosecutor similarly attempted to question Robinson about his silence at the time of arrest:

Q: Why did the police find you hiding?
A: I was scared that I would get the blame.
Q: Do you know Officer Terry who testified today? Did you see him?
A: Yes.
Q: Was he there when you were searched and the quarters were found?
A: Yes.
Q: Did you tell the police officers anything when they found you?
A: No.
Ms. Kriesman: Objection, Your Honor. Improper question.

(emphasis added). The question, “Why did the police find you hiding?” goes to pre-arrest silence, and was not objected vto by counsel. The question to which counsel took exception did not deal with Robinson’s failure to relate his story to the police before his arrest. It concerned his silence when he was found, and as the record shows, he was taken into custody by police as soon as they discovered him.

Having determined that the prosecutor’s question was improper and violative of Robinson’s fifth amendment right not to incriminate himself, I would then determine whether the instructions given by the trial judge sufficiently eliminated any prejudice accruing to him from that question. Again, turning to Turner, we note that despite the trial court’s cautionary instructions, the supreme court of this Commonwealth held on appeal that substantial prejudice to the appellant had resulted. “[Tjhere exists a strong disposition on the part of lay jurors to view the exercise of the Fifth Amendment privilege as an admission of guilt____” Turner, 499 Pa. at 582, 454 A.2d at 539. According to the supreme court:

While it is efficacious for the Commonwealth to attempt to uncover a fabricated version of events, in light of the “insolubly ambiguous” nature of silence on the part of the accused ..., we do not think it sufficiently probative of an inconsistency with his in court testimony to warrant allowance of any reference at trial to the silence. Accordingly, the Commonwealth must seek to impeach a defendant’s relation of events by reference only to inconsistencies as they factually exist, not to the purported inconsistency between silence at arrest and testimony at trial. Silence at arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to the police at the time of arrest when in fact he remained silent____ Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.

Id., 499 Pa. at 583, 454 A.2d at 539-40.

In Gbur, however, this court stated that the Turner court said nothing to indicate that an improper pve-Miranda reference could not be cured by adequate cautionary instructions. Gbur, 327 Pa.Super. at 26, 474 A.2d at 1155. We note that the instructions given by the trial court in Turner were so vague as to be useless. Turner, 499 Pa. at 581 n. 2, 454 A.2d at 538 n. 2. The Gbur court noted that the facts before it differed significantly from those that had confronted the Turner court. In Turner, the Gbur court pointed out, the improper reference had come from the prosecutor during cross-examination of the appellant, and was an attempt to emphasize the silence of the appellant at the time of arrest in contrast to his testimony at the time of trial. Gbur, 327 Pa.Super. at 26, 474 A.2d at 1155. In Gbur, the testimony was inadvertently obtained from another witness, and in contradiction to other testimony that the appellant had not remained silent at arrest. Id., 327 Pa. Superior Ct. at 26-27, 474 A.2d at 1156. In this situation, the court held, adequate cautionary instructions could, and did, minimize the prejudice accruing to appellant. Id.

Applying the four-pronged test of Mays and Anderjack, I would hold that the nature of the reference to Robinson’s silence was such that no cautionary instruction could adequately assuage the prejudice created in the minds of the jury. The reference was made by the defendant himself, and was an explicit reference to the fact that he had not attempted to exculpate himself at the time of his arrest. Such an admission is strongly suggestive of guilt to a jury. See Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 85, 223 A.2d 296, 298 (1966). The present situation concerns just the type of questioning that the supreme court decried in Turner. In that case, although the supreme court did not explicitly consider the trial court’s instructions and declare them to be inadequate, it seems clear that the court found that the prejudice created by the remarks could not be cured by the trial court’s instructions.

The majority states that the reference to Robinson’s silence was not exploited by the Commonwealth and so was not grounds for reversal. I am unimpressed by the fact that counsel for the Commonwealth refrained from pressing the point after the reference was made, or from mentioning this silence during his closing arguments. The motivation behind the reference in cross-examination was clearly to place the silence at the time of arrest before the jury. In contrast to Gbur, the prosecutor here deliberately presented Robinson’s silence at the time of arrest to the jury, for comparison to his testimony at trial. The questioning which led to the reference to his silence focused on Robinson’s failure to remain and speak to police before he was apprehended. This appears to me to be sufficient exploitation of that silence to warrant either adequate cautionary instructions or a mistrial.

The last factor to be considered is the promptness and adequacy of the trial court’s instructions. After Robinson made the statement concerning his silence, counsel objected. A sidebar conference was held off the record. However, the trial court gave no instructions at this time, and the prosecutor continued with the questioning. Clearly, were cautionary instructions to have been of any value, they should have been given promptly. They were not. Instead, the jury was permitted to ruminate over the possible implications of the prosecutor’s questions and Robinson’s answers during an entire night.

Further, when the instructions were given the next day, the trial court instructed the jury that they could consider why Robinson failed to go to the police before he was arrested and explain that he was an innocent witness, but that they could not consider silence after he was arrested. While such instructions are strictly correct, I do not see that they in any way alleviated the problems arising from the prosecutor’s misconduct. Rather than erasing the prejudice from the jury’s mind, the instructions merely embedded it further.

I agree with the trial court that:

[It is] virtually impossible for the jury to disregard the logical question raised by the defendant’s exculpatory testimony that he witnessed a crime committed by others and saw the police arrive: Namely, why was nothing said. The failure of an innocent witness to come forward is neither incriminating nor interrogatory. It is simply a permissible logical question prompted by the defendant’s own testimony about his behavior before his arrest.

These logical questions in the minds of the jury are precisely the reasons why any curative instructions offered by the judge were inadequate. Robinson had no duty to remain and offer himself as a witness. However, failure to come forward cast a pall of guilt over him. It would be difficult for a jury to attempt to artificially sever his post-arrest silence from his pre-arrest refusal to come forward. The inclination would be to consider them both together; the refusal to relate his explanation to the police at arrest adds weight to the implication of his guilt arising from his failure to offer himself as a witness.

Although questioning Robinson about his failure to speak with the police before his arrest was permissible, it was blatant and prejudicial error for the prosecutor to continue the questioning into the post-arrest area. Further, giving no instructions until the following day compounded the prejudice accruing against Robinson. For these reasons, I would reverse the order of the trial court, and grant a new trial.

      . In particular, the defendant testified on rebuttal that no one forced him up from the ground behind the telephone pole where he was hiding. He stood up of his own accord and became visible to the officers before he was approached and directed not to move at the point of a gun by police.. He was thereafter handcuffed and searched.
      In contrast, Officer Vetere told of how Officer Schon-Bachler spotted the defendant and “grabbed hold of him and pulled him out” from under the telephone pole. Similarly, Officer Schon-Bachler recited on rebuttal that when the defendant "jumped up” from under the telephone pole, he was placed under arrest before he was put into the police wagon, searched and found to have rolls of coins on his person.
      It should be noted that none of the officers recalled whether a weapon had been pulled and aimed at the defendant as he rose from behind the telephone pole. It will be recalled that the defendant testified otherwise.

      . I would point out that I disagree with the Commonwealth’s contention that defense counsel’s decision to mention the post-arrest silence in her closing remarks precludes her from raising it on appeal before us. Counsel was clearly attempting to ameliorate the prejudice she felt had been created, and was zealously defending her client. I will not comment on whether this tactic was well- or ill-considered, and I would not view it as a waiver of this argument.


text:
    550 A.2d 807
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert L. ANDERSON.
    Superior Court of Pennsylvania.
    Argued Aug. 17, 1988.
    Filed Nov. 14, 1988.

      Gregory Anthony, District Attorney, Warren, for Com.
    Kenneth L. Crosby, Warren, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, WIEAND, OLSZEWSKI, KELLY, POPOVICH, JOHNSON and MELINSON, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from an order granting arrest of judgment following a conviction for corruption of minors. Robert Anderson had been acquitted by a jury of two counts of indecent assault based upon the same acts, done to the same victims, underlying the corruption of minors charges. We are asked to decide whether, as a result of Anderson’s acquittal of indecent assault, the conviction for corruption of minors must be set aside. Because we find that the convictions resulted from the introduction of sufficient evidence of specific acts by Anderson, and because these underlying acts, and not indecent assault, formed the basis of the corruption of minors charge, we reverse the trial court’s order, reinstate the jury verdict and remand for sentencing.

Anderson was charged with two counts of indecent assault and two counts of corruption of the morals of a minor based on his alleged activity with two sisters, aged ten and fourteen. The information charged, in pertinent part:

COUNT # 1: have indecent contact with another, not his spouse, or did cause such other or have indecent contact with him in that he did perform cunnilingus on [the victim] several different times knowing that the conduct was offensive... .INDECENT ASSAULT (M-2)
COUNT # 2: being the age of 18 years or older, corrupt or tend to corrupt the morals of ... in that he did perform cunnilingus on her several times.... CORRUPTION OF MINORS (M-l)
COUNT # 3: have indecent contact with another, not his spouse, or did cause such other to have indecent contact with him in that he did perform cunnilingus on the victim two times and place his hands on her intimate parts on several occasions knowing that the contact was offensive ... INDECENT ASSAULT (M-2)
COUNT # 4: Being the age of 18 years or older, corrupt or tend to corrupt the morals of ... in that he did perform cunnilingus on her two times, and placed his hands on her intimate parts on several occasions____CORRUPTION OF MINORS (M-l)

A jury convicted Anderson of the two counts of corruption of minors and acquitted him of the two indecent assault counts. In post-trial motions, Anderson asked the court to arrest judgment on the two corruption of minors convictions. He argued that because the underlying acts forming the basis of the corruption of minors charges were also the acts underlying the indecent assault charges, and because the jury had found him not guilty of indecent assault, the court should interpret the jury verdict as a finding that the underlying acts were not committed. The court granted the motion in arrest of judgment, stating that the conduct constituting the corruption of a minor was indecent assault and that, failing to prove “the specific acts,” the Commonwealth failed to sustain its burden of proof for the corruption charge. This appeal by the Commonwealth followed.

The trial court erred in extracting from the jury’s general verdict of not guilty of indecent assault the specific finding that the underlying act was not committed. In so holding, the trial court relied primarily on Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985), and by implication upon three cases relied upon by the Shirey court. We reject the trial court’s conclusion that these cases mandate an acquittal on the corruption of minors charge in this case. We will re-examine these cases below.

In its discussion, the trial court refers to “indecent assault” and the underlying alleged “specific acts” interchangeably, implying that they amount to the same thing. The court then proceeds on the assumption that indecent assault is an element of corruption of a minor and so interprets the general jury verdict as presenting a finding that the underlying act was not committed. The trial court wrote:

The corruption charge cannot stand by itself under 18 Pa.C.S. § 6301 by reason of the holding of [Commonwealth v. Shirey, supra], and the other underlying [sic] cases. Simply put, when the Commonwealth failed to prove to the satisfaction of the jury the charge of indecent assault by the sole act of the Defendant in performing cunnilingus on the victims, it follows as a matter of law the corruption charge must equally fall.

Opinion, 9/22/87. It is well settled that “[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence.” Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971) (citation omitted). When a general verdict is rendered, knowledge of the basis of the decision rests only with the jury itself. Therefore, it is impossible, not to mention improper, to draw specific conclusions from a general verdict. Applied to the present case, this principle yields the conclusion that an acquittal on indecent assault cannot be interpreted to mean as a matter of law that there was insufficient evidence to establish that the underlying acts in fact occurred.

This is especially so because the crime of indecent assault would have required proving not only that the underlying act occurred, but that the victims did not consent to the conduct. Indecent Assault is defined in pertinent part as follows:

A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:

(1) He does so without the consent of the other person; 18 Pa.C.S. § 3126. Conversely, consent is never an issue for proof of a corruption of minors charge, because the statute, protective in purpose, places the guardianship of minors’ morality upon adults. Commonwealth v. Collin, 233 Pa.Super. 300, 835 A.2d 388 (1975). See 18 Pa.C.S. § 6301, Corruption of Minors.

Further, the information did not allege the crime of indecent assault as the basis of the corruption of minors charge. Rather, the information specifically based the corruption of minors charge upon the acts of eunnilingus. Although the jury returned a verdict of not guilty of indecent assault by committing the acts of eunnilingus, we cannot determine if the jury decided that the acts of cunnilingus did not occur, or if the acts of eunnilingus occurred but the victims consented to them, or if the jury was simply exercising leniency. Commonwealth v. Parrotto, 189 Pa. Super. 415, 422, 150 A.2d 396, 399 (1959); See Commonwealth v. Carter, supra. We cannot determine why the jury returned a verdict of not guilty, and therefore cannot say as a matter of law that the jury believed that the acts of eunnilingus did not occur.

Moreover, we find that our conclusion, that the conviction for corruption of minors in the present case is not barred by the finding of not guilty of indecent assault, is supported by the rule established by the United States Supreme Court’s decision in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), that consistency in verdicts between the different counts of a criminal information is unnecessary. Justice Holmes wrote in Dunn “that the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” Dunn, 284 U.S. at 394, 52 S.Ct. at 191, 76 L.Ed. at 359. The Dunn rule has long been adopted by Pennsylvania courts, buttressed by the following rationale:

Allowing inconsistent verdicts in criminal trials runs the risk that an occasional conviction may have been the result of compromise. But the advantage of leaving the jury free to exercise its historic power of lenity has been correctly thought to outweigh that danger.

Commonwealth v. Glendening, 262 Pa.Super. 357, 361, 396 A.2d 793, 795 (1979) (citations omitted). The law requires only that there be sufficient evidence to support the convictions that the jury has returned. Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980). We have reviewed the record and find that sufficient evidence was before the jury to support a conviction for corruption of minors.

In light of our holding, we will now re-evaluate Shirey and the other three cases upon which both Shirey and the trial court rely, Commonwealth v. Wolff, 273 Pa.Super. 27, 416 A.2d 1072 (1979), Commonwealth v. Davison, 243 Pa.Super. 12, 364 A.2d 425 (1976), and Commonwealth v. Lambert, 226 Pa.Super. 41, 313 A.2d 300 (1973). In Shirey, as in the present case, the two charges at issue were indecent assault and corruption of minors. The acts in support of the corruption charge were enumerated on the information as 1) an act of indecent contact, 2) showing the child obscene magazines, and 3) discussing deviant sexual acts with the child. The information alleged that the specific act constituting the indecent contact was a touching of the child’s private parts. A jury convicted defendant for corruption of a minor but acquitted him for the indecent assault charges. Based upon this verdict, this Court wrote that:

the corruption conviction cannot be supported by the alleged acts of indecent assault, for as the jury clearly decided, the Commonwealth failed to prove those acts.

Shirey, 343 Pa.Super. at 195, 494 A.2d at 423. This conclusion is contrary to law because, as discussed above, the basis for a jury’s general verdict cannot be speculated upon by the trial court. Carter, supra. Nevertheless, the Court affirmed the conviction for corruption of a minor based on other conduct alleged in the informations under different counts, that the defendant made verbal sexual advances to the minors. Shirey’s analysis of the corruption of minors statute and its application of the statute to the other conduct alleged is well-grounded in law. The Shirey court strays only in holding that indecent assault must be proved before a guilty verdict for corruption of minors based on the same act can be proper. The Shirey court wrote that it was “constrained” to arrive at this conclusion under the holdings of Wolff, Davison, and Lambert. Commonwealth v. Shirey, 343 Pa.Super. at 195, 494 A.2d at 423.

In Commonwealth v. Wolff, supra, two teenage boys were allegedly molested by an adult who gave them a ride. The defendant was charged with involuntary deviate sexual intercourse with one boy and indecent assault with the other, the second boy, who allegedly was touched but escaped in time. The defendant was also charged with two counts of corruption of minors based on each of these acts. Before the jury deliberated, the trial court dismissed the indecent assault count. The jury then convicted the defendant of two counts of corruption of a minor, whereupon defendant appealed. We determined that the trial court properly upheld the conviction for corruption of minors that was based on the same underlying act as was the count of involuntary deviate sexual intercourse. However, we then held that because the indecent assault charge was dismissed before the jury deliberated, the jury could not then have returned a conviction for corruption of a minor based upon the act underlying that incident. The Wolff court relied on Davison and Lambert for this conclusion, that:

by specifically charging the manner by which appellant was alleged to have corrupted the morals of these minors, the Commonwealth was required to prove [the act charged].

Wolff, 273 Pa.Super. at 33, 416 A.2d at 1074 quoting Commonwealth v. Lambert, 226 Pa.Super. at 44, 313 A.2d at 301. The Wolff court also cited Davison.

The Wolff court misread Davison and Lambert. Both Davison and Lambert turn upon a due process issue, whether the Commonwealth’s proof matched the Commonwealth’s charges against the defendants. Hence, these cases are inapposite to Wolff. Both Davison and Lambert hold that the defendant must have proper notice of what the Commonwealth will attempt to prove. By substituting evidence at trial of an underlying act at variance with the one alleged in the indictment or information as supporting a charge of corruption of a minor, the Commonwealth violates a defendant’s due process rights. The defendant is then on insufficient notice as to what the Commonwealth will attempt to prove. In other words, in these two cases the Commonwealth charged one underlying act in support of a corruption of minors count but at trial introduced proof of another act to support the corruption of minors count.

In Lambert, the defendant was charged with a count of distributing dangerous drugs and for a count of corruption of a minor, also based on the act of giving the dangerous drugs to the minor. At trial the drugs were found not to be dangerous drugs under the then-existing drug schedules. The trial court found that the act of supplying unidentified pills to the minor was itself an action tending to corrupt the morals of a minor. This Court reversed, writing that

In criminal trials the proof offered by the Commonwealth must measure up to the charge made in the indictment. An indictment is the star and compass of a criminal trial ... [and] it must be a notification to the defendant of the charge he has to meet____
By specifically charging the manner by which appellant was alleged to have corrupted the morals of these minors, the Commonwealth was required to prove that appellant did furnish them with dangerous drugs.

Lambert, 226 Pa.Super. at 44, 313 A.2d at 301 (citations omitted). It is important to clarify that, had the Commonwealth originally charged the defendant with corrupting the morals of a minor by furnishing her with any unknown pills, the defendant would have been on sufficient notice, and a verdict of guilty of corruption would have been proper. The defense focus would then have been different: to prove that no pills were given, instead of a focus on the “dangerous” nature of the drugs. This situation is distinguishable from the the case before us, in which each of the counts in the information, both the indecent assault and the corruption of minors counts, specifically alleged the act that the Commonwealth set out to prove.

In Commonwealth v. Davison, at issue was whether the trial court failed to eliminate confusion in its reply to a jury query about the relationship between the rape charge and the corruption of a minor charge. The jury acquitted of rape but convicted of corruption of a minor. This Court, sitting en banc, reversed the conviction, writing:

[Appellant] complains that the court’s answer to the jury’s question led them to believe that the jury might convict appellant of corruption even if the jury believed that he did not commit rape. We decided in [Commonwealth v. Lambert ] that if an accused is charged with corruption by one act, and the Commonwealth does not prove that act, but proves some other act, the conviction for corruption cannot stand. Thus, the Commonwealth could not charge corruption by rape and prove corruption by indecent exposure____ Due process prevents the Commonwealth from substituting another act as the corrupting one.

Davison, 243 Pa.Super. at 21-22, 364 A.2d at 430 (citations omitted) (emphasis added). In both Lambert and Davison, the Commonwealth alleged specific acts to be the basis of the corruption of minors charge. At trial, the Commonwealth substituted proof of a different act as the basis for the corruption charge. No such due process problem presents itself in the case before us. The Commonwealth’s case consisted of proof that the act of cunnilingus on the two minors was committed, exactly as it charged in the original information.

For the foregoing reasons, Wolff and Shirey are hereby overruled to the extent that they hold that conviction for a charge of corruption of minors requires proof of anything more than proof of the specific underlying act alleged in the information. We reaffirm the principle that jury verdicts, even if inconsistent, cannot be challenged; we recognize the jury’s historic “power of lenity.” We thus reverse the order of the trial court.

Order reversed. Conviction for corruption of minors reinstated. Case remanded for sentencing. Jurisdiction relinquished.


author: ROWLEY, Judge:

text:
    550 A.2d 1009
    George C. KUNEY, Appellant, v. PMA INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 24, 1988.
    Filed Nov. 28, 1988.
    Reargument Denied Feb. 10, 1989.

      William David Marvin, Philadelphia, for appellant.
    Anthony J. Bilotti, Philadelphia, for appellee.
    Before BROSKY, ROWLEY and McEWEN, JJ.
   ROWLEY, Judge:

This is an appeal from an order of the trial court sustaining PMA Insurance Company’s (appellee’s) preliminary objections and dismissing appellant’s complaint. Although presented in his brief as two separate questions, appellant, George Kuney, raises only one issue in this appeal; i.e., whether an employee has an independent cause of action against his employer’s workmen’s compensation insurer if the insurer has engaged in conduct designed to frustrate the employee’s right to compensation under the Pennsylvania Workmen’s Compensation Act, 77 Pa.S.A. §§ 1 et seq. We hold that he does and reverse.

Appellant was injured on February 4, 1985, while working as an employee of Continental Data Systems (Continental). Appellee is Continental’s workmen’s compensation insurance carrier. Appellant filed a claim petition with the Pennsylvania Bureau of Workmen’s Compensation. The claim was litigated before a referee who filed a decision on February 10, 1987. It was determined by the referee that appellant was entitled to total disability benefits commencing April 12, 1985, interest on compensation past due, costs, and attorney’s fees. Appellee filed an appeal of the referee’s award to the Pennsylvania Workmen’s Compensation Appeal Board, as well as a request for a supersedeas. On April 14, 1987, appellant filed this civil action against appellee alleging that appellee had acted in bad faith in refusing to pay appellant any compensation or medical benefits. Appellant further alleged that appellee had engaged in conduct designed to delay and frustrate appellant’s assertion of his rights. Appellee filed preliminary objections to the complaint. The trial court held that appellant’s claim fell within the jurisdiction of the Workmen’s Compensation Act and that the Act is appellant’s exclusive remedy. The court sustained Appellee’s preliminary objections and dismissed Appellant’s complaint. Appellant filed this timely appeal from that order.

Appellant argues that this action is not barred by the Workmen’s Compensation Act because it is directed at the employer’s insurance carrier, and not the employer, for injuries caused by the carrier, separate and apart from those which were incurred at his workplace. Appellee responds that the Act is appellant’s exclusive remedy and precludes any action against it, relying upon Rosipal v. Montgomery Ward, 360 Pa.Super. 570, 521 A.2d 49 (1987), alloc. granted, 516 Pa. 635, 533 A.2d 93 (1987), appeal dismissed, 517 Pa. 460, 538 A.2d 495 (1988). Appellee’s reliance is misplaced, however. Rosipal involved an employee who commenced a civil action against her employer after the employer filed an allegedly fraudulent petition for termination of Workmen’s Compensation benefits. We held that the Workmen’s Compensation Act covered all injuries to an employee caused by the employer and that the exclusivity clause bars all civil actions flowing from work related injuries. The instant case, as alleged by appellant, involves no claim against the employer, but rather, only against the employer’s insurance carrier.

We find that the instant case is analogous to Reed v. Hartford Accident and Indemnity Company, 367 F.Supp. 134 (E.D.Pa.1973). There, the employee filed an action against his employer’s insurance carrier for its own independent tortious conduct. The complaint contained four counts: economic distress, conversion, abuse and misuse of process, and breach of the compensation agreement. As the court in Reed stated:

The Workmen’s Compensation Act provides an exclusive remedy for personal injury or death arising from employment-related accidents. Although the initial determinant of this present law suit may have been such an accident and such injuries, it is not that occurrence for which this suit is brought. That cause of action was resolved through the workmen’s compensation machinery. This present action is based upon Hartford’s alleged independent intentional torts and breach of their agreement, unrelated to Reed’s employment. This is not a case of permitting an employee to sue the employer directly. Rather this is a completely independent cause of action, arising out of the relationship between insured and insurer qua insurer.

Id. at 135.

Appellee argues in its brief that the Workmen’s Compensation Act has been amended since the decision in Reed to include all injuries including intentional torts. As correct as that statement is, it would not have affected the outcome in Reed. The decision in Reed was not based upon a reading of the Act that excluded intentional torts from its exclusive remedy provision. Rather, the court held that the Act did not bar an action by the employee against the insurance carrier for its own conduct. We find the decision in Reed persuasive.

In the instant case appellant has alleged in his complaint that his injuries were caused by, and are the causal result of appellee’s conduct, which was separate and apart from the work-related injury. Upon review of appellant’s complaint, we find that appellant has alleged sufficient facts to state a cause of action for deceit and fraudulent misrepresentation against appellee based upon its own conduct, and that the preliminary objections should not have been sustained. See Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986) (plaintiff may sue insurance carrier for common law actions of fraud and deceit). Therefore, we hold that the Workmen’s Compensation Act does not apply and that appellee is not immune from the suit alleged in appellant’s complaint.

Order reversed and case remanded for proceedings consistent with the foregoing opinion. Jurisdiction is not retained.


author: DEL SOLE, Judge:

text:
    550 A.2d 1011
    COMMONWEALTH of Pennsylvania, Appellant, v. Kenneth W. GREEN.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1988.
    Filed Nov. 28, 1988.

      Richard W. Webb, District Attorney, Palmerton, for Com., appellant.
    George T. Dydynsky, Palmerton, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

Appellant, Commonwealth, takes this appeal seeking to have reversed a trial court order which granted Appellee’s Motion for New Trial upon finding that his counsel was “entangled in a conflict of interest.” Trial Court Opinion at 1. Finding that the Commonwealth has failed to present any claim meriting the relief requested, we affirm the trial court order.

The underlying controversy centers upon the fact that Appellee, who was charged with crimes arising from the burglary of a local club, was represented by a member of the Public Defender’s Office of Carbon County. Appellant’s two co-defendant’s were also represented by members of the Carbon County Public Defender’s Office. Prior to the commencement of Appellee’s trial, co-defendant Trego pled guilty and co-defendant Neyer was acquitted of charges relating to the burglary. During his trial, Appellant denied any involvement or knowledge concerning the burglary; however, Trego, testifying for the Commonwealth, stated that Appellant participated in the planning and commission of the burglary. When Appellant voiced his concern about a possible conflict of interest post-trial, the trial court reviewed his claim and awarded him a new trial.

The trial court’s decision to grant Appellee’s Motion for New Trial was based upon a case which it found to be “factually identical, in all pertinent respects,” Commonwealth v. Evans, 306 Pa.Super. 25, 451 A.2d 1373 (1982). Trial Court Opinion at 6. In Evans three co-defendants were each represented by different members of the Beaver County Public Defender’s Office. The Evans court found that since there existed dual representation and since one of the co-defendants testified against the appellant, who denied any involvement in the robbery, a conflict of interest existed requiring the award of a new trial. The court concluded that under either the “actual harm” standard utilized in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) or under the less stringent “potential harm” standard delineated in Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974), the appellant was entitled to a new trial. Commonwealth v. Evans, supra, 306 Pa.Superior Ct. at 32 n. 1, 451 A.2d at 1376 n. 1.

The Commonwealth argued before the trial court that the Public Defender’s Office of Carbon County should not be considered one law firm and, in the alternative, regardless of whether there was dual representation, Appellee was required to show that “actual” as opposed to “potential” harm existed. The Commonwealth claimed that the distinction between requiring proof of actual as opposed to potential for harm in dual representation cases was dependent upon whether the defendant raised the issue pre-trial or post-trial. It was submitted that where the issue is not raised pre-trial, as in this case, actual harm must have occurred to warrant relief. The Commonwealth contrasted the procedural posture of Cuyler v. Sullivan, supra, which required actual harm to be shown when the issue was raised post-trial, with Pennsylvania cases where the potential for harm standard was applied. See: Commonwealth v. Pinhas, 496 Pa. 210, 436 A.2d 618 (1981); In the Interest of Saladin, 359 Pa.Super. 326, 518 A.2d 1258 (1986). In considering the Commonwealth’s arguments the trial court ruled that the independent nature of the members of the Carbon County Public Defender’s office did not alter it’s status as a single law firm. It further found, citing Commonwealth v. Evans, supra, that regardless which standard was applied, both potential and actual harm could be found in this case since the Public Defender’s Office represented co-defendants whose versions of the incident were at odds.

In the present appeal, the Commonwealth submits that no actual harm occurred in this case. However, the Commonwealth does not argue, as it did before the trial court, that the actual harm, as opposed to the possible harm standard should be applied to the facts of this case. Instead, as stated by the Commonwealth: “The key question to be answered, however, is whether or not co-defendants were represented by members of the same ‘law firm.’ ” Appellant’s Brief at 8. In support of this single claim, the Commonwealth details the workings of the Carbon County Public Defender’s office. It indicates that its members work independently and do not share facilities, staff or files. They each maintain a private office and utilize their own private secretarial help. The County is billed for reimbursement. The Commonwealth contrasts this practice with that found in Philadelphia County where, it submits, all the characteristics of a law firm are present including shared expenses, facilities, office staff and a common interest in the outcome of cases. The distinctions between the operations of the Philadelphia and Carbon County Public Defenders’ Office, the Commonwealth argues, is justification for not applying the Supreme Court decision in Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979).

The Supreme Court in Westbrook cited to an earlier case in which it held “members of the public defender’s office would be considered members of the ‘same firm’ for purposes of presenting a claim of ineffective assistance of trial counsel”. Id., 484 Pa. at 539, 400 A.2d 162 (citing to Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974)). Finding that the Public Defender’s Association of Philadelphia constituted a law firm, the court held that two members of the same firm are prohibited from representing multiple clients with inconsistent defenses. Id. The Supreme Court did not undertake an examination of the workings of the particular Public Defender’s office at issue in Westbrook or Via. And the holding of Westbrook was applied in Commonwealth v. Evans, supra to a situation involving the Public Defender’s Office of Beaver County.

After examining Appellant’s claim in view of the applicable cases we agree with the trial court that “Westbrook and its progeny provide us with no authority to undertake a distinct inquiry into the structure of any particular Public Defender’s Office to determine whether or not it is truly a ‘law firm’ for conflicts of interest analysis.” Trial Court Opinion at 7. We find support for the trial court’s conclusion that the Public Defender’s Office of Carbon County is, by its very nature, a law firm; accordingly, we. affirm its order awarding Appellee a new trial.

ORDER AFFIRMED.


text:
    550 A.2d 1013
    Furman RALEIGH, Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1988.
    Filed Nov. 23, 1988.

      David B. Washington, Pittsburgh, for appellant.
    Craig Marton Brooks, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   JOHNSON, Judge:

Furman Raleigh appeals from the Order entered February 18, 1988 in the Court of Common Pleas of Allegheny County. This Order granted Westinghouse Electric Corporation’s Motion for Judgment on the Pleadings on the ground that Raleigh’s suit was time-barred. We affirm.

Raleigh alleged that Westinghouse Electric Corporation engaged in racial discrimination when it discharged him on January 13, 1984. In addition, Raleigh argued that this alleged racially discriminatory discharge was in violation of the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. Raleigh timely filed discrimination complaints with the Pennsylvania Human Relations Commission (PHRC) and the Equal Employment Opportunities Commission (EEOC). The PHRC dismissed Raleigh’s complaint on January 7, 1985 as the EEOC had done earlier. Raleigh filed suit in Common Pleas Court of Allegheny County on September 10, 1987. Westinghouse filed a Motion for a Judgment on the Pleadings. The trial court granted Westinghouse’s motion and dismissed Raleigh’s suit as time: barred. This appeal followed in which Raleigh raises the following issues:

I. Whether the trial court was correct in running the statute of limitations from the date of alleged unlawful employment practice.
II. Whether the trial court applied the correct statute of limitations in computing the time period for filing a claim in this case.

Raleigh’s first argument is that because his suit has been brought under the Pennsylvania Human Relations Act (PHRA), 43 Pa.S. § 951 et seq., which has no self-contained limitations period, laches is the only appropriate defense to a charge of timeliness. Raleigh contends, therefore, that no statute of limitations governs the PHRA. We cannot agree with this contention. The trial court properly found that Pennsylvania’s general statute of limitations detailed in 42 Pa.C.S. § 5501 governs Raleigh’s action. This statute provides the following:

(a) General Rule.-A civil action, proceeding or appeal must be commenced within the time specified in or pursuant to this chapter unless ... a different time is provided by this title or another statute.

42 Pa.C.S. § 5501.

In the instant case the trial court found Raleigh’s alleged racial discrimination to be analogous to a tort claim for personal injury, Darlington v. General Electric, 350 Pa.Super 183, 207, 504 A.2d 306, 318 (1986), and determined that the statutory requirements provided in 42 Pa.C.S. § 5524(7) were applicable. This statute provides for a two year period to bring tort claims and also encompasses in pertinent part:

“any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass____”

42 Pa.C.S. § 5524(7). As amended 1982, Dec. 20, P.L., 1409, No. 326 Art. II, § 201. Raleigh charged Westinghouse with terminating his employment for the purpose of discriminating against him because of his race. This cause of action charges intentional as well as tortious conduct and is thus within the ambit of 42 Pa.C.S. § 5524. Accordingly, we find no error in the trial court’s finding that the two year statute of limitations set forth in 42 Pa.C.S. § 5524 applies to Raleigh’s action.

Since we agree with the trial court that the two year statute of limitations applies, we find Raleigh’s argument at Issue II, providing for the application of the six year statute of limitations found in 42 Pa.C.S. § 5527, to be meritless.

In reviewing a trial court’s decision granting a motion for judgment on the pleadings, an appellate court applies the same standard employed by the trial court. A trial court in granting judgment on the pleadings must confine its consideration to the pleadings and relevant documents. The court must accept as true all well-pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted. We will affirm the grant of such a motion only where the moving party’s right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise. Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986).

Raleigh’s complaint, filed September 10, 1987, alleged that Westinghouse discharged him on January 13, 1984 and that the PHRC informed him of his right to institute an action on January 7, 1985. Based on the allegations contained in Raleigh’s complaint, we find that the trial court properly concluded that the applicable two year statute of limitations had run out whether applied as of the date of Raleigh’s discharge from employment, Chittenholm v. Giffin, 357 Pa. 616, 55 A.2d 324 (1947), C.M. Eichenlaub Co. v. Fidelity & Deposit Co., 293 Pa.Super. 11, 437 A.2d 965 (1981), or on the date that Raleigh’s complaint was dismissed by the PHRC. We conclude that the trial court acted properly by granting Westinghouse’s motion for judgment on the pleadings and by dismissing Raleigh’s complaint. Accordingly, we affirm the trial court’s order.

ORDER AFFIRMED.


author: MONTGOMERY, Judge:

text:
    550 A.2d 1015
    In re ESTATE OF Lonny L. McDAVITT, Deceased. Appeal of Lavern McDAVITT, Executrix of the Estate of Lonny L. McDavitt, Deceased.
    Superior Court of Pennsylvania.
    Submitted Aug. 1, 1988.
    Filed Nov. 30, 1988.

      Alfred S. Pierce, Nazareth, for appellant.
    Before OLSZEWSKI, MONTGOMERY and HOFFMAN, JJ.
   MONTGOMERY, Judge:

The instant appeal, by LaVern McDavitt, arises from an Order of the trial court, later reduced to a Judgment, concerning several disputed estate issues. The Appellant is the named Executrix and sole heir under the Will of her son, Lonny L. McDavitt, who died on September 16, 1984. The appeal involves disputes which were created by objections which were filed against the first and partial accounting filed by LaVern McDavitt, as well as by a petition which was filed to have the Appellant removed as Executrix, and surcharged for alleged improprieties in connection with the Estate. Such objections and petition were instituted by Mary J. (McDavitt) Whiting, the widow of Lonny McDavitt, who asserted a claim against the Estate for a surviving spouse interest, pursuant to her rights under the Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 2507(3).

The record of this case reveals a bitter conflict between a mother and wife over the somewhat complicated assets of the decedent, many of which were commingled with assets of each of the two women. The discord has spawned significant litigation over many aspects of the Estate. We need only address those facts and aspects of the legal dispute which are germane to the issues tó be resolved on appeal. The trial court denied the petition for removal of the Appellant and a surcharge, but it granted some requests by Ms. Whiting. In that regard, the trial court determined that certain sums should have been included as assets of the Estate in the accounting filed by the Appellant in her role as Executrix. It is from the latter rulings that the Appellant has appealed.

The contentions raised on appeal largely involve the resolution of disputed facts by the trial court. Thus, it is pertinent at the outset of our analysis to note that it is well-established that the decisions of the trial judge in Orphans’ Court matters will not be reversed unless there appears to have been an abuse of discretion or a fundamental error in applying the correct principles of law. See In re Estate of Elias, 429 Pa. 314, 239 A.2d 393 (1968); In re DiPietro’s Estate, 306 Pa.Super. 238, 452 A.2d 532 (1982). The credibility of witnesses is to be evaluated by the hearing judge, and not the reviewing court. In re Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976). Moreover, the record must be read on appeal in a light most favorable to the appellee. Estate of Younger, 314 Pa.Super. 480, 461 A.2d 259 (1983).

The first argument raised by the Appellant is that the trial court erred in failing to determine that an oral lease arrangement existed between the decedent and Travel-Rite Auto Sales and Service, Inc. (hereinafter referred to as “Travel-Rite”), for the operation of a Columbia, New Jersey garage and the use of a Freightliner truck. The record shows that at the time of his death, the decedent owned and operated a proprietorship dealing in fuel oil and gasoline sales. In the course of this business, he used vehicles which were owned by Marlon Leasing, Inc., a corporation then solely owned by his spouse, Mary J. (McDavitt) Whiting. Decedent’s business was operated using the garage in Columbia, New Jersey, which was owned by Travel-Rite, and a garage in Greenwich Township, Burks County, Pennsylvania, owned by Knowlton Elms Corp. (hereinafter referred to as “Knowlton”). Both Travel-Rite and Knowlton were New Jersey corporations, of which Appellant LaVern McDavitt was the sole shareholder. A Freightliner truck, which was also the property of Travel-Rite, was also used in the decedent’s business operations.

It was the testimony of the Appellant that there was an oral lease arrangement between the decedent and Travel-Rite for the operation of the Columbia facility, and the rental of the Freightliner. The widow, by her petition, disputed such an arrangement, and asserted that the Executrix improperly failed to include the value of Travel-Rite as an asset of the Estate in her account, because the corporation was allegedly owned by the decedent at the time of his death. The trial court, after hearing all of the evidence, ruled that Travel-Rite was still the property of the Executrix. However, the trial court also found that the decedent had made substantial investments in Travel-Rite, as well as in Knowlton, in reliance upon an agreement with his mother to transfer these corporations to him. Further, the trial judge found that substantial steps had been, taken to accomplish this transfer. Thus, he pointed out in his Opinion that the Executrix had sent letters to her accountant indicating that the transfers of the corporations were already made, agreements of sale had been signed, and the decedent had opened bank accounts on behalf of each corporation. Although stock transfers had never been accomplished prior to the decedent’s death, the trial court determined that it would be unjust enrichment to allow the corporations to retain all such investments made by the decedent in contemplation of such transfers. Accordingly, the trial judge rejected the claim that the use of the Columbia, New Jersey facility and the Freightliner had merely been under a lease arrangement between the decedent and Travel-Rite, so that the value of such assets would not be includable in the Estate. Rather, the trial judge ruled that to avoid an unjust enrichment, the final account should reflect that $40,800.00 was owed by Travel-Rite to the Estate, for various payments made by the decedent.

We can discern no error in such findings and rulings by the trial court. They were all based upon clear evidence of record in the case. Such evidence was sufficient to overcome the testimony by the Executrix concerning a purported oral lease arrangement. It is noteworthy, in that regard, that the record showed that the decedent did not pay a periodic rental payment, as such, for the use of the New Jersey facility or the truck. Rather, he paid mortgage payments on the property, and loan payments on the vehicle. Such a financial history, together with the other evidence concerning the intent of the decedent and his mother to transfer the ownership of Travel-Rite to-him, certainly rebutted her assertions of an oral lease arrangement. Accordingly, we reject the Appellant’s assertion that the trial court erred in its determination that the Estate’s accounting should show that her wholly owned corporation, Travel-Rite, owed the decedent sums advanced towards his purchase of its assets and/or stock.

In a related claim, the Appellant contends that the trial court had no jurisdiction to enter an order based upon the theory of unjust enrichment. In essence, the Appellant argues that the Orphans’ Court jurisdiction is strictly limited, such that it could not make awards relating to title to personal property, or unjust enrichment. It is further maintained that issues concerning the ownership of a foreign corporation could only have been decided in other proceedings, possibly in the New Jersey courts. We cannot agree with that position.

It is clear that the jurisdiction of the Orphans’ Court is limited and is statutory in origin. In re Estate of Soupcoff 329 Pa.Super. 130, 477 A.2d 1388 (1984). However, once it is determined that the Orphans’ Court has jurisdiction to hear a case, it has the same authority as the whole Court of Common Pleas to resolve the variety of disputes which may be presented to it, within the context of its jurisdiction. On this point, see the discussion in In re Estate of Reinert, 367 Pa.Super. 147, 532 A.2d 832 (1987). In that case, an estate was held to be entitled to recover a specific sum of money stolen from the decedent, from the individual who took the money. Further, we are assisted in the resolution of this issue by the guidance of the Supreme Court of Pennsylvania in Estate of Hahn, 471 Pa. 249, 369 A.2d 1290 (1977), where the Court explained the power of the Orphans’ Court to proceed according to equitable principles in cases properly before it. In the instant case, the trial court did not resolve a property dispute in a way which required any transfer of the shares or actual physical assets of Travel-Rite. Instead, it merely required the Executrix to include the amounts which had been previously paid by the decedent, toward the purchase of the assets of that corporation, as a claim in the accounting of the assets in the decedent’s Estate. That, as well as other assets, will merely be considered in computing the share of the Estate to which the surviving spouse may be entitled. We reject the contention that the trial court committed error in such circumstances.

We next address the Appellant’s claim that the record did not establish unjust enrichment, creating a claim against Travel-Rite in the amount of $40,800.00, as discussed above, as well as a claim against Knowlton, amounting to $104,593.29. Quite simply, we find that the record provided substantial evidence to support the trial court’s finding of unjust enrichment regarding both corporations. We have already discussed our conclusions as to the determinations reached by the trial judge concerning the amounts found due from Travel-Rite. Similar evidence supported the trial court’s conclusions regarding the amounts which must be listed in the accounting of the Estate as due from LaVern McDavitt’s Knowlton corporation. In essence, the record establishes that all of the monies advanced by the decedent for both real estate purchases and for improvements, to benefit Knowlton, were not lease payments, and were properly considered to have been payments on account toward the purchase of the shares of that corporation by the decedent. While the trial court found that both corporations remained the property of the Executrix at the time of the decedent’s death, as actual stock transfers had not been accomplished, it would have been unjust to ignore the decedent’s substantial payments made towards the purchase of both corporations, and the trial court did not err in crediting the Estate with the value of such payments. Therefore, we find no merit in the claims of the Appellant that the trial court acted incorrectly in its determinations of unjust enrichment in these matters.

Finally, we examine the argument by the Appellant that the trial court erred in its disposition of a claim asserted against the Estate by Petroleum Contractors, Inc., in the amount of $25,551.43. The Appellant contends that this amount was treated as a proper claim by the trial court and credited as such in its decision as to the amount the Executrix was to include in her accounting. She further states that she subsequently justified her position in the case by settling the matter for a $12,000.00 payment by the Estate. She asks that the trial court’s order be amended to reflect the correct amount paid by the Estate to Petroleum Contractors, Inc.

On the same issue, the widow asserts that the claim of Petroleum Contractors, Inc. for $25,551.43 was properly found by the trial court to be a debt of Knowlton, and not the Estate. Such a finding would seemingly be inconsistent with the alleged subsequent compromise of the debt by the decedent, and payment of it from the assets of the Estate.

Unfortunately, from the record, we cannot determine with assurance what the trial court concluded with respect to this debt. In an Order issued on March 15, 1988, denying and dismissing Appellant’s post-trial motions, the trial court stated that it was adopting its Opinion dated September 1, 1987, on the issue, and concluded that the claim was properly included in the $104,593.29 that Knowlton owed the Estate. However, there was no discussion of the Petroleum Contractors’, Inc. claim in the September 1, 1987 Opinion.

In light of the confusing state of the record on this particular issue, we are constrained to remand this case to the trial court for further clarification or consideration of its disposition of the Petroleum Contractors’, Inc. claim. We note that the Appellant attacks the trial court’s determination on this claim on the same unjust enrichment arguments we have discussed and rejected earlier in this Opinion. Accordingly, as our views regarding such arguments are apparent, we assume that the trial court can resolve this claim to the satisfaction of the parties, without further appellate review by our Court. Therefore, we shall not retain jurisdiction over the case at this time. After remand, and clarification and/or resolution by the trial court of the Petroleum Contractors’, Inc. claim, as it affects the Estate, if further appellate review is desired on that issue, it shall be sought in the context of a separate appeal.

The Judgment of the trial court is affirmed in part, and the case is remanded for further consideration and clarification, consistent with this Opinion. Jurisdiction is not retained.