author: CIRILLO, Judge: SPAETH, Judge,

text:
    460 A.2d 791
    COMMONWEALTH of Pennsylvania v. Henry HAYES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 29, 1982.
    Filed April 29, 1983.
    Petition for Allowance of Appeal . Denied Oct. 13, 1983.

      Kalvin Kahn, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence imposed on the appellant, Henry Hayes, on June 10, 1981, in the Court of Common Pleas of Philadelphia County. A jury convicted appellant of burglary, and the court, after denying appellant’s post-trial motions, sentenced him to three to twelve years imprisonment. We affirm.

On October 29, 1980, at approximately 6:20 a.m., the doorbell rang at 1910 Harlan Street in Philadelphia, the home of 80 year old Addie Brooks. When Ms. Brooks answered the door, the man at the door told her he had come to read the meter in the basement. Ms. Brooks commented that it was “mighty early,” but the man responded “we are coming early now.” Ms. Brooks let him in to read the meter. He went down to the basement, then came back up and asked if he could see Kenny Myers, Ms. Brooks’s tenant at the time. Ms. Brooks replied, “No, Kenny is not up,” but the man went up to the second floor. While he was upstairs, Ms. Brooks called the police on the downstairs phone. The man then returned to the first floor carrying a bucket of pennies, and asked Ms. Brooks where her money was. He stayed a few minutes longer, then exited.

In the meantime, Officers Edward Sawicki and Thomas Newbert had received a radio call to proceed to 1910 Harlan Street. Within thirty seconds of the call, they arrived on the scene. Officer Sawicki spotted the appellant on the doorstep in front of 1910 Harlan, whereupon the appellant ran across the street into a blind alley. Officer Newbert, along with Officer Michael Janda, who had also responded to the call, gave chase on foot. During the chase, appellant dropped the bucket taken from Ms. Brooks’s residence. Moments later, the officers apprehended him. Officer Newbert had never lost sight of the appellant from the time he started to run from the doorstep.

Officer Sawicki, seeing that his colleagues had captured the appellant, returned to 1910 Harlan Street, where Ms. Brooks told him she had been robbed. Officers Newbert and Janda brought the appellant before Ms. Brooks, who identified him as the intruder. Less than one minute had elapsed from the time the police first arrived on the scene. Officer Newbert examined Ms. Brooks’s second floor bedroom and observed that the closet and drawers had been rummaged through.

At trial, appellant denied this version of the facts. He also testified that he was a long-time drug user; that, after buying drugs on the morning in question, he was going to visit a friend with whom he would every now and then “take off on drugs”; that he was stepping into the yard of his friend’s residence at 1911 Harlan Street, across the street from 1910 Harlan, when police arrested him; and that he told the arresting officer that he (appellant) was “getting ready to take off on drugs.”

Appellant’s first assignment of error is that the court refused to pose appellant’s requested voir dire question whether prospective jurors could participate as fair and impartial jurors upon hearing that the defendant in the case was a drug user. The same issue was treated in Commonwealth v. Werts, 483 Pa. 222, 224-25, 395 A.2d 1316, 1317 (1978), in which the Supreme Court said:

Appellant’s first contention is that the trial court erred in not allowing defense counsel to ask the following questions during the voir dire of prospective jurors:
If you were to hear evidence about a person having used drugs, would you be more inclined to give his testimony less weight than any other witness that you did hear?
If you were to hear testimony concerning drug addiction or use of drugs, do you think, deep down inside of you, you would be inclined to reject any evidence offered by parties indicating that they have used drugs? This Court has held that “the examination of jurors
under voir dire is solely for the purpose of securing a competent, fair, impartial and unprejudiced jury____ Neither counsel for the defendant nor the Commonwealth should be permitted to ... ask direct or hypothetical questions designed to disclose what a juror’s present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the trial of the case.” Commonwealth v. Johnson, 452 Pa. 130, 134, 305 A.2d 5, 7 (1973). “A trial court’s refusal to permit certain hypothetical questions on voir dire will not be disturbed absent a palpable abuse of discretion.” Commonwealth v. England, 474 Pa. 1, 8, 375 A.2d 1292, 1295 (1977).
At the beginning of voir dire, defense counsel stated during a sidebar conference that he wanted to ascertain whether the prospective jurors had “any prejudice or bias that would gravitate against the interest of my client if there is any evidence presented by us to show that my client, perhaps, was using drugs at the time he was arrested, and this may have some effect upon whether he intelligently waived his right to counsel”. The trial court did not abuse its discretion in not permitting the aforementioned line of inquiry because defense counsel was improperly trying to determine what the prospective jur- or’s reaction might be when and if defense counsel presented evidence that appellant was under the influence of narcotics when he waived his Miranda rights.

We fail to see any relevant distinction between the purpose of the proposed voir dire questions in Werts and the purpose of the proposed voir dire question in this case. In both cases, the questions were “designed to disclose what a juror’s present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the trial of the case.” Therefore, we hold that the trial court did not abuse its discretion in refusing to ask appellant’s proposed voir dire question, and there was no error.

Appellant next assigns four errors in the trial court’s jury charge. First, appellant contends that the court charged improperly on the issue of inconsistent witness identification statements. At trial, Ms. Brooks testified positively under both direct and cross-examination that appellant was the man who had entered her home. However, defense counsel brought out on cross-examination that at the preliminary and suppression hearings, Ms. Brooks had also said, “I think he is the one,” and, “Looks like that’s the man.” Based on this prior testimony, defense counsel requested the following jury charge:

According to the evidence, Mrs. Brooks gave testimony on another occasion which appears to conflict with the— contradict part of the testimony given at this trial.
You may accept her other testimony as being true, you may accept her testimony as replacing the testimony which she gave in this trial.

The court’s charge was as follows:

Now, there was argument, you will recall, and discussion by both Mr. Barbieri and Mr. DeMarco as to whether Mrs. Brooks made an inconsistent statement, and in particular the inconsistent statement they were talking about, whether at a prior hearing she had indicated some reservation or hesitancy about whether, “This is the man,” as distinguished from “I think this is the man,” and you heard their arguments from both of them as to whether this did show hesitancy or didn’t show hesitancy; whether that is an inconsistent statement what she said here, or whether it was not.
Very often the Judge can say, “In my opinion, it is this, that or the other thing,” but that is not my job.
You are going to have to decide whether this witness made an inconsistent statement, or one that appears to contradict on what she said earlier, and if you decide that there was such an inconsistent statement, you may, if you wish, accept the other testimony, that is, the testimony given at the earlier time as replacing the testimony which she gave in the trial.
As I say, again, this is a matter for you to balance, to weigh it.
You may accept it as testimony in place of what Mrs. Brooks said here, but it is the judgment call for you to make.

The trial court is not required to accept the language of the point submitted by counsel, but rather is free to select its own form of expression. The only issue is whether the area is accurately and clearly presented to the jury for consideration. Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975); Commonwealth v. Boone, 287 Pa.Super. 1, 429 A.2d 689 (1981). In the instant case, the court’s charge differs from the requested charge only in that the former more explicitly leaves to the jury the determination whether Ms. Brooks’s prior statements were inconsistent with her testimony at trial. The judge’s charge on this point was entirely proper, and accordingly we find no error.

Appellant’s second objection to the court’s jury charge concerns the law applicable to the identification procedure used by the police at the scene of the crime. Appellant requested that the court charge the jury that the police could have conducted a lineup at the scene of the crime. The court’s actual charge was that the law did not require a lineup, and that the police acted lawfully in conducting a one-on-one showup between Ms. Brooks and the defendant. Absent some special element of unfairness, a prompt on-the-scene confrontation is a permissible means of having a criminal suspect identified. Commonwealth v. Turner, 254 Pa. 520, 314 A.2d 496 (1974); Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981); Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979) . Additionally, criminal defendants in Pennsylvania have no constitutional right to a pretrial lineup. Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979); Commonwealth v. Evans, 460 Pa. 313, 333 A.2d 743 (1975); Rose, supra; Commonwealth v. Frank, 263 Pa.Super. 452, 398 A.2d 663 (1979). Appellant has not alleged that the particular circumstances of this case rendered the showup with Ms. Brooks unfair. Instead, he contends only that the court should have gone on to instruct that police could have conducted a line up. However, the court had no duty to charge the jury on law not applicable to the case. Commonwealth v. Parks, 281 Pa.Super. 38, 421 A.2d 1135 (1980) . Where the charge given properly covers the requested point, it is not error for the trial judge to refuse to give additional instructions. Commonwealth v. Hawkins, 295 Pa.Super. 429, 441 A.2d 1308 (1982); Commonwealth v. Gardner, 246 Pa.Super. 582, 371 A.2d 986 (1977). Since the court properly charged the jury that the showup was permissible and that a lineup was not required, the court did not err in refusing to give the additional instruction requested by appellant.

Appellant next objects to that portion of the charge in which the court told the jury that they could consider Hayes’s testimony that he was a drug user as part of the “whole picture” in assessing. his credibility. In Commonwealth v. Whack, 482 Pa. 137, 141 n. 2, 393 A.2d 417, 419 n. 2 (1978), the Supreme Court stated:

Appellant also argues that the fact that Newell was an admitted marijuana user, and that his testimony was based upon an observation in a crowded bar approximately 30 feet from where the deceased was standing, his testimony should be rejected. [Sic] These were considerations properly left to the trier of fact. (Emphasis added).

And in Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980), the Supreme Court held that the fact a witness used drugs was a matter of credibility properly left to the jury’s consideration. Appellant, in an attempt to account for his presence near the scene of the crime, testified of his own volition that he was a drug user. The only issue with respect to this testimony was whether the jury would believe it. The trial judge did not err when he permitted the jury to consider Hayes’s purported drug use, upon which his alibi defense depended, as a factor bearing on the believability of the alibi. Although the judge might have framed the charge in terms less objectionable to the dissent, he did leave it open to the jury to decide whether they wished to attach any importance to the testimony of drug use, and he did properly give the instruction requested by defense counsel that evidence of drug use could not be considered as evidence of guilt in the case. Because reversible error cannot be predicated on isolated excerpts of the charge, we must review the entire trial court instruction on the issue of appellant’s drug use. Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981). Having done so, we conclude that the charge as a whole comports with Supreme Court holdings, and consequently the court did not err.

Appellant’s fourth objection to the court’s charge concerns the “entry” element of burglary. The court instructed the jury that the permission given by Ms. Brooks to enter the house could be viewed as “non-permission” either because appellant had misled Ms. Brooks into believing he was employed as a meter reader, which he was not, or because permission was given only to read the meter in the basement, and not to go up to the second floor. Appellant argues that he had permission to enter Ms. Brooks’s house, and that, once inside, his going from the basement to the second floor of the house did not constitute a separate entry for purposes of the burglary statute.

The Crimes Code, at 18 Pa.C.S. § 3502(a), defines burglary:

A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

“Under this section, a person who is licensed or privileged to enter the premises is not a burglar even though he intends to commit a crime therein.” Commonwealth v. Corbin, 300 Pa.Super. 218, 220, 446 A.2d 308, 309 (1982). Furthermore, it is the Commonwealth’s burden to prove beyond a reasonable doubt that the defendant was not licensed or privileged to enter the building. Id.

The issue in this case is whether Ms. Brooks’ consent to let appellant in gave him license or privilege to enter, so that the Commonwealth failed to carry its burden of proving unlicensed and unprivileged entry. We hold that the fact that appellant deceived Ms. Brooks as to his purpose for wanting in vitiated any consent she may have given him to enter, and that he was therefore neither licensed nor privileged to enter.

We have found no recent Pennsylvania case in which a burglar induced consent to enter through deception. However, the situation has been addressed in Commonwealth v. Starkes, 268 Pa.Super. 108, 114, 407 A.2d 853, 856 (1979), where we said: “We agree with the lower court that the element of license and privilege, in the particular context of the instant case, is quite similar to defense of consent. We further agree that, like consent, license and privilege can be vitiated if they are ‘induced by force, duress, or deception.’ 18 Pa.C.S.A. § 311(c)(4).” (Footnote omitted). In Starkes, the defendants had been let in voluntarily by the victim, who testified that she had done so because she recognized one of them and because it was cold outside. A three-judge panel of this Court, with Judge Hester dissenting, held that there was no deception sufficient to vitiate license or privilege to enter. However, the Court distinguished two cases from other jurisdictions where burglars had deceived their victims to gain entry.

In United States v. Kearney, 498 F.2d 61 (D.C.Cir.1974), the defendant had gained entry to a building where a card game was going on by dressing like a woman and pretending to be waiting for the arrival of a friend who was to join the game. The court stated that this subterfuge vitiated any consent the defendant had to enter, but in dicta; under the District of Columbia statute, consent to enter was not a defense to burglary, as long as the intent to commit a crime was proven.

In People v. Segal, 78 Misc.2d 944, 358 N.Y.S.2d 866 (Cr.Ct.N.Y.1974), two young men had gained entry to the CBS newsroom under the pretense that they were journalism students wanting to witness a live news broadcast. After disrupting the live broadcast by holding up a placard saying “Gays Protest CBS prejudice” in front of a camera trained on Walter Cronkite, the two were convicted of unlawful entry. The appeal court had to determine whether the original permission given the defendants to enter and remain on CBS property had conferred license or privilege on them, so that they could not be found guilty of entering or remaining unlawfully on the premises. In upholding the convictions, the court quoted the following proposition from the Practice Commentary of McKinney’s Penal Law, page 341: “Of course, a person who gains admittance to premises through intimidation or by deception, trick or artifice, does not enter with 'license or privilege.’ ” 78 Misc.2d at 948, 358 N.Y.S.2d at 870.

The same result has been reached under burglary statutes requiring a “breaking and entering.” “The requirement of a breaking may be satisfied by what is termed a constructive breaking when an entry without actual breaking is obtained by means of fraud, threats, or conspiracy. Accordingly, when entry has been effected under the pretense of having business with the occupant or of paying a social visit, the defendant is deemed to have committed a breaking.” (Footnotes omitted). R. Anderson, 2 Wharton’s Criminal Law and Procedure § 415 (1957). Among cases cited as authority for this passage are Johnston v. Commonwealth, 85 Pa. 54 (1877), and Rolland v. Commonwealth, 82 Pa. 306 (1876). These were connected cases in which the defendants had been charged with burglary by breaking and entering. The defendants had called on the cashier of a banking house after hours, under the pretense of having business to discuss with him. After being admitted into the cashier’s office and talking with him for half an hour, the defendants violently assaulted the cashier with the purpose of silencing him so that they could rob the bank. The Supreme Court in both cases held that this entry gained by deception was a constructive breaking sufficient to satisfy the “breaking” requirement for burglary.

Although our burglary statute no longer requires a “breaking and entering,” the rationale of these old cases is equally applicable to the requirement of our new statute that an entry be unlicensed and unprivileged. The same question that is now before us was before the District Court of Appeal of Florida in Howard v. State, 400 So.2d 1329 (Fla.Dist.Ct.App.1981), in which the defendant had gained entry to the victim’s home by telling her his van had broken down and he needed to use her telephone. The court stated:

Entering a structure with consent is normally a defense to a burglary charge. § 810.02, Fla.Stat. (1979); McEver v. State, 352 So.2d 1213 (Fla. 2d DCA 1977), cert. denied, 364 So.2d 888 (Fla.1978). However, it is clear that entrance gained by trick or fraud will support a conviction for burglary. Pedone v. State, 341 So.2d 532 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 516 (Fla.1978); 13 Am.Jur.2d Burglary § 13. This is because consent to enter obtained in such a manner is actually no consent at all and, therefore, the entrance is unauthorized. State v. Ortiz, 92 N.M. 166, 584 P.2d 1306 (1978).
We hold that the misrepresentations made by the defendant in this case rise to the level of trick or fraud and nullify the consent to enter obtained from his victim.

We adopt this rationale in holding that appellant’s posing as a meter reader vitiated any consent he had to enter Ms. Brooks’s home, and that he was therefore unlicensed and unprivileged to enter as required by the burglary statute. Consequently, there was no prejudicial error in the court’s jury charge.

Appellant’s final contention is that the verdict was against the weight of the evidence in that Ms. Brooks’s identification of appellant at the preliminary and suppression hearings was doubtful.

The decision to grant or deny a motion for a new trial on the ground that the verdict is against the weight of the evidence is committed to the sound discretion of the trial court. Absent an abuse of discretion its denial of such a motion will not be disturbed. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972).

Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). The credibility of witnesses is a matter to be determined by the trier of fact. Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Smith, 274 Pa.Super. 280, 418 A.2d 406 (1980). The jury in this case had an ample opportunity to see Ms. Brooks under direct questioning and heavy cross-examination which brought out her doubtful identification of appellant at the prior hearings. The jury chose to believe Ms. Brooks’s identification of appellant as the intruder in her home. Under the circumstances, the trial judge cannot be held to have abused his discretion in not granting a new trial based on Ms. Brooks’s prior inconsistencies.

For these reasons, the judgment of sentence is affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

The judgment of sentence should be reversed and the case remanded for new trial. The trial judge instructed the jury as follows:

In speaking about the testimony of the defendant, I want to bring your attention to a specific point.
You will recall that Mr. Hayes testified that he had been a user of narcotics.
In weighing the testimony of any person, as I said, you may, of course, consider all of the factors, the whole case, in deciding whether you want to believe or disbelieve a person.
If you wish, you may consider that factor, if you believe it is appropriate.
However, the fact that Mr. Hayes indicated that he was a user of narcotics may not be considered as evidence of his guilt in this case.
In other words, the fact that a person is a drug user does not prove that he committed another burglary or another robbery.
As I say, it is a fact you can consider, just the whole picture, in deciding how much you want to believe a person, but the use of narcotics is not evidence of guilt in this case.
N.T. 30.

The prosecutor could not have made this statement, as part of his closing argument. Therefore, neither should the trial judge have made the statement.

-1-

The general rule is that evidence of prior criminal conduct is inadmissible to impeach a defendant who testifies in his own defense. See McCormick on Evidence § 191 (2d ed. 1972). There are two exceptions to the rule. First, evidence that the defendant has been convicted of crimen falsi, i.e., an offense that indicates a propensity for dishonesty, is admissible to impeach the defendant, if he testifies in his own defense. Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Second, if the defendant places his character in issue by presenting evidence that a particular aspect of his character is good, evidence of prior criminal activity that serves to rebut that particular aspect of his character is admissible. Commonwealth v. Moore, 246 Pa.Super. 163, 369 A.2d 862 (1977); 42 Pa.C.S.A. § 5918(1) (1982). And see State v. Turcio, 178 Conn. 116, 422 A.2d 749 (1979) (Where character witness testifies to accused’s nonviolent disposition, prosecution may inquire whether witness has heard of accused’s involvement in violent incidents). Cf. United States v. Wooden, 420 F.2d 251 (D.C. Cir.1969) (Where traits in issue are honesty, peacefulness, and quietness, cross-examination as to inebriation improper); Albertson v. Commonwealth, 312 Ky. 68, 226 S.W.2d 523 (1950) (Where traits in issue are peacefulness and quietness, cross-examination as to illegal liquor sales improper); Kennedy v. State, 150 Tex.Cr.R. 215, 200 S.W.2d 400 (1947) (Where traits in issue are peacefulness, quietness, law-abidingness, and truthfulness, cross-examination as to illicit sexual relations improper). See generally McCormick on Evidence § 191 at 456 n. 73 (2d ed. 1972) (“[T]he inquiry must relate to crimes or misconduct relevant to the trait vouched for”).

Here, appellant testified in his own defense. However, that didn’t make the crimen falsi exception to the general rule available, for drug offenses are not crimen falsi. Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981). The question we must decide, therefore, is whether the character-in-issue exception to the general rule is available.

It is clear that the character-in-issue exception is not available. It would make no sense to say that by testifying to prior drug use, appellant offered “evidence tending to prove his own good character.” 42 Pa.C.S.A. § 5918 (1982) (emphasis added). The decision in Commonwealth v. Craft, 455 Pa. 616, 317 A.2d 213 (1974), is instructive. There the defendant testified that he had pleaded guilty to larceny and receiving stolen goods. The trial judge then admitted evidence of other convictions. The dissenting Justices, ROBERTS and NIX, JJ. would have held this error, but the majority believed that in the circumstances, the defendant’s testimony amounted to a claim of good character. Here, if appellant had testified, for example, that he had engaged in the use of drugs, but as a result of entering a therapy program, had cured his addiction, then I should agree that his testimony could be regarded as amounting to a claim of good character. Under Craft, evidence of prior criminal activity might then be admissible. But appellant gave no such testimony.

Even if appellant had given such testimony, or by other similar testimony had claimed good character, the prosecutor could not have argued that he should therefore be disbelieved. For as already discussed, when a defendant puts his character in issue, evidence of prior criminal activity is limited to evidence of activity that rebuts the particular aspect of the defendant’s character that has been put in issue. See Commonwealth v. Moore and other authorities cited supra. And evidence of prior drug use does not put in issue the witness’s character for truthfulness. Thus, in Commonwealth v. Duffy, 238 Pa.Super. 161, 174, 353 A.2d 50, 57 (1975), we rejected the defendant’s argument that he should have been permitted to impeach a Commonwealth witness by showing that the witness was a drug user:

Appellant first contends that the testimony of Joseph Bozzell, John Foley, and Bridget Duffy was improperly limited with respect to Beachem’s use of drugs. However, the questions that the trial court prohibited were questions regarding Beachem’s use of drugs in general; they were not related to any event as to which Beachem testified. Such questions were properly excluded. Commonwealth v. Dreibelbis, supra [217 Pa.Super. 257, 269 A.2d 387 (1970)].

The conclusion is therefore inescapable that the prosecutor could not have made the statement, as part of his closing argument, that the evidence of appellant’s prior drug use impeached appellant’s credibility, and that because of that evidence, appellant could be disbelieved.

The majority’s reliance on Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980), and Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978), is misplaced. These cases stand for two distinct propositions, neither of which is pertinent here.

The first proposition for which Hudson and Whack stand is that the jury may consider whether a witness’s admitted, or proved, use of drugs at the time of the incident in question impaired the witness’s ability to observe the incident. Thus in Hudson the defendant argued that “[the Commonwealth’s witness] Johnston’s physical condition after consuming drugs” made his testimony “ ‘patently unreliable.’ ” 489 Pa. at 628, 414 A.2d at 1385 (quoting Commonwealth v. Whack, 482 Pa. at 140, 393 A.2d at 419). Similarly, in Whack the defendant argued that the Commonwealth’s witness Newell’s testimony was incredible and “should be rejected” because he “was an admitted marijuana user, and ... his testimony was based upon an observation in a crowded bar approximately 30 feet from where the deceased was standing____” 482 Pa. at 141 n. 2, 393 A.2d at 419 n. 2. Of course this is good law, but it has no pertinence here, for no one argues that appellant’s ability to observe had been impaired by the use of drugs.

The second proposition for which Hudson and Whack stand is that evidence of drug use is not a sufficient basis for disregarding a witness’s testimony. Thus in Hudson the defendant argued that “[t]he testimony of [the Commonwealth’s witness] Hassett” was “ ‘patently unreliable’ ” because, among other reasons, Hassett was “an admitted drug addict” and had a prior criminal record. 489 Pa. at 629, 414 A.2d at 1386 (quoting Commonwealth v. Whack, 482 Pa. at 140, 393 A.2d at 419). The Supreme Court held that these were “matters of credibility properly left to the jury’s consideration.” Id. Of course this too is good law, but neither is it pertinent here. Appellant does not argue that any witness’s testimony should be disregarded on the basis of evidence of prior drug use by the witness. Moreover, both Hudson and Whack are consistent with Commonwealth v. Duffy, supra: if evidence of drug use is inadmissible to rebut evidence of veracity, as Duffy holds is the law, then such evidence cannot serve as a basis for disregarding a witness’s testimony.

-2-

I should think it self-evident that a trial judge may not do what a prosecutor may not do: the judge may not “out-prosecute” the prosecutor. Here, not only did the judge tell the jury that it could disbelieve appellant because of appellant’s prior drug use—something the prosecutor couldn’t have done—but he emphasized appellant’s prior drug use, singling it out as a matter deserving of special attention. Said the judge: “In speaking about the testimony of the defendant, I want to bring your attention to a specific point.” And then he went on to say that “in deciding whether [it] want[ed] to believe or disbelieve” appellant, the jury could consider that appellant had “testified that he had been a user of narcotics.” To be sure, the judge added that the jury did not have to consider appellant’s prior drug use in appraising his credibility (“you may consider that factor, if you believe it is appropriate”). But a judge does not escape error by telling a jury that it may follow him in error but it doesn’t have to. The judge also added that “the use of narcotics may not be considered as evidence of his [appellant’s] guilt in this case.” But no one had suggested that appellant’s prior use of narcotics was evidence of his guilt. The issue was whether it could be evidence of his truthfulness. In telling the jury that it could be, the judge misstated the law.

The judgment of sentence should be reversed, and the case remanded for new trial.

      . 18 Pa.C.S. § 3502.

      . The dissent suggests that Hudson and Whack are inapposite because the witnesses’ drug use in those cases may have directly impaired their powers of observation on the specific occasions about which they testified. This may have been the case in Whack, although the language of the opinion itself does not indicate that it was. However, in Hudson this plainly was not the case. The witness who was a drug user in Hudson testified to two occasions on which the defendant had made inculpatory statements. It is not suggested that the witness was actually under the influence of drugs on either occasion. The dissent misreads Hudson, for the holding at issue pertained to a witness named Hassett, who was an "admitted drug addict,” not to the witness named Johnston, who purportedly had been “drinking beer and smoking marijuana" on occasions when he heard inculpatory statements.

      . Appellant’s main contention on this appeal is that his going from the basement to the second floor of Ms. Brooks’ home did not constitute a burglarious entry as defined in the statute. In light of our determination that appellant was not licensed or privileged to enter in the first place, we need not deal separately with this contention.

      . The court also held that, even assuming that the defendants were licensed to remain where they were watching the broadcast, their subsequent intrusion onto the set constituted criminal trespass.

      . Appellant also challenges the verdict “for other stated reasons,” but since no other reasons are stated in his brief, we take this as a reference to appellant’s other arguments, which we have already rejected.


source: Caselaw Access Project

author: POPOVICH, Judge: JOHNSON, Judge,

license: Public Domain

text:
    460 A.2d 800
    THOMAS M. DURKIN & SONS, INC., a Pennsylvania Corporation v. NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY and H. Gilroy Damon and H. Gilroy Damon Associates, Inc. and Haag and D’Entremont. Appeal of NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1982.
    Filed April 29, 1983.
    Petition for Allowance of Appeal Granted Sept. 2, 1983.

      George W. Thompson, Upper Darby, for appellant.
    Dale A. Betty, Media, for Durkin, appellee.
    Peter A. Dunn, Media, for Gilroy, appellee.
    Bruce D. Lombardo, Philadelphia, for Haag and D’Entremont, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

Thomas M. Durkin & Sons, Inc., appellee, brought an action in assumpsit against the Nether Providence Township School Authority, appellant, seeking compensation for extra work required for site development in the construction of a high school. Appellant joined as additional defendants H. Gilroy Damon and H. Gilroy Damon Associates, Inc., (Damon), the engineering firm which had surveyed the site. Damon, in turn, joined Haag and D’Entremont, (Haag), the architectural firm that originally prepared the job site plans, as an additional defendant. A jury trial was held in May, 1979, and appellant moved for a compulsory non-suit at the end of appellee’s case. The motion was refused and appellant rested without presenting any testimony to rebut appellee’s claim. At this time, Damon withdrew its claim against Haag, and Damon and Haag moved for compulsory non-suits which were granted. The jury awarded appellee $32,856.10. Appellant subsequently filed post-trial motions seeking a new trial, judgment n.o.v., or the removal of the non-suits granted the additional defendants. On October 1, 1979, the trial court denied all three post-trial motions, and appellant took an appeal to this court. On October 16, 1981, the appeal was quashed because the order denying appellant’s post-trial motions had not been reduced to judgment and docketed. See Thomas M. Durkin, etc. v. Nether Providence, etc., 291 Pa.Super. 402, 435 A.2d 1288 (1981). The procedural defect having been promptly cured, we now reach the merits of this appeal.

Appellant contends that, by the terms of the contract, orders for additional work cannot be made without written approval by the board. Appellant maintains further that this requirement was not met and could not be waived. Moreover, appellant asserts that the contract required appellee to inspect the site prior to bidding and that appellee’s failure to do so forecloses any chance of recovery. Alternatively, appellant argues that where appellee has proved that extra work was necessary, the trial court should not have entered non-suits in favor of the additional defendants.

We find that appellant’s arguments lack merit and, accordingly, affirm the judgment entered.

In considering a request for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, must be considered in the light most favorable to the verdict winner. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). The court must find and consider only that evidence which supports the verdict, and all conflicts must be resolved in favor of the prevailing party. Moyer v. Ford Motor Co., 205 Pa.Super. 384, 209 A.2d 43 (1965). See Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. 641, 643-4, 359 A.2d 440, 441 (1976).

Viewed in this manner, the evidence showed that in June, 1968, shortly after appellee was awarded a contract by appellant, appellee discovered certain discrepancies between topographical contour lines depicted on the site plans and the actual topographical conditions existing at the job site. Appellee also discovered that the job site plans did not accurately reflect the need to clear an additional % of an acre of ground located on the job site. A dispute developed as to whether appellee would be required under the contract to provide the extra work necessary to clear the above referenced % of an acre and also to raise or lower the ground level in order to complete the job in conformity with ground contours shown on the job site plans.

Appellant, under separate contract, retained the services of a consulting firm known as Wigton-Abbot to manage the performance of the contract by various sub-contractors including appellee. Appellee’s claim for additional compensation was submitted to Wigton-Abbot in late June of 1968 for resolution. The record revealed that Wigton-Abbot investigated appellee’s claim by directing the survey engineering firm, Damon, to reexamine the topographical surveys which it had prepared under separate contract with appellant during the initial preparation of job site plans. The job site plans were originally prepared by the architectural firm, Haag, which had utilized topographical surveys performed by Damon in the design of the job site plans.

After Damon completed a reevaluation of its topographical surveys, adjustments were made in the contour lines shown on the job site plans in order to provide additional soil so that appellee could raise the contour of the ground to satisfactory levels while utilizing materials available on the job site.

The contract provided that the contractor should make an examination of the work site and that the contractor would be responsible for determining the true amount of cut and fill and for supplying all the earth fill that may be required. Therefore, even though the contract incorrectly estimated that the cut and fill on the combined east and west tracts were approximately equal, appellant consistently maintained that the discrepancies in the plans did not give rise to extra work outside the contract.

Appellee sent a letter notifying appellant that it refused to proceed until the dispute over the contested items was resolved. This prompted a letter from the school board dated April 29, 1969, which instructed appellee to proceed with the site work and that the disagreement with respect to certain facts could only be resolved later. Appellee then completed the work in a good and workmanlike manner but did so under threat of default. After the work was completed, a job meeting was held to resolve claims for extra work submitted by appellee. The meeting was conducted by Vernon Pharis, construction manager for Wigton-Abbot, and attended by two representatives of the school authority, Mr. Hill and Mr. Ruza, and a representative of the architect. At this meeting, authorization was given to the architect to prepare five written change orders covering the work claimed by appellee. These change orders were signed by the architect, forwarded to appellee, and then forwarded to appellant for final payment. Appellee received payment on only one of the change orders in the amount of $350.00, the cost of removing a large tree from the job site.

Appellant argues that appellee never claimed that the change orders constituted written approval under the contract. The record belies such an argument. Appellant points to the statement made by appellee’s attorney to the trial judge concerning the change orders: “That is right. They were never approved by the board. And that is why we are here.” (N.T. p. 127). This comment was made during a conference in the retiring room away from the hearing of the jury. Although this statement can support appellant’s theory that the change orders were not written authorizations, it can just as easily be interpreted as a recitation of case history. That is, had appellant honored and paid the change orders it authorized, the litigation would not have arisen. Further, appellant argues that the following comment by the trial judge during his charge to the jury proves that the change orders could not be considered written authority: “The plaintiff has argued that, yes, he got authorization in various ways, that representatives of the defendant were at their meetings, knew what the claims were, and they approved the claims although there were no written authorizations.” (N.T. p. 180). This excerpt from the record was made during an explanation to the jury of the argument appellant was making. Namely, that the change orders were of no effect whatsoever until approved by the board. The preface, “The plaintiff has argued ...,” clearly shows that the trial judge was merely recalling for the jurors the thrust of appellant’s argument.

When the change orders were offered into evidence, the following took place:

“MR. BETTY: These are just the change orders for each of the items in contention here that were signed by Durkin and where the prices have been agreed to by counsel. That would be P-1, 2, 3, 4 and 5.
THE COURT: Well, they are change orders. They were signed by the architect, and they were signed by the contractor. Now whether they are valid change orders is another issue.
MR. BETTY: That is another issue. We understand.” (N.T. p. 103).

We agree with the trial judge that,

“The initial issue for the jury to decide was whether the execution of these five change orders was binding upon defendant (appellant). This issue was discussed on the record in the presence of all counsel as being a factual issue which must be decided by the jury. Defendant did not indicate any objection to the submission of this issue.” (Lower Court Opinion at 5).

Appellant’s next assertion is that appellee failed to prove that the extra work claimed received the written approval of the board as required by the contract. The relevant language in the contract reads as follows:

“GENERAL CONDITIONS
‘2. Definitions:
“Approval or approved”—shall mean written approval of the Authority and the architect or their authorized representative.’
‘16. Changes and Alterations:
A. No change in the contract shall be made without the written approval of the Board. A request for any change must be in writing.’ ” (Emphasis added)

Appellant relies on Morgan v. Johnstown, 306 Pa. 456, 160 A. 696 (1931), where the City of Johnstown was sued by a contractor for extra work caused by a change in the line of a sewer being installed by the plaintiff. Under the contract, written orders of the City Engineer were required for extra work. Plaintiff, relying on oral declarations of city officials, performed the additional work without obtaining the required written order from the City Engineer. The Supreme Court held that contracts with municipalities must be strictly pursued, and that since there was nothing in writing concerning the additional work claimed by the contractor and no evidence of any formal action by the City Council suggesting a waiver of the contract requirement for written change orders, the municipality should have prevailed.

Appellant also relies on a more recent case applying the same principles, Scott Township School District Authority v. Branna Construction Corp., 409 Pa. 136, 185 A.2d 320 (1962). In Branna, the contractor sued on a claim for extra work in the construction of a school. The claim was based on an oral change order while the contract provided that changes would be binding only when in writing. No formal work orders were executed by the architect or by appellee and no changes were made in the plans or specifications. Recovery was denied under the holding in Morgan v. Johnstown, supra:.

“Where a public contract states the procedures in regard to work changes and extras, claims for extras will not be allowed unless these provisions have been strictly followed.” (Citations omitted) Branna, supra, 409 Pa. at 140, 185 A.2d at 322. See also, Emporium Area Joint School Authority v. Anundson Construction & Building Supply, Co., 191 Pa.Super. 372, 156 A.2d 554 (1959), rev’d on other grounds, 402 Pa. 81, 166 A.2d 269 (1960).

“In considering the pertinent clauses of the contract, we are governed by the ' * * * rule of universal application that in construing a contract each and every part of it must be taken into consideration and given effect if possible, and that the intention of the parties must be ascertained from the entire instrument.’ ” Acchione v. City of Philadelphia, 394 Pa. 622, 149 A.2d 125, 127 (1959) and cases cited therein. A reading of the contract provisions in pari materia necessitates defining the word “approval” in the contract requirement of “written approval by the Board.” This definition indicates that change orders are valid if they have the written approval of the authority and the architect or their authorized representative. Although the Authority asserts that the signature of one of its members is necessary for a change order to be valid, such an interpretation is not absolutely required by the contract.

But, the function of contract interpretation and construction is a question of law for the court to decide. National Products Co., Inc. v. Atlas Financial Corp., 238 Pa.Super. 152, 364 A.2d 730, 733 (1975). Here, the question of whether the written change orders were binding under the contract obviously went to the jury. Although it is possible to construe the contract definition of approval as allowing the authority and the architect to authorize either one of them to be “their authorized representative,” such a construction of the contract is tenuous at best, and violates the plain meaning of the provision. Strictly construing these provisions as required by Morgan, we find that the signed change orders could not satisfy the written approval requirement of the contract.

However, such a finding is not necessarily dispositive of this appeal. As stated previously, in considering a request for judgment n.o.v., this Court must find and consider only that evidence which supports the verdict, and all conflicts must be resolved in favor of appellee as verdict winner. Moyer v. Ford Motor Company, supra. Thus, if sufficient evidence was presented for the jury to find a waiver of the strict written authorization requirement of the contract, inadequacies in the execution of the written change orders are irrelevant.

The trial court held that appellant had waived the requirement of a written authorization. In support of this finding, the court relied on Wagner v. Graziano, 390 Pa. 445, 136 A.2d 82 (1957), where the Supreme Court held that an agent of the owner can, orally, legally covenant to waive a specific contractual requirement of written approval of all agreements modifying a contract. Although Wagner appears not to have been followed in cases involving public contracts, we believe that a governmental unit can waive a written authorization requirement for extra work when the waiver is made in writing. Such a holding does not conflict with Morgan and its progeny, which dealt only with parole modification. In Morgan, the Supreme Court stated:

“All that is claimed as the basis for a waiver is that the individual members of counsel knew what was being done and approved it, and that the city acquiesced in this performance by accepting and paying for work which the only authorization or certification was in oral form.” Morgan v. Johnstown, supra 306 Pa. at 464, 160 A. at 698.

Indeed, the Court’s holding rested in substantial part on the absence of any evidence to show a formal waiver by the city authorities. Id. 306 Pa. at 465, 160 A. at 699. In this case, appellee performed the alleged extra work under protest after receiving a letter from the assistant secretary of the authority, written at the request of the president of the authority.

The Supreme Court in Morgan also stated, “If the plaintiff was not willing to proceed under the contract, he should have refused to go on with the work until he obtained the proper written authority of the engineer.” Morgan, supra 306 Pa. at 465, 160 A. at 699. Here, appellee halted work on the project and notified appellant that it could not proceed until the contested items were resolved. Although the authority did state in its reply letter that “certain essential facts can only be resolved in the course of time,” they now assert that appellee cannot recover because they never issued written approval for the extras. In a case involving a similar dispute, Massiah v. Hood, 138 Pa.Super. 90, 10 A.2d 79 (1939), defendants were the general contractors for the erection of a high school. Plaintiff was a sub-contractor hired to do the cement and concrete work. Plaintiff sued to recover the cost of supplying extra materials which he contended were outside of the contract. Defendants argued that they advised plaintiff at the time of construction that they were not going to pay for the disputed extra materials. This Court found that letters offered in evidence between plaintiff and defendants clearly indicated that the defendants refused to pay the plaintiff for the contested item because they insisted he was bound to supply such by the contract. The Court stated:

“Had appellee, because of interpretation of the plans and specifications by defendants that the wooden forms in controversy were embraced in the contract, refused to proceed with the work, he would have laid himself open to an action of damages for breach of contract if appellants’ interpretations were sustained.
The appellants cannot avoid liability for the payment of this extra work where they compelled appellee to perform the same under the theory that it was part of the original contract: Jackson et al. v. McKeesport, Appellant, 305 Pa. 198, 157 A. 472; approved in Mannella v. City of Pittsburgh, Appellant, 334 Pa. 396, 402, 6 A.2d 70.
Where there is uncertainty as to what specifications are covered by a written contract, it may be explained by parol evidence and then becomes a question for the jury: Kendig v. Roberts, 187 Pa. 339, 40 A. 1022.” Id. 138 Pa.Super. at 95-96, 10 A.2d at 82.

In his charge to the jury, the trial judge instructed: “So the plaintiff must show that this was outside of the scope of the contract, that he was authorized to do the work, or that there was a waiver of the written authorization in order to recover.” (N.T. p. 181). Morgan, Branna and Anundson, which held that contract provisions requiring written orders for change cannot be orally waived, are clearly distinguishable from the instant case. The policy underlying those decisions, that contractors should be held to specifications in order to protect the public from inflated cost overruns, is not in danger when the governmental body chooses to waive, in writing, a contractual provision.

The uncontroverted testimony of the construction manager hired by appellant was that the contested work was extra work outside of the original contract. (N.T. p. 27). We hold that the evidence introduced at trial clearly supports the jury’s verdict. Consequently, we find that the trial judge did not err in denying appellant’s motion for a judgment n.o.v.

Appellant argues that a new trial should be awarded because non-suits should not have been granted to the additional defendants. This argument is clearly without merit. That expert testimony is necessary to establish negligent practice in a profession has long been the rule in Pennsylvania. Bierstein v. Whitman, 360 Pa. 537, 62 A.2d 843 (1949). In this case, appellee proceeded against appellant solely on a contract theory. Although testimony was taken as to discrepancies in the topographical data and the site drawings, the witnesses, Mr. Pharis and Mr. Durkin, were never held out to be experts qualified to testify that either of the additional defendants had breached the appropriate standard of care within the industry for construction contract design by a professional. It is settled: “Whether the witnesses’ knowledge or experience justifies admitting his testimony for the consideration of the jury is a matter within the discretion of the trial judge----” (Citations omitted) Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724, 728 (1974). Here, the trial judge stated in his opinion, with which we are in substantial agreement, that “None of the testimony presented by plaintiff can be reasonably construed to contain an opinion that would support or tend to prove a cause of action against the design professional for malpractice.” Lower Court Opinion at 9. We find no error in the entering of non-suits in favor of the additional defendants. For the above stated reasons, we affirm the order of the lower court.

Affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I respectfully dissent. The majority determines that a governmental unit can waive a written authorization requirement for extra work when the waiver is made in writing. The majority appears to base its determination on a finding that a letter dated April 29, 1969, sent by the assistant secretary of the school authority to Appellee Thomas M. Durkin suffices to prove such waiver.

The law is clear that where a public contract states the procedure in regard to work changes and extras, claims for extras will not be allowed unless these provisions have been strictly followed. Scott Township School District Authority v. Branna Construction Corp., 409 Pa. 136, 185 A.2d 320 (1962). I agree with the majority that Branna is not necessarily dispositive of the instant case because Branna involved oral modifications. However, it has also been held that a contract by a school board cannot be enlarged, diminished, supplemented or in any manner changed by evidence extraneous from the minutes, or by actions or declarations of officials of the school district. Matevish v. School District of Borough of Ramey, 167 Pa.Super. 313, 74 A.2d 797 (1950).

In Emporium Area Joint School Authority v. Anundson Construction and Building Supply Company, 191 Pa.Super. 372, 156 A.2d 554 (1959), rev’d on other gds., 402 Pa. 81, 166 A.2d 269 (1960), the contract between the authority and the contractor contained a provision regarding authorization for extra work similar to the provision in the instant case. The architect in that case gave the contractor change orders orally and allegedly threatened dire consequences if the contractor did not comply. The members of the authority were aware that changes were being made without the issuance of proper orders. The court determined that this evidence did not amount to a waiver of strict compliance with the terms of the contract. The court also stated that the contractor’s alternative was to simply refuse to perform the extra work until proper written authority was obtained.

Likewise, in Dick Corporation v. State Public School Building Authority, 27 Pa.Commw. 498, 500-01, 365 A.2d 663, 664-5 (1976) the court stated:

It is a well-established rule of law that where, by the terms of a contract with a governmental body, written orders for additional work are required, the contractor cannot recover for extra work without compliance with the contractual provisions. Montgomery v. Philadelphia, 391 Pa. 607, 139 A.2d 347 (1958); Burke v. Allegheny County, 336 Pa. 411, 9 A.2d 396 (1939); Morgan v. Johnstown, 306 Pa. 456, 160 A. 696 (1931). And we have so held. Security Painting Co. v. Commonwealth, 24 Pa.Cmwlth. 507, 357 A.2d 251 (1976); see [Department of Transportation v.] Acchioni and Canuso, supra, 14 Pa.Cmwlth. [596] at 599, 324 A.2d [828] at 830. The basic rationale behind this rule is that such provisions prevent fraudulent and exhórbitant claims for compensation for extra work and additional costs. 65 Am.Jur.2d, Public Works and Contracts, § 190.
We believe that where, as here, written authorization from the contracting governmental authority is required before the contractor can recover for additional work performed, the contractor is not required to perform such work absent the required authorization. Strict adherence to the contract provision involved here must apply equally to both parties. The contractor, by refusing to perform, took the only logical action available to him and he is entitled to recover any damages suffered by him as a result of the Authority’s delay in providing the written authorization, (footnote omitted)

Therefore, Appellee clearly maintained the right to withhold performance of the extra work in the instant case until proper authorization was forthcoming.

Finally, I disagree that the April 29, 1969 letter constituted written waiver of the contract provisions regarding extra work in and of itself. That letter states:

Dear Mr. Durkin:
Dr. Charles R. Whittlesey, President of the Nether Providence Township School Authority, has requested that I acknowledge your letter dated April 25, 1969, concerning the site contract for the Nether Providence High School.
Please be assured that we are [sic] interested as you are in reaching a settlement that is just and equitable. It is clear that disagreement exists with respect to certain essential facts which can only be resolved in the course of time. Meanwhile, we are requesting you to proceed with the site work as you have done in the past so that there will be no delay in the progress of the building construction.
We are anxious to cooperate fully and look forward to a satisfactory settlement of this matter.
Very truly yours,
/s/ Frederick E. Welte
Assistant Secretary

In my opinion, the letter does not explicitly or implicitly waive the contractual requirements for authorization of extra work in the instant case. I therefore can find no written waiver of the provisions of the contract and would hold that, for the reasons set forth supra, the instant case should be reversed.

      . The verdict was reduced to judgment on October 21, 1981, and notice of appeal to this court was filed on the same date.


author: MONTGOMERY, Judge:

text:
    460 A.2d 808
    Raymond E. OSTRONIC and Carol Ostronic, Individually and as Administrators of the Estate of Walter Ostronic, Deceased, and Litman Litman Harris & Specter, P.A., Appellants, v. INSURANCE COMPANY OF NORTH AMERICA.
    Superior Court of Pennsylvania.
    Argued June 17, 1982.
    Filed May 6, 1983.
    Petition for Allowance of Appeal Denied Nov. 9, 1983.

      Richard James Schubert, Pittsburgh, for appellants.
    Stephen R. Mlinac, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal involves another dispute concerning the proper construction of provisions of the Pennsylvania No-fault Motor Vehicle Insurance Act. Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009.101 et seq. The Plaintiff-Appellants instituted their action as individual “survivors” of the deceased Walter Ostronic, and also as administrators of his estate, seeking to recover benefits which were purportedly due from the Defendant-Appellee Insurance Company of North America. The lower court granted a defense motion for summary judgment, ruling that the No-fault Act permitted the Defendant insurer to set off or recover any benefits claimed in this action by the Appellants, leaving no genuine issue of material fact to be determined at trial.

The pertinent facts underlying this dispute are not in dispute. Walter Ostronic died on September 5, 1979, as the result of injuries he suffered in an automobile accident. At the time of the accident, the decedent was the owner, operator, and sole occupant of the only vehicle involved in the collision. No insurance policy was in existence covering the victim and his car at the time of the accident. When a claim for benefits was filed, it was assigned to the Appellee under the assigned claim provisions of the No-fault Act. The Appellants sought to recover so-called “basic loss benefits”, which are defined in Section 103 (40 P.S. § 1009.103) as follows:

“ ‘Basic loss benefits’ means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act. Basic loss benefits do not include benefits for damage to property. Nor do basic loss benefits include benefits for net loss sustained by an operator or passenger of a motorcycle.”

The Appellee refused to pay the basic loss benefits sought by the Appellants, and the instant action was thereafter filed by them in the lower court, seeking to compel the payments.

The Appellee l as maintained in the lower court, and again on this appeal, that the Appellants may not recover the claimed basic loss benefits because they are merely representing the decedent’s estate, from which the Appellee is entitled, in turn, to recover any benefits paid. In this regard, the insurer relies upon Section 501 of the Act (40 P.S. § 1009.501) which in relevant part, states:

“The obligor obligated to pay basic loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate.”

The lower court accepted this reasoning. It held that the decedent’s estate should not obtain basic loss benefits which it was in due course obligated to return to the obligor insurer under Section 501. The lower court noted that the insurer enjoyed an absolute right to recover back from an uninsured motorist any sums paid to the “insured” party. The court reasoned that since the uninsured owner remains ultimately liable to reimburse the obligor where third parties are involved, his estate should not benefit where the uninsured decedent’s death triggers the claim for the benefits in issue. The court determined that the legislature did not intend that the estate be paid benefits when it immediately became obligated to pay the benefits back to the assigned claim insurer.

The Appellants offer several contentions in support of this appeal. First they contend that the lower court failed to recognize the dichotomy in their claims, and to thereby distinguish between those offered by them as administrators of the decedent’s estate on one hand, and those they asserted as “survivors ” on the other hand. Thus, they argue that the lower court erred when it dismissed their survivor claims based upon its conclusion that the estate’s claims could be a setoff for the insurer, creating no basis for a trial in this case. Further, the Appellants maintain that the lower court’s ruling as to the insurer’s purported right of setoff against the estate is clearly erroneous in light of Section 106(e) of the Act (40 P.S. § 1009.106(e)), which states: “Except as otherwise provided in this act, basic loss benefits shall be paid without deduction or set-off.” The Appellants offer other arguments which will be discussed later in this Opinion.

We find merit in the Appellants’ arguments that the lower court erred in dismissing all of their claims, including those they say they asserted as survivors, rather than as representatives of the decedent’s estate. Prior to our review and discussion of the specific aspects of the record which lead us to this conclusion, we deem it appropriate to discuss some important legal concepts which must guide us in our deliberations in this case.

First, we must be mindful that under the No-fault Act, it is clear that survivors of a deceased victim have rights independent of the victim’s estate. Our Supreme Court addressed this issue and discussed it in detail in Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). It was recently again explained in Judge Van der Voort’s lead Opinion in Smiley v. Ohio Casualty Insurance Co., 309 Pa.Super. 247, 455 A.2d 142 (1983),1 ** which cites Heffner and numerous other cases, as support for its explanation of the difference between the claims of the estate and those of the decedent’s survivors:

“A work loss benefit is not a form of survivor’s benefit, but is in the nature of reimbursement to the estate of the deceased for income he or she would probably have earned but for the accident. 40 P.S. § 1009.103.”
“Survivor’s benefits, by way of distinction, are what a survivor might reasonably have expected to receive from the victim in money or services, had the victim not sustained the fatal injury. 40 P.S. § 1009.103.”
“Each is a separate type of benefit, the work loss benefit intended to reimburse the estate of the victim for lost earnings, and survivor’s benefits to reimburse surviving family members for what they would have received had the victim lived. Both may be claimed in a single action. A work loss claim is comparable to a wrongful death action.” (Slip Opinion, p. 5)

Second, in our analysis of this appeal, we must not forget the rules which apply in our review of a lower court order which granted a summary judgment pursuant to Pa.R.C.P. 1035. These axioms were thoroughly discussed by our Court in Schacter v. Albert, 212 Pa.Super. 58, 61-2, 239 A.2d 841, 843 (1968), where we stated:

“On motion for summary judgment the Court must consider the entire setting of the case and all the papers that are included in the record... One who moves for summary judgment has the burden of demonstrating clearly that there is no genuine issue as to any material fact... The Court must consider both the record actually presented and the record potentially possible at the time of trial... A hearing on a motion for summary judgment is not a trial on the merits, and the Court on such motion should not attempt to resolve conflicting contentions of fact... The court is to accept as true all well pleaded facts in the plaintiff’s pleadings, as well as the admissions on file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom... The record must be examined in the light most favorable to the non-moving party____ In passing upon a motion for summary judgment it is no part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.... A party should not be deprived of an adequate opportunity to fully develop (sic) his case by witnesses and a trial, when the issues involved make such procedure the appropriate one____ It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts... Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment.” (citations omitted)

Thus, it is evident that summary judgment should be granted only in the clearest of cases.

With these concepts in mind, we shall review the record to determine the validity of the Appellants’ arguments that they asserted individual “survivor" claims in addition to claims on behalf of the estate. The caption of the Complaint identifies the Appellants as individuals as well as administrators of Walter Ostronic’s estate. In the body of the Complaint, we find the following allegations, which arguably set forth individual “survivor” claims on the part of Plaintiff Carol Ostronic, in addition to those set forth on behalf of the estate:

“10. As a result of the accident, the Estate of Plaintiffs’ Decedent has suffered a severe loss, and survivor Plaintiff Carol Ostronic in particular, as she was dependent upon the Decedent for support, such loss as defined in ‘survivor’s loss ’ under the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. 1009.13.” (emphasis added)

We must also consider the responsive pleadings. The Defendant’s Answer provided:

“2. In regard to the averments contained in Paragraphs 6 through 10 of the Plaintiffs’ Complaint, this Defendant, after reasonable investigation, is without sufficient information to ascertain the truth or falsity of all averments contained therein and, consequently, all such averments are denied and strict proof thereof is demanded at the time of trial.”
“4. In regard to the averments contained in Paragraph 13 of the Plaintiffs’ Complaint, it is admitted that Defendant has not tendered any benefits to the estate of Plaintiffs’ decedent. However, it is denied that any such benefits are due and owing to Plaintiffs and it is further denied that this conduct on the part of the Defendant is in violation of the aforesaid No-Fault Act; to the contrary, Plaintiffs have never demonstrated the dependency of Plaintiff Carol Ostronic upon the decedent for support. Furthermore, it is the information and belief of this Defendant that Plaintiffs’ decedent was uninsured at all times material hereto and, consequently, in contravention of § 1009.104 of the aforesaid No-Fault Act.” (emphasis added)

These responses indicate a knowledge on the part of the Defendant that it would be responding to individual claims of the Plaintiff Carol Ostronic in that she allegedly relied upon the decedent for support. Further we note that the Defendant also pleaded New Matter, which included the following assertions:

“8. Pursuant to the aforesaid No-Fault Act, specifically § 1009.108(a)(3) thereof, all benefits and advantages that accrued to Plaintiffs or Plaintiffs’ decedent as a result of the decedent’s death shall be subtracted from their loss in calculating the net loss payable pursuant to the Assigned Claims Plan. Consequently, all or part of Plaintiffs’ claims are barred by the terms of the above cited section of the aforesaid No-Fault Act. (emphasis added)
“9. Relative to the “Survivor’s Loss” benefit being claimed by Plaintiffs, no reasonable proof of the dependency of Plaintiff Carol Ostronic upon decedent for support has ever been submitted.” (emphasis added)

These additional declarations lend weight to the proposition that individual “survivor” claims by Carol Ostronic based upon grounds of dependency were in issue in the case.

The record before the lower court also includes a transcript of testimony resulting from a deposition of Ms. Ostronic, taken on April 13, 1981. In the course of that deposition, she testified that she had been financially dependent upon the decedent, her son, prior to his death. She related that he contributed each month to the family’s rent, food and utility bills.

Since the time of the 1981 hearing in the lower court in the instant case, this Court has held that dependency is not a requirement for the recovery of survivor’s benefits if the claimant was a parent of the deceased. See Chesler v. Government Employees Insurance Company, 302 Pa.Super. 356, 448 A.2d 1080 (1982). Thus, it should be clear that while we find Carol Ostronic’s testimony as to her alleged financial dependency on her deceased son to be significant in supporting the conclusion that she raised individual survivor claims in this case, the holding in Chesler, supra, would appear to make the question of actual dependency inconsequential in resolving the issue of her actual entitlement to survivor’s benefits.

While it is clear that the Appellants’ Complaint could have been more carefully drafted to clearly enunciate a separate “survivor” claim on behalf of Ms. Ostronic, we are compelled to the conclusion that the record as. a whole raises inferences of the existence of such a claim sufficient to preclude the granting of a defense motion for summary judgment. The lower court’s opinion in support of its grant of summary judgment does not address this issue, but instead discusses the Plaintiffs’ case as if it only included claims by the estate. Because we find that separate claims by Plaintiff Carol Ostronic were arguably raised in the case, it is necessary that we vacate the summary judgment and remand for further proceedings in the lower court, at least as to those claims.

We must next examine the claim that the estate is entitled to receive basic loss benefits. In our review of this problem, we are aware that the Act contains two different provisions which appear to suggest directly contrary answers to the question of whether the assigned risk obligor can withhold basic loss benefit payments theoretically due to be paid to the estate of the uninsured owner whose conduct caused the covered losses. The Appellants, of course, point out that the Appellee seeks a “setoff” and direct our attention to Section 106(e), which, as discussed earlier, provides that: “Except as otherwise provided in this act, basic loss benefits shall be paid without deduction or setoff.” The Appellee in turn points out Section 501, also highlighted earlier in this Opinion, which provides that the obligor shall be entitled to recover “____ all the benefits paid and appropriate loss or adjustment costs incurred from the [uninsured] owner or registrant of such motor vehicle or from his estate.”

It is clear that while the assigned risk insurer is obligated to pay basic loss benefits to a living uninsured owner-occupant of a vehicle, the insurer can thereafter file an action pursuant to Section 501 to recover from the same individual the specific benefits paid to him. See Harleysville Mutual Insurance Company v. Schuck, 302 Pa.Super. 534, 449 A.2d 45 (1982). However, when we examine both Section 501 and Section 106(e), it appears to us that when the legislature drafted these two sections it did not intend that the assigned risk obligor would have to pay a benefit to the estate of an uninsured deceased owner-driver, from which estate the obligor would then immediately have a claim for recoupment of all such benefits paid. Section 106(e) simply was not designed to have application in these particular circumstances. Any other construction would create other problems which the legislature could not have desired. One obvious problem would be the practical ability of the insurer to obtain full reimbursement from the estate of an uninsured driver when there are other claims against that estate by other creditors and the size of the estate, including any No-fault benefits received, is exceeded in amount by the various claims. Further, the insurer’s chances of recovery would possibly be adversely affected by the preference accorded such a claim under the Probate, Estates and Fiduciaries Code (Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 P.S. § 3392). In addition to these potential problems, we believe that if the Appellants’ position was held to be proper and it was established that an estate could recover basic loss benefits in these circumstances, it would actually work to discourage drivers from purchasing automobile insurance coverage. This would result because it would be recognized that the benefits of insurance protection might be available to supplement one’s estate, without a countervailing obligation to pay insurance premiums. Only the responsible drivers who purchased insurance would suffer in such circumstances, as their insurance rates would no doubt increase as the insurers’ costs increased. It is evident that the Appellants urge a position which would enable the estates of irresponsible vehicle owners to profit through wrongdoing by the decedent. This result could never have been intended by our legislators in the passage of the No-fault Act.

The situation of a deceased uninsured owner is obviously different from that of a living one with regard to the question of whether an initial payment of benefits should be made by the assigned risk insurer. In Harleysville Mutual Insurance Co. v. Schuck, supra, the reasons for requiring payment to a living victim are clearly explained:

“The rationale for requiring an insurer to pay an occupant’s claim for basic loss benefits before ultimate liability has been determined seems clear. Compensating an injured victim of a vehicular accident is a paramount purpose of the legislatively adopted no-fault scheme. Thus, an injured victim, even if he or she is an uninsured owner, can receive ‘prompt and comprehensive professional treatment’ and thus be rehabilitated and returned as a productive member of society as quickly as possible. See Section 102(a)(9) of the No-fault Act, 40 P.S. § 1009.-102(a)(9). Only after this purpose has been accomplished does the statute permit a determination of ultimate liability.” 302 Pa.Super. at 538-39, 449 A.2d at 447.

In the situation of a deceased victim, the justification of speeding treatment and rehabilitation simply does not apply. We can perceive no other legislative intent in the Act to support a rule requiring payment to an uninsured deceased owner’s estate in such a case, with undeserved enrichment for the estate and unrecoverable losses by the assigned risk insurer being the probable results in such circumstances. Therefore, we conclude that the lower court was correct in finding that the Appellee had no obligation to provide the No-fault benefits claimed by the estate in this action, and we hold that the granting of summary judgment as to such claims was correct.

The judgment of the lower court is vacated in part, solely as to the possible individual survivor claims asserted by the Appellant Carol Ostronic, and such matters are remanded to the lower court for further proceedings. As to the claims of the estate, the judgment of the lower court is hereby affirmed. Jurisdiction is not retained.

      . Pennsylvania Rule of Civil Procedure 1035, which governs summary judgments, provides that a court, upon application therefor by a party, may grant summary judgment on the pleadings, any depositions, answers to interrogatories, admissions on file and/or supporting affidavits, only if it is shown that: "... there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

      . See Section 108 of the No-fault Act, 40 P.S. § 1009.108.

      . The Appellee insurer is clearly the "obligor”, as that term is used in the Act. See Section 103 (40 P.S. § 109.103).

      . In Smiley, Supra, Judge Beck filed a Concurring Opinion and Judge Hester filed a Concurring and Dissenting Opinion.

      . Mrs. Ostronic had been divorced from the Plaintiff Raymond E. Ostronic for several years, and had remarried by the time of the deposition. Her new married name was Carol Lee Gongaware.

      . Our analysis is undertaken with awareness of the sage observation of President Judge Cercone in Heffner v. Allstate Insurance Company, 265 Pa.Super. 181, 184, 401 A.2d 1160, 1161 (1979), affirmed, 491 Pa. 447, 421 A.2d 629 (1980), where he stated: “At the outset we caution anyone who embarks on the high seas of Pennsylvania’s No-fault Motor Vehicle Insurance Act not to do so without a good compass, a knowledge of reefs and storms and plenty of food and water. Any attempt to choose an alternative route by land in an effort to unlock the secrets of the Act will encounter mazes of paths, pitfalls, underbrush and dead ends.”

      . A presumption exists in our law that the legislature did not intend a result that is either absurd, unreasonable and/or inequitable. See Seburn v. Luzerne & Carbon County Motor Transit Company, 394 Pa. 577, 148 A.2d 534 (1959).

      . The Plaintiffs’ attorneys also are party Appellants in this action. Their interest in the case is their application for the Defendant’s payment of legal fees, pursuant to Section 204(a)(2) [ (40 P.S. § 1009.204(a)(2) ]. No issue is raised on this appeal regarding that claim and it is appropriate that the lower court deal with the questions involved in the course of handling the other aspect of this case which is being remanded for further proceedings.


author: WATKINS, Judge:

text:
    460 A.2d 814
    COMMONWEALTH of Pennsylvania v. Robert HOOVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1981.
    Filed May 13, 1983.
    Petition for Allowance of Appeal Denied Oct. 3, 1983.

      John J. Fioravanti, Assistant Public Defender, Doylestown, for appellant.
    Michael S. Goodwin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   WATKINS, Judge:

This case concerns the defendant-appellant’s claim that he cannot be retried because to do so would subject him to double jeopardy.

The defendant was charged with rape, robbery, burglary, theft, simple assault, indecent assault, terroristic threats, recklessly endangering, and possession of instruments of crime. All of the charges arose from an incident occurring on July 16, 1980. Trial by jury commenced on January 27, 1981. On January 31, 1981, the court below declared a mistrial after the jury stated that it was deadlocked. The defendant then filed a motion to dismiss the charges based on the principles of double jeopardy and collateral estoppel. On February 19, 1981, the court below denied the defendant’s motion to dismiss. The defendant then appealed.

The prohibition against double jeopardy requires the discharge of a defendant whose jury is dismissed absent a showing of manifest necessity. U.S. v. Perez, 22 U.S. 579, 6 L.Ed. 165 (1924). When a jury cannot agree on a verdict a mistrial must be declared and the jury dismissed. Such a situation constitutes a “manifest necessity”. U.S. v. Corbitt, 368 F.Supp. 881 (E.D.Pa.1973). The length of time for jury deliberations, prior to the time when a mistrial may be declared, must be decided on a case by case basis because the trial of criminal cases involves a host of variables which precludes the mechanical formulation of predetermined periods of time for the jury’s deliberations. Thus, the length of time for jury deliberations is left to the sound discretion of the trial judge. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); U.S. v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974).

In determining whether a mistrial should be declared, the trial court must be careful not to deprive the defendant of his right to a trial by jury by either discharging the jury prematurely or, on the other hand, by coercing the jury to arrive at a verdict. Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964).

In the instant case, the trial took place over three days. The issues were relatively simple in that the jury’s decision would rest primarily on its evaluation as to the credibility of the various conflicting witnesses. After six hours of deliberation, the jury announced that it had arrived at a verdict on the theft and burglary charges, but that it was deadlocked on the others. The court then sent the jurors back to deliberate. Three hours later the court asked the jurors whether it would be productive to deliberate further. The response was that, “there is always the possibility that it can be resolved”. The court then sent the jury back to deliberate further. Forty-five minutes later, the jury stated that they were “hopelessly deadlocked” and that, “All productive discussion has ceased and further deliberation is fruitless”. The court then declared a mistrial and discharged the jury.

In Commonwealth v. Howard and Banks, 233 Pa.Superior Ct. 496, 335 A.2d 489 (1975), we discussed the various factors involved in deciding whether to grant a mistrial because the jury was deadlocked. We noted in that case that “the primary element in judging whether a jury is really deadlocked is the firmness of its communication to the court that it is deadlocked and the judge’s belief that such is the case”. In our case, the jury was most firm and direct in communicating to the court that it was “hopelessly deadlocked”, that “productive discussions” had ceased, and that further deliberation would be “fruitless”. The length of time a jury has deliberated on a case is not the sole criteria for determining whether it is hopelessly deadlocked. Commonwealth v. Howard and Banks, supra. In a case such as ours where the issues revolve, for the most part, on the witnesses’ credibility and where the jury has definitely expressed its inability to reach a verdict to the trial court, we hold that the trial court did not abuse its discretion in granting the mistrial. See Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974) where six hours of deliberation by a jury was held to be sufficient for the court to declare a mistrial due to a deadlocked jury.

Accordingly, we affirm the order of the court below and remand the case to the court below for a new trial. This Court relinquishes jurisdiction.

      . The jury reached a verdict of not guilty on the burglary charge and theft by unlawful taking charges. Said verdicts were recorded, but a mistrial was declared on the other charges.