author: TAMILIA, Judge:

text:
    510 A.2d 760
    COMMONWEALTH of Pennsylvania v. Sharmon SIMPSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1986.
    Filed May 27, 1986.
    Reargument Denied June 30, 1986.

      William P. James, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence following appellant’s conviction on six counts of robbery, four counts of conspiracy and six counts of possessing an instrument of crime. The trial court sentenced appellant to a total of thirty to sixty years imprisonment by imposing consecutive five to ten year terms for each of the six robberies, concurrent five to ten year terms for each of the conspiracy convictions and concurrent two and one-half to five year terms for each of the charges of possessing an instrument of crime.

The facts indicate appellant's involvement in a series of six robberies committed on two appliance stores from December 1981 through April of 1982. Police arrested appellant at the residence of a friend and later learned of his actual residence. After obtaining a search warrant (items to be searched for were handguns, a white canvas bag and U.S. currency), police searched appellant’s apartment and seized a radio from a tabletop. By examining the serial number of the radio, the officer deduced, based on his own knowledge, that it was a radio taken during one of the robberies.

Appellant raises six issues on appeal alleging trial court error in:

1) Consolidating the six incidents of robbery into a single trial.
2) Failing to suppress admission of the radio into evidence.
3) Admitting testimony concerning the serial number written on a box which once contained the radio.
4) Failing to instruct the jury that alibi evidence need not be wholly believed to give rise to a reasonable doubt.
5) Refusing to instruct the jury it must consider each offense separately.
6) Imposing an excessive sentence.

After a thorough review of the briefs and record, it is our determination that there is no merit to any of the first five issues raised. The trial court Opinion comprehensively discusses each of the issues and the applicable law in support of its rulings. Finding no abuse of discretion or error of law, we affirm the findings as to the first five issues on the basis of the lower court’s Opinion.

It is on the issue of sentencing that we find appellant has raised a meritorious claim. Sentencing is within the sound discretion of the court and absent an abuse of discretion will not be disturbed. Commonwealth v. Arent, 352 Pa.Super. 520, 508 A.2d 596 (1986); Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985); Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978). In order to be considered an abuse of discretion, a sentence must exceed the statutory limits or be manifestly excessive. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Parrish, supra.

In the present case we find the court has committed an abuse of discretion in sentencing appellant to consecutive sentences for each of the robberies, resulting in a thirty to sixty year sentence, which we consider manifestly excessive.

What we find objectionable is the total length of the minimum sentence. Although none of the individual sentences is excessive, the cumulative sentence is. See Arent, supra. A sentence must be imposed based on the minimum amount of confinement that is consistent with the gravity of the offense, the need of the public for protection and the rehabilitative needs of the defendant. Arent, supra; Parrish, supra; Commonwealth v. Campolei, 284 Pa.Super. 291, 425 A.2d 818 (1981); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), 42 Pa.C.S.A. § 9721(b).

Although we agree with the trial court that the offenses are serious in nature, we do not think the protection of the public and the rehabilatative needs of appellant mandate such a sentence.

Up to the time of the crime spree underlying the present convictions, appellant apparently was able to function as a member of society. Evidence of this is his past military service where he served two years on active duty and four years in the reserves, reaching the rank of E5.

Our specific objection to the sentence is based on the court’s imposition of six consecutive sentences. The same considerations which are involved in imposing a single sentence should also be the basis for determining the appropriateness of consecutive terms of imprisonment rather than concurrent. Martin, supra. This would apply equally when sentencing on convictions of multiple crimes arising from the same or separate incidents when tried at the same time.

It is clear that the court focused on the nature of the crimes rather than the totality of the requirements mandated by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and the Sentencing Code, 42 Pa.C.S.A. § 9722-9725. At § 9725, Total confinement, the Sentencing Code provides:

§ 9725. Total confinement

The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

Unquestionably the court was justified, under this section, to impose a sentence of total confinement, and pursuant to section 9725, consecutive sentences were also permissible. However, in the language of the statute above, in addition to the nature and circumstances of the crime(s), the court must also consider the history, character and condition of the defendant.

From a careful review of the record, we derive the following considerations that are essential to an appropriate sentence in this case. The presentence report and defense counsel pointed out to the court that appellant had a virtually nonviolent, unremarkable background; he was a high school graduate, had a six year service record with an honorable discharge and no juvenile record. His uncontested statement was to the effect that he always held a job, came from an interested and concerned family and his only prior contact with the law was an assault charge arising from two people who jumped him (S.T. 8/20/84 pp. 3-9). In focusing on the seriousness of the crimes, the court properly held that a sentence of nonconfinement would depreciate the seriousness of the crimes of the defendant. Like the trial court, we do not find persuasive the argument of defense counsel that no one was shot or threatened by a gun held to the head, as that does not minimize the terror and threat to the victims by a robber threatening with a weapon.

The assistant district attorney properly pointed out that there was absolutely nothing in appellant’s background which shed light on the outrageous quantities of the act(s) and he went on to say that the appellant had cooly and systematically set out to engage in the crime of robbery as a way of life (S.T. 8/20/84 pp. 10-12). These observations were pertinent as to the need for incarceration but also require a balanced consideration as to the potential for rehabilitation and the minimum sentence feasable to accomplish that result. The robberies all occurred at Silo stores, several being repeats (S.T. 8/20/84 p. 14) at the same store. The court recognized his relatively benign background and productive lifestyle until the spree of robberies (S.T. 8/20/84 p. 15). “(He) comes from a large family, and apparently he is the only one, rather late in his life, who took the path that led him to this courthouse.” (S.T. 8/20/84 p. 17). The court went on to say:

The pre-sentence investigation and the mental health evaluation, as Mr. James indicated, are indeed unremarkable. One would hope that there would have been something in there to give me a clue, or give me an idea of why or where the defendant strayed from the fold. I am sure that it is not because of his mother, and I am sure that it was not because of the army, and it is not because of me. He has a girl friend and he has a child. The defendant is bright, and he is literate and articulate. Obviously, somewhere along the way he elected himself to go onto some path which he is going to be rewarded by paying a great deal of his time spent in prison.

(S.T. 8/20/84 pp. 17-18)

The court then reviewed, appropriately, what considerations were required of a trial judge in sentencing under Riggins, supra, and pursuant to the Sentencing Code. In doing so on the record, the court stated:

I have considered the rehabilitative needs of the defendant, the protection of the public, and the gravity of the offenses. I have also considered the defendant as an individual, as I said before, and he is going to pay for what he did. I am also required to consider under the sentencing guidelines, and I have considered and rejected everything except for incarceration. I have considered and rejected probation. I have considered and rejected restitution. I have considered and rejected partial confinement. I have considered and rejected suspended sentence, which means no sentence at all. And I have considered and rejected partial confinement. So after considering all of the required steps that I am to follow, there is nothing left but confinement.

(S.T. 8/20/84 pp. 19-20)

Taking the sentencing transcript to this point, as a whole, without question total confinement was justified. However, in the words of the sentencing judge, all alternatives were considered and rejected without further consideration. It was also necessary to weigh the effect of a cumulative minimum sentence of thirty years, which would take a relatively young man through the prime of his life for a term twice as long as the average life sentence, under a system which unlike the federal system or that of other states, does not permit review and parole upon good behavior in substantially less time than the minimum sentence provides. The weighing, in which the trial court must engage, is a balancing of the defendant’s entire prior life against the crime spree of less than six months for which he was convicted. Simply reciting that the alternatives were considered and rejected ignores the task of weighing those factors when it is apparent that they must be considered. As the trial court aptly pointed out, she is unable to predict the future, therefore, to the extent that we must make a judgment as to future behavior, we cannot ignore and must be guided by the past. Unquestionably, the safest approach for society, and the only way to protect against recidivism, is a virtual life sentence for any offender. This is an unacceptable price to pay to protect society and our sentencing structure must be such that where warranted, an individual has a second or even more chances to become a productive member of society. It is well documented that crime, particularly violent crime, is committed by the young, particularly those males between 18 and 30 years of age. Thereafter because of many operative factors, there is a steady decrease in criminal activity. This case is one where the benefits of a good prior history and the effects of aging on criminal involvement make the appellant a reasonable candidate for a sentence which will punish him, serve the needs of society for protection and make note of the serious nature of the acts, but also permit the appellant, in a reasonable period of timé, to return to society and, if need be, under long-term parole supervision, pick up a meaningful and productive life.

To impose a minimum sentence of thirty years discounts the possibility of rehabilatation and effectively removes appellant from society for his potential working life, precluding the possibility of his ever becoming a contributing member of society.

In light of all the attendant circumstances, we think it would be appropriate to structure a sentence wherein appellant is incarcerated for a significant period of time, consistent with the gravity of the offenses, such as ten years. After that period of time, an extended period of parole, structured to require completion of the sentence if appellant violates parole or probation, would be appropriate.

Where a case requires correction of sentence, this Court can remand or amend the sentence directly. Parrish, supra; Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980) citing Commonwealth v. Portalain, 223 Pa.Super. 33, 297 A.2d 144 (1972). Relying on the good judgment of the trial court to amend a manifestly excessive sentence, we remand for resentencing in conformity with the above discussion.

Judgment of sentence of the trial court is vacated and the case is remanded for resentencing in conformity with this Opinion.

Jurisdiction relinquished.

      . We note that the court catagorized the conviction of robbery as a felony of the second degree (n.t. 8/20/84 p. 20) and sentenced accordingly. Upon review of the record it appears, based on the information filed and evidence presented, that appellant was convicted of a felony of the first degree (18 Pa.C.S.A. § 3701(a)(1)(h).


source: Caselaw Access Project

author: POPOVICH, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    510 A.2d 764
    COMMONWEALTH of Pennsylvania v. Robert E. WOLF, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 16, 1986.
    Filed May 29, 1986.
    John R. Kelsey, III, Lebanon, for appellant.
    John E. Feather, Jr., Assistant District Attorney, Lebanon, for Com., appellee.

      Before WICKERSHAM, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence (two to four years imprisonment) for criminal conspiracy by the appellant, Robert Wolf. We affirm.

The facts, when viewed in a light most favorable to the verdict-winner and drawing all reasonable inferences therefrom, reveal that on the 26th of January, 1983, thirteen-year-old Crystal Swisher was playing video games in the Circle B Laundromat in the City of Lebanon when she was approached by one Dean Stofko, someone she had met once. He asked her for $1.50 to help purchase a bottle of grain alcohol. Ms. Swisher not only gave him the money, she agreed to join him and his friends in drinking it.

The two waited outside the laundry until Stofko’s friends (Timothy Kramer, Dave Weatherholtz, Mitch Miller and the appellant) had secured the alcohol. The six then walked across the street to an apartment, but they left when it was discovered that there was no orange juice to mix with the liquor. As a result, Stofko and his friends decided to repair to Weatherholtz’s premises. Ms. Swisher went along.

The group arrived at the apartment around 5:00 p.m. and found Weatherholtz’s wife (Lori) and two children there. The appellant and Dave Weatherholtz then proceeded to the kitchen to mix the 190 proof grain alcohol in a punch bowl with orange juice. The others, i.e., Kramer, Stofko and Miller, stayed in the living room with Swisher. At this time, Lori advised her husband that she was going to the store to buy cigarettes, and that she would take their daughter along. He was to watch the one-year-old son while she was gone.

Thereafter, the appellant brought in drinks and set one on a table in front of Swisher. At this point, Kramer sat on one arm of a chair and Stofko rested on the other arm as Swisher was in the middle.

Swisher had three drinks of grain alcohol mixed with orange juice at first and later she drank the “grain straight.” She became dizzy and on the verge of passing out. Somehow, although she was initially sitting on a chair, she found herself on the couch, from which she eventually slipped or fell onto the floor. Two of the individuals present carried her upstairs. Thereafter, she recalls being placed on the bed. Her clothing was removed, and she was tied to the bed by her ankles and wrists. Next, the victim recounted how each of the five males took turns sexually assaulting her. The assault lasted no more than twenty-five minutes, for this was the length of time Lori Weatherholtz was away from the apartment. When she returned, she discovered what was going on in her bedroom and directed everyone to leave.

The victim said that after she left the premises, she was pursued for some distance by members of the group. A crowd had gathered, and this attracted the attention of Officer Robert Bowman. Upon investigation, the officer found the victim “having a fit. She was kicking the wall, the ground and saying ‘Leave me alone. I want to die.’ ” Seeing that the victim was intoxicated and emotionally upset, the officer decided to transport her to the emergency room of the Good Samaritan Hospital.

On the way to the hospital, the victim was obstreperous. When asked by the officer why she was acting in such a manner, she reportedly stated, “How would you feel if you were just raped by five guys?”

Once at the hospital, the officer checked the victim’s ankles and wrists and detected what he termed “rope burns and indentations on the inside of both ankles and on the wrists.” Two detectives from the Lebanon Police Department confirmed the “very hysterical” condition of the victim while at the hospital.

Test results from the hospital established that the victim had engaged in sexual intercourse. There was also evidence at trial that the appellant, following his arrest but prior to any incarceration, approached one of the detectives investigating the case to strike a “deal” to minimize any potential sentence he might receive if the case went to trial. This same detective testified that the appellant, in the second of three contacts, admitted witnessing the victim being sexually assaulted. However, he stated he never participated in this attack. This point, interestingly enough, was corroborated by the tests performed by the Federal Bureau of Investigation on the bed linen, i.e., of all the hair samples secured, only those of the victim, Weatherholtz and Kramer matched those found on the bed sheet.

When the appellant took the stand, he admitted to placing a drink in front of the victim and to hearing conversation among the group about sexual relations. He also stated he asked the victim her age and was told 17. Further, Wolf mentioned that, except for seeing two figures on the bed, he observed nothing unusual when he was in the bedroom.

The jury heard all sides of the story, including witnesses on behalf of the appellant assailing the reputation of the victim for truthfulness in the community and one’s recollection that shortly after the incident in question the victim admitted to him that she had read about sexual bondage in a magazine and wanted “to see how it is ... when you are tied up.”

Following a verdict in which the jury found the appellant guilty of conspiring to promote or facilitate the crime of statutory rape, but not guilty of statutory rape and involuntary deviate sexual intercourse, post-trial motions were denied, a sentence was imposed and this appeal was perfected.

Of the four issues raised by the appellant, we find it necessary to respond to only one because of its sparse treatment in this Commonwealth. All others were adequately addressed by the court below in its opinion to this Court and we adopt it as our own for allocatur purposes.

All parties concerned look to the ruling of this Court in Commonwealth v. Calloway, 313 Pa.Super. 173, 459 A.2d 795 (1983) to resolve the issue of whether an offer to compromise is admissible in a criminal case, although each comes away with an interpretation supportive of their respective positions.

In the course of its ruling that the defendant’s offer to plead guilty was properly admitted at trial because he was not under arrest, and, thus, there was no reason for this Court to assume that the defendant was offering to plead guilty to a crime for which he had not been charged, the Calloway Court set forth some guidelines to assess the admissibility of such an offer at trial; to-wit:

Initially, however, it must be determined in such cases whether or not the statement or statements made by an accused are in connection with plea negotiations. U.S. v. Robertson, 582 F.2d 1356 (5th Cir.1978) provides a workable analytical framework to determine the appropriate characterization:
... first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and second, whether the accused’s expectation was reasonable given the totality of the objective circumstances. Id. at 1366.
Of primary importance in assessing an accused’s subjective expectation of negotiating a plea is whether the Commonwealth showed an interest in participating in such discussions. In line with this reasoning, voluntary, unsolicited statements uttered by an accused to authorities cannot be said to be made in furtherance of striking a plea bargain.

313 Pa.Super. at 184-85, 459 A.2d at 800-801.

Instantly, albeit the appellant was under arrest, our analysis does not stop there. Rather, we are required by Calloway to ascertain the accused’s “subjective expectation” in offering to make a “deal” with one who was not a representative of the District Attorney’s Office.

The facts in this regard indicate that, on the 18th of August, 1983 — this was after the second meeting wherein the appellant admitted seeing the victim assaulted, Detective Capello was working at his desk when the appellant, unannounced, walked into his office and:

He told me he would like to make a deal concerning his charges, and I informed him that he — I could not make a deal, he would have to talk to his attorney and also the D.A.’s office, and anything they worked out would be up to them. It was his opinion at that time — he told me that he thought Crystal had been through enough and he didn’t think she should have to go through another trial, because what they did to her was stupid, but when you drink you do stupid things.

We read Calloway to condone the admission of any offer, whether it be made to a police officer or to an assistant district attorney handling the case, provided the Commonwealth showed no interest in participating in such discussions and the statements uttered were voluntary and unsolicited. This appears to be the case here.

Our reading of the facts discounts the presence of any plea negotiations. If it were otherwise, there would have been no reason for the accused to have pleaded his case to a police officer. The fact that the accused may have been “testing the waters” by approaching someone totally foreign to the plea process is indicative of the volitional nature of his statements.

Further, at no time did the accused point to evidence of any “interest” on the part of the Commonwealth to engage in any type of negotiations, be they before or after the statements. These facts, under the teaching of Calloway, would require that we not afford the accused a shield to his extemporaneous remarks.

Just as the criminal law does not afford one solace in a case where he spontaneously makes incriminating statements, we see no reason to accord a different status to statements made by one in a voluntary and unsolicited context. If the Commonwealth or a representative of the authorities had initiated the inquiry, or shown an interest in resolving the case short of a trial, we would not hesitate to protect the accused’s actions. However, such is not the case at bar.

Accordingly, believing that one who speaks should be held accountable for his actions, we hold that the appellant’s statements to Detective Capello were admissible, and, therefore, no new trial is warranted.

Judgment of sentence affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I dissent from the Majority’s determination that Appellant’s statements to Detective Capello were properly admitted at trial.

This court in Commonwealth v. Calloway, 313 Pa.Super. 173, 459 A.2d 795, (1983) announced: “any statements made in connection with an offer to plead guilty are inadmissible”. Appellant’s statements to Detective Capello cannot be characterized as anything other than statements made in connection with an offer to plead guilty.

The Majority in interpreting the holding of Calloway states: “In the course of its ruling that the defendant’s offer to plead guilty was properly admitted at trial because he was not under arrest ... the Calloway Court set forth some guidelines to address the admissibility of such an offer at trial”. Majority Opinion at 487, emphasis added. -The error with the Majority’s analysis rests in its conclusion that the appellant in Calloway made an offer to plead guilty. The Calloway court admitted the appellant’s statements because they did not amount to an “offer to plead guilty”. The Calloway court stated: “In the instant case, we conclude that appellant’s statements were not made attendant to plea negotiations”. Commonwealth v. Calloway, 313 Pa.Super. at 185, 459 A.2d at 801. Accordingly, the guidelines set forth by the Calloway court do not “assess the admissibility of such an offer”, rather they aid in characterizing a statement as an offer.

This distinction is important and was recognized by an Illinois Appellate Court in citing Calloway. In Illinois v. Tennin, 123 Ill.App. 894, 79 Ill.Dec. 64, 463 N.E.2d 202 (1984), the court noted that in cases where statements were found inadmissible as plea related, each defendant clearly sought a concession. When a defendant did not make manifest his plea offer the statements were not characterized as part of a plea discussion and were admitted at trial. To constitute a statement made in connection with an offer to plead guilty it must contain rudiments of the negotiation process. The court in Illinois v. Tennin, supra, also outlined other explanations for statements seeking a “deal” which would indicate that they were not plea related. Such would be the case where one sought to negotiate his release without bond, or where one requested that the charges against him be dropped in exchange for information. Statements made in these instances would not constitute statements made in connection with an offer to plead guilty.

To determine whether or not the statements made by an accused are in connection with plea negotiations, a court must first look to see if the accused exhibited an actual subjective expectation to negotiate a plea, and whether that expectation was reasonable. The totality of the circumstances including the Commonwealth’s interest in participating in such a discussion must be examined to determine if the statements were plea related. Commonwealth v. Calloway, supra, 313 Pa.Super. at 184, 459 A.2d at 801.

In holding that the appellant’s statements in Calloway were simply unsolicited, unilateral remarks and that the appellant could not have had a reasonable subjective expectation that his statements were made in regard to a plea negotiation, the court stated:

Appellant at the time he uttered the statements, was not under arrest, and would not be placed under arrest for the crime until some three months after his personal communication with the district attorney. Not being a defendant, there is then no reason for us to assume that he was offering to plead guilty to a crime for which he had not been charged. There are myriad possible explanations underlying his motivation to provide “information” for a “deal”. We do not know what “information” was or what type of “deal” he wanted to arrange. Neither did the district attorney. We know what appellant claims now, i.e., he was attempting to open a plea bargaining discussion, but our focus seeks an explanation at the time the statements were made.

Id., 313 Pa.Superior Ct. at 185, 459 A.2d at 801.

The statements made by Appellant in the instant case when analyzed with regard to the totality of the circumstances cannot be characterized as anything other than plea related. Unlike the appellant in Calloway, Appellant herein was under arrest when according to the Commonwealth’s version of the incident:

... (O)n August 18, 1983, Detective Capello was working at his desk in the Detective Division of the Lebanon City Police Department when the defendant came into Capello’s office, unrequested; sat next to Capello’s desk and began talking. Capello had not requested any information from the defendant. First, the defendant told Capello that he had been arrested for “drunk driving” after running a stop sign. Wolf then told Capello he want to make a deal with the District Attorney to consolidate the charges of statutory rape and “drunk driving” so that he could do all his time at once. Wolf expressed concern that if he did his time separately, he would be in jail for a long time. Wolf also said that the victim had been through enough, she shouldn’t have to go through another trial, what they did to her was stupid, but when “you are drinking you do stupid things.” Capello responded by telling Wolf he would have to talk to his lawyer and sent him on his way.

Commonwealth Brief at 4-5.

It is inconceivable that there is any explanation for Appellant’s statements other than that they were made in connection with an offer to plead guilty.

The majority in determining that the statements are admissible relies on the fact that the Commonwealth showed no interest in participating in a discussion. While the Calloway court noted that the Commonwealth’s interest in participating in the discussions is important to assess the accused’s subjective expectation of negotiating a plea, the Calloway court did not set forth this type of finding as the dispositive test to determine if the statements were plea related. To rely solely on the Commonwealth’s unwillingness to enter plea negotiations would be unfair and contrary to the purpose of the Rule which seeks to protect a defendant from adverse inferences based upon statements made when seeking to negotiate a plea. The court in Calloway recognized that a system which encourages plea bargains is an essential and highly desirable component of the administration of justice.

Under the decision reached by the Majority today, only the Commonwealth could initiate plea bargaining. There would be no instance where an accused could approach the Commonwealth and seek to initiate a plea arrangement. I do not believe such a result was intended by the Calloway court.

Since I would find that the statements made by Appellant to the detective were made in accordance with an offer to plead guilty, I would reverse the Judgment of Sentence and remand the case for a new trial.

      . We would note that the appellant's "deal" to a police officer renders his "spontaneity" argument (see discussion infra), offered to undermine the existence of a confederation, suspect. Compare Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982).


author: CIRILLO, President Judge:

text:
    510 A.2d 769
    Cyril Harrison WECHT, M.D., J.D., Appellant, v. PG PUBLISHING COMPANY, a Pennsylvania Corporation d/b/a and t/a Pittsburgh Post Gazette, William Block and Paul Block, Jr., John G. Craig, Jr., Tim Menees, a/k/a Timenees, Chet Wade and Tom Hritz, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1986.
    Filed May 30, 1986.

      Sheldon L. Albert, Philadelphia, for appellant.
    Walter T. McGough and John G. Ferreira, Pittsburgh, for appellees.
    Before CIRILLO, President Judge, and BROSKY and JOHNSON, JJ.
   CIRILLO, President Judge:

Appellant, Cyril Wecht, M.D., J.D., initiated this action in trespass against appellees, the Pittsburgh Post-Gazette, its publisher and various of its editors, agents and employees, alleging that appellees maliciously published a number of articles and editorial cartoons which were false, defamatory and portrayed Dr. Wecht in a false light. The trial court sustained appellees preliminary objections in the nature of a demurrer. The court held that the publications were not defamatory as a matter of law. Although the court found the publications objectionable to varying extents, it resolved that the publications failed to meet the threshold requirement of tending to harm Dr. Wecht. This appeal followed.

On appeal, Dr. Wecht submits that the trial court erred: 1) in finding the publications incapable of defamatory meaning; and 2) in sustaining appellees’ preliminary objection to appellant’s false light/invasion of privacy claim.

We find appellant’s arguments in support of his first issue to be meritless. We agree with the trial court that the challenged publications are incapable of defamatory meaning but our decision to affirm on this issue is based upon different reasons than those advanced by the trial court. We may affirm a decision of the trial court when it is correct on any legal ground or theory without regard to the ground upon which the trial court relied. Green v. Juneja, 337 Pa.Super. 460, 487 A.2d 36 (1985); Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984); Leasing Service Corp. v. Benson, 317 Pa.Super. 439, 464 A.2d 402 (1983).

In determining that the published material in question was not defamatory, the trial court relied upon Dr. Wecht’s position as an elected official and a well-known public figure. The court stated in its opinion that the “law of libel is alive and well, but that when a public figure sues under it, he carries a heavy burden, and the first is to show that the subject matter complained of is defamatory.” The court continued that “in a careful review of the subject matter here complained of, we cannot find that it is, recognizing that the First Amendment guarantee of a free press, as interpreted by the United States Supreme Court, carries with it a limited privilege of free expression.” (Emphasis added). The privilege to which the trial judge referred is a qualified one. It is accepted that absolute privileges may be raised at the preliminary objection stage, Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968). But, it is well established that the defense of qualified privilege must be raised by new matter and not by preliminary objection. Vitteck v. Washington Broadcasting Co., Inc., 256 Pa.Super. 427, 389 A.2d 1197 (1978); Burke v. Triangle Publications, Inc., 225 Pa.Super. 272, 302 A.2d 408 (1973). See Pa.R.C.P. 1030. The trial court erred in considering the qualified privilege extended to those commenting on the lives of public figures when ruling upon appellees’ preliminary objections. However, we agree with the trial court that the communications in question were not defamatory in that appellant’s reputation in the community was not harmed.

To maintain his complaint in libel, Wecht was charged with establishing the defamatory nature of the challenged publications. In Pennsylvania

a communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

Restatement (Second) of Torts § 559 (1977). Accord Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980). It is the function of the court to determine whether a contested communication is capable of defamatory meaning. Agriss v. Roadway Express, 334 Pa.Super. 295, 483 A.2d 456 (1984). If the court concludes that the challenged publication is not capable of defamatory meaning, there is no basis for allowing the case to proceed to the jury.

In determining whether a publication is capable of defamatory meaning for purposes of deciding whether to dismiss a complaint alleging defamation upon preliminary objections in the nature of a demurrer, we must accept as true all well pleaded facts averred in the complaint, as well as all reasonable inferences arising therefrom. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa.Super. 253, 489 A.2d 1364 (1985). We will not dismiss a complaint under these circumstances unless it is clear that the publication is incapable of defamatory meaning. Vitteck v. Washington Broadcasting Co. Inc., supra. After a thorough review of the record and the applicable law, we conclude that the facts as pleaded by appellant-Wecht were insufficient to demonstrate the defamatory nature of the contested articles and cartoons. The trial court acted properly in sustaining appellees’ preliminary objections to appellant’s defamation claim. We hold that the communications as they appeared in the Pittsburgh Post-Gazette were incapable of defamatory meaning.

In the ease sub judice, the controversy centers on three editorial cartoons, one satirical article and one news column published by the Pittsburgh Post-Gazette over an 11-month period. One cartoon, appearing on April 5, 1988, drafted by cartoonist Tim Minees, shows a sketch of two people on a field trip, one with a telescope looking at some type of creature with the caption: “He matches, Harriet! Listen: Cycoon — peculiar to Allegheny County; can be vocal, abusive and quarrelsome; found near democrats and morgues; considered bright but untrainable; often chases own tail.” The following month the Pittsburgh Post-Gazette published a cartoon depicting four polling booth scenes with three white hand bags sitting outside three of the booths. The booth labelled “Wecht” had a black doctor’s bag sitting next to it. Wecht’s booth was surrounded by typewriter symbols commonly used to represent expletives plus the phrases: “out to get me”, “scurrilous scum,” and “no fraud.” The other three booths were surrounded only by the words: “click,” “yawn,” “ho-hum,” “heh-heh,” and “hars-hars.” The third cartoon identified in the complaint as libelous is a caricature of Wecht with a wide grin on his face while he holds a newspaper with the headline: “Gene Coon Arrested.” The remaining allegedly objectionable publications are two newspaper columns which will be discussed later.

Appellant’s complaint avers that the two newspaper articles and three editorial cartoons appearing in the Pittsburgh Post-Gazette were published with the specific intent of smearing and besmirching Wecht’s reputation. Appellant argues the publications conveyed false impressions and statements about him and that the newspaper published them with full knowledge that they were false. Initially, appellant urges that the trial court erred in sustaining appellees’ preliminary objections because it applied the wrong standard of law. Appellant argues that the trial judge did not decide the alleged defamatory publications were incapable of bearing defamatory meaning in the minds of the average person but rather the judge reached this conclusion based on his own subjective belief.

Wecht asserts that in determining whether a particular publication is capable of defamatory meaning

the test is the effect the [entire] article is fairly calculated to produce, the impression it would naturally engender in the minds of the average person among whom it is intended to circulate. The words must be given by judges and juries the same significance that other people are likely to attribute to them.

Zartman v. Lehigh County Humane Society, 333 Pa.Super. 245, 251, 482 A.2d 266, 269 (1984). We are in full agreement with appellant’s assertion. See also Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163, 484 A.2d 72 (1984). However we cannot agree with appellant’s argument that the trial judge concluded that the questioned communications were not defamatory based upon his own personal beliefs. The trial judge reached this conclusion after determining that in the “mind of the reader” the articles and cartoons were incapable of defamatory meaning. The court employed phrases such as “the most attentive reader” and “among the reading public” to set forth its determination. Therefore, despite appellant’s arguments to the contrary, the trial court applied the correct standard of law in determining that the editorial cartoons and the articles could not be reasonably construed as defamatory.

Appellant next contends that each of the challenged publications is capable of bearing defamatory meaning. In regards to the cartoon which depicts Wecht as a “eycoon,” appellant argues that the cartoon portrays him as a “scurrilous scum.” Wecht submits that by portraying him as actually acting in such a coarse, vile, obscene and abusive-manner, the cartoon conveys to the reader the false and defamatory impression that he is a “scurrilous scum” whose actions befit such description. As to the cartoon which pictures Wecht within the private world of the voting booth spewing obscenities, appellant claims that the false and defamatory impression conveyed to the reader is that Wecht is an obscene, vile and/or abusive individual. Appellant laments further that this cartoon communicates to the reader that Wecht is a paranoid individual with a guilty conscience. Concerning the third contested cartoon wherein Wecht is represented as being overjoyed at the news of Sheriff Gene Coon’s arrest, appellant opines that it falsely brands him as an insensitive, malicious, hypocritical person who takes delight in the misfortune of others. Wecht maintains that the cartoons injured his reputation, exposed him to public hatred, contempt and ridicule and falsely ascribed to him a lack of competence and fitness for his public office.

While we do not doubt that Wecht was embarrassed and annoyed by the publication of these cartoons and the way in which they portrayed him, not every embarrassing or annoying publication constitutes libel. “A publication which charges that an individual is actuated by unpleasant or undesirable [characteristics] may offend his sensitivities but is not thereby libelous.” Rybas v. Wapner, 311 Pa.Super. 50, 52, 457 A.2d 108, 110 (1983). In the present case, appellant asserts that the cartoons portrayed him as a vile, obscene, abusive, insensitive and paranoid individual. While no one cares to be presented in such a light, we are not persuaded that such characterization is libelous. “Statements which ... are annoying or embarassing, are, without more, not libelous.” Bogash v. Elkins, 405 Pa. 437, 440, 176 A.2d 677, 678 (1962).

“The law stands as a guardian to protect a man’s good name earned in the heat of battle, in the sweat of work, and in the laboratory of conscience, but it cannot prescribe hospitalization for abrasions or order surgery for hiccough.” Kernick v. Dardanell, 428 Pa. 288, 293, 236 A.2d 191, 193 (1967). The cartoons which appeared in the Pittsburgh Post-Gazette do not come within the parameters of what constitutes libel. Reading the alleged defamatory cartoons against the circumstances under which they were published, it is clear that even the most careless reader would understand that the cartoons were no more than a humorous exaggeration of what the cartoonists believed to be Wecht’s undesirable traits. Appellees did not publish a factual news report expecting the reading public to take it at face value but cartoons in which they intended to present editorial comment on Wecht’s personality. No reasonable person would conclude more than that in appellees’ opinion Wecht possessed some personality traits of which they were not fond.

The question of whether a challenged publication is fact or opinion is one of law to be answered by the trial court. Braig v. Field Comm., 310 Pa.Super. 569, 456 A.2d 1366 (1983). When viewed without a forced interpretation, the cartoons cannot be understood to state facts concerning Dr. Wecht. Individuals exposed to these cartoons will appreciate the context under which they were published and will not view these exaggerated imprecise comments on Wecht in their literal sense. “Americans have been hurling epithets at each other for generations ... [cjertainly such name calling, either express or implied, does not always give rise to an action in libel.” Raible v. Newsweek, Inc., 341 F.Supp. 804, 809 (W.D.Pa.1972). In a number of instances, Pennsylvania courts have refused to find epithets of a more serious nature capable of defamatory meaning. Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983) (anti-Semitic); Fram v. Yellow Cab Co., 380 F.Supp. 1314 (W.D.Pa.1974) (paranoid schizophrenic); Raible v. Newsweek, Inc., supra (bigot). In the present case, the view that Wecht is a vile, obscene, abusive and insensitive person would only result if the forced interpretation suggested by appellant is employed. Viewed in their natural sense, the cartoons do not reflect upon Wecht’s character in such a manner as to cause him to suffer ridicule, hatred or contempt in the minds of a respectable class of the community.

The person who is the target of unkind words is bound to feel hurt, but he or she often exaggerates in his or her mind the extent of damage done to his or her reputation in the public mind. The public has many things to think and talk about, and it does not linger on [cartoons which appear in the local newspaper.]

Kernick, 428 Pa. at 292, 236 A.2d at 192.

The analysis which we employed to determine that the cartoons were incapable of defamatory meaning is also helpful in resolving the question of whether the satirical article wherein appellant is referred to as “Pittsburgh’s leading defendant” is defamatory. Considering the article as a whole, there is no doubt that even the most inattentive reader would not understand the statements presented in this article as fact. In the author’s opinion the city of Pittsburgh is in need of improvement in a number of areas. To express this view, the author chose a satirical format in which he suggested a tour of the city wherein visitors would see the “real Pittsburgh.” Highlights of this tour include: taking a Pittsburgh cab (the most expensive in the world); stopping at the City-County Building to sit in and watch Pittsburgh’s leading defendant, Cyril Wecht, in action; watching the Allegheny County Commissioners perform their only serious chores — awarding medals and citations to Little League teams, beauty queens and cub scout dens; avoiding taking a bus destined for Mt. Washington because those buses are never seen again; pausing for a moment of silence after crossing the Smithfield Street Bridge in memory of those Pittsburgh residents who must cross this bridge everyday because it is falling into the Monogahela River piece by piece; and finally, marveling that 16 lanes of traffic manage to merge into four lanes at the Fort Pitt Bridge without something catastrophic happening. The nature and content of the article suggest nothing more than a gross overstatement of Pittsburgh ills. It would be obvious to the reasonable reader that appellees approached this subject tongue-in-cheek and that these statements were not the by-product of extensive analysis and accumulation of data. Redding v. Carlton, 223 Pa.Super. 136, 296 A.2d 880 (1972).

Even the most inattentive reader would not accept this article as a factual narrative. Considering the totality of the printed material, including the headline, we find this publication incapable of defamatory meaning. Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 442 A.2d 213 (1981). The reception of this article by the community in which it was circulated was not such that Wecht’s reputation was harmed or he was held in lower esteem. Surely, appellees had the right to state their view of Pittsburgh. Appellees obviously are impressed by the fact that Wecht has been in court as a defendant. Since Wecht’s criminal and civil trial regarding his use of city workers for his private laboratories is a matter of public record, appellees merely exaggerated this fact to the absurd to emphasize their opinion of Wecht. See Restatement (Second) of Torts, § 566 (expression of opinion not defamatory unless it implies allegations of undisclosed fact); Hoover v. Peerless Publications, Inc., 461 F.Supp. 1206 (E.D. Pa.1978). Communications of this genre serve to animate public dialogue and commentary. In this case, the use of such hyperbole cannot be held to be defamatory. “Thus, [Wecht is] not to be offended if [his] lawsuit is referred to as a tempest in a teapot, a hurricane in a fish bowl, or a Pickett’s Charge in a chicken coop.” Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 427, 229 A.2d 733, 734 (1967) (not defamatory to state that plaintiff’s apartment buildings look like “chicken coops”).

The final publication at issue is an article concerning an interview of Allegheny County District Attorney Robert E. Colville by appellees’ editorial board at the time Colville was running for re-election. The story’s headline read: “Court Order Will Free Rapists, Murderers, Colville Says.” The article included Colvilles’ comments on a number of issues: overcrowding at the County jail; Colville’s policy of not accepting plea bargains for second offenders; Colville’s policy of allowing the Warden and the Prison Board to determine who goes on parole; Colville’s own political future; and, why Colville refused to charge Wecht with attempting to improperly influence State Supreme Court Justice Rolf Larsen.

Commenting on his decision not to bring charges against Wecht, Colville stated that he had no indication that anything illegal occurred. Far from disparaging Dr. Wecht, such a comment would act to exonerate him in the eyes of the public. We fail to see how a statement in which it is averred that an individual has failed to do anything illegal is capable of defaming that individual. Contra Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971) (a statement which falsely imports that an individual has committed a crime is defamatory per se); Restatement (Second) of Torts, § 571. Colville stated that Wecht contacted Justice Larsen apparently to get help with some criminal charges which had been levied against Wecht. Surely, such language was sufficient to clarify Colville’s position that he did not believe any type of criminal activity had transpired between Justice Larsen and Wecht.

Even when considered in conjunction with the headline, it is clear that this publication is incapable of defamatory meaning. While the headline refers to rapists and murderers, the reasonable reader would not associate Wecht with this statement. It is inconceivable that Wecht’s reputation would be besmirched by such a communication.

The second issue raised by Wecht involves the propriety of the trial court’s sustention of appellees’ preliminary objections to appellant’s false light/invasion of privacy claim. Appellees’ preliminary objections to this claim included an allegation that as a matter of law the cartoons and articles did not portray Wecht in a false light, highly offensive to a reasonable person. Appellees’ also claimed a privilege under the First Amendment to the United States Constitution.

As discussed previously, preliminary objections are not the proper stage to determine the viability of conditional Constitutional privileges such as the one raised herein. Vitteck v. Washington Broadcasting Co., Inc., 256 Pa.Super. 427, 389 A.2d 1197 (1978). Therefore, only one potential basis existed for dismissal of Wecht’s claim for false light/invasion of privacy. The trial court, while dismissing Wecht’s complaint in its entirety, did not address appellees’ objections to the false light/invasion of privacy claim; only the non-defamatory nature of the cartoons and articles was discussed. “As such, dismissal of the complaint in its entirety was procedurally unauthorized.” Zartman v. Lehigh County Humane Society, 333 Pa.Super. 245, 255, 482 A.2d 266, 271 (1984).

We affirm the trial court’s order dismissing appellant’s claim of libel. However, we vacate that order insofar as it dismissed Wecht’s claim of false light/invasion of privacy and remand for further proceedings. Jurisdiction relinquished.

      . Even though the cartoon does not directly refer to Wecht as a "scurrilous scum,” appellant argues that such a reference is made implicitly. Appellant contends that because the language of the “cycoon” is abusive and coarse and contains the intended obscenity— scurrilous scum' — the "cycoon” himself is portrayed as being a scurrilous scum. To accept this argument, the court would be required to take a leap in logic. We are not prepared and/or willing to perform such a feat. It is clear that the term is shown as spoken by Dr. Wecht himself and portrayed as being directed toward others. A reasonable reader could not reasonably conclude that the term was directed back at the speaker.


author:
MONTEMURO, Judge:
      OLSZEWSKI, Judge, CAVANAUGH, Judge,

text:
    510 A.2d 776
    Ruth J. PACHESKY and Robert Pachesky, her husband, Appellants, v. Frank D. GETZ, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1986.
    Filed May 29, 1986.

      James Cole, Pittsburgh, for appellants.
    John E. Wall, Pittsburgh, for appellee.
    Before CIRILLO, President Judge and CAVANAUGH, BROSKY, WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

On December 6, 1978, appellant, Ruth J. Pachesky, was injured during an attempt to rescue appellee, Frank D. Getz. Ms. Pachesky and her husband, Robert Pachesky [hereinafter appellants], thereafter commenced an action against appellee in the Court of Common Pleas of Allegheny County.

On September 25, 28 and 30, 1981, this case was tried before the Honorable I. Martin Wekselman and a jury. Responding to special interrogatories propounded by the court below, the jury found that: (1) both Ms. Pachesky and appellee were negligent; (2) their respective negligent acts or omissions were substantial factors in bringing about Ms. Pachesky’s injuries; and (3) of the total causal negligence, 20% was attributable to appellee and 80% was attributable to Ms. Pachesky. In light of these findings, the court below entered a verdict in favor of appellee. See 42 Pa. C.S. § 7102.

On October 9, 1981, appellants filed a motion for new trial, which was briefed and argued by the parties, and subsequently denied by the court below in an order dated July. 13, 1983. Judgment was entered on the verdict and this timely appeal followed.

As ably set forth in the opinion of the court below, the unfortunate circumstances giving rise to this action are the following:

In the early morning hours of December 6, 1978, plaintiff [appellant] Ruth Pachesky was returning from work. Her home was at the crest of a hill on Tingley Avenue in the Borough of Bellvue. As she approached her home, she observed a stationary car in the middle of the street just below the crest of the hill. She passed the stationary vehicle and noticed that its lights were on, the engine was running, the windows were up, and that a man, who proved to be defendant [appellee] Frank D. Getz, was slumped motionless over the steering wheel. Believing the defendant was being overcome by carbon monoxide, she parked her car, ran into her house and got her husband, plaintiff [appellant] Robert Pachesky. The two of them returned to the scene, pounded on the windshield and shouted in an attempt to arouse defendant. When defendant failed to respond, they tried to open the passenger side door and found that it was locked. Mrs. Pachesky then ran around to the driver's side, opened the door, rolled down the window and turned off the ignition. As soon as the ignition was turned off, the car began to drift backwards down the hill. The open door of defendant’s car struck Mrs. Pachesky, knocking her to the ground and inflicting certain personal injuries on her. Evidence at trial indicated that defendant was intoxicated and that possibility was really not seriously contested by defendant.

Lower court opinion, 1-2.

The issues presented by appellants for our review are: (1) whether the verdict was against the weight of the evidence; (2) whether the court below erred with respect to its jury instruction on “proximate causation”; and (3) whether the court below “erred in refusing to instruct the jury that when a plaintiff is injured while attempting to rescue a defendant who negligently placed himself in a position of peril the plaintiff cannot be found contributorily negligent unless the plaintiff’s actions were rash or wanton.” Appellants’ brief, 3.

I. Weight of the Evidence.

Appellants’ first issue need not detain us. In Sperrazza v. Cambridge Mutual Fire Insurance Company, 313 Pa. Super. 60, 459 A.2d 409 (1983), we reiterated standards of review equally pertinent to the case sub judice:

When considering a motion for a new trial on the grounds that the verdict was against the weight of the evidence, the evidence is not considered in the light most favorable to the verdict winner. Rather, all evidence must be reviewed to determine whether the verdict is so contrary to the evidence as to shock one’s sense of justice, making the award of a new trial imperative so that right may be given another opportunity to prevail. Cianci v. Burwell, 299 Pa.Super. 387, 390, 445 A.2d 809, 810 (1982); Peair v. Home Association of Enola Legion No. 751, supra 287 Pa.Super. [400] at 410, 430 A.2d [665] at 670 [1981]. The grant of a new trial is within the sound discretion of the trial judge whose exercise thereof will not be reversed in the absence of a palpable abuse of discretion. Yandrich v. Radic, 291 Pa.Super. 75, 79, 435 A.2d 226, 229 (1981); Canery v. Southeastern Pennsylvania Transportation Authority, 267 Pa.Super. 382, 391, 406 A.2d 1093, 1097 (1979); Ditz v. Marshall, 259 Pa.Super. 31, 35, 393 A.2d 701, 703 (1978).

Id. 313 Pa.Super. at 64-65 n. 3, 459 A.2d at 411 n. 3. See Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). Furthermore, we are mindful in this regard that,

An abuse of discretion does not necessarily imply a willful abuse, but if,
[I]n reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.
Commonwealth v. One 1961 Buick Special 4-Door Sedan, 204 Pa.Super. 293, 295, 204 A.2d 288, 289 (1964). (Emphasis added.) Adelman v. John McShain, Inc., 148 Pa.Super. 138, 24 A.2d 703 (1942).

Prescott v. Prescott, 284 Pa.Super. 430, 435, 426 A.2d 123, 125 (1981).

Appellants’ specific contention is that the jury’s attribution to Ms. Pachesky of a greater percentage of the causal negligence was contrary to the weight of the evidence. The court below rejoined this contention with the following:

Mrs. Pachesky’s own testimony was to the effect that she turned off the ignition without checking to determine if the parking brake was engaged or if defendant had his foot on the foot brake; nor did she determine whether the vehicle’s transmission was in ‘park,’ ‘neutral’ or ‘drive.’ She, of course, was an experienced driver and knew or should have known that the vehicle would roll back down the hill, unless the brake was set or the transmission was in ‘park,’ after the ignition was turned off. The jury had evidence before it from which it could determine that a reasonably prudent person, under like circumstances, would have taken the precaution of determining those matters before placing herself in such a dangerous position. Nor can a new trial be awarded on the basis that the verdict was against the weight of the evidence merely because the trial judge would have reached a different conclusion on the evidence presented. The trial judge is not free to usurp the function of the jury in those situations where there is evidence from which the jury could have found as it did.

Lower court opinion, 3. While appellee’s causal negligence, as demonstrated by the record, was patently not insignificant, our sense of justice is nevertheless unoffended by the jury’s apportionment. Not only are we unable to find any “palpable abuse of discretion” on the part of the court below with respect to this issue, we are of the opinion that the court’s evidential analysis and subsequent disposition were quite proper.

II. Causation.

Prefacing its charge as to “proximate causation”, the court below instructed the jury that, “Proximate means immediate, nearest, next in order, and in its legal sense, closest in causal connection.” N.T., 85. Appellants assign this instruction as reversible error. Specifically, appellants argue that, on the basis of this instruction, the jury may have mistakenly concluded that appellee’s negligence was not actionable in that Ms. Pachesky’s acts were temporally supervenient; i.e., appellee’s acts could not be viewed as “nearest” or “closest” and therefore “proximate”. Not only is appellants’ contention belied by the jury’s ultimate attribution of 20% of the causative negligence to appellee, considering the totality of the charge on “proximate causation”, any error with regard to the portion complained of clearly does not warrant reversal.

In Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984), our supreme court observed:

It is well settled in our Commonwealth that when the propriety of the jury instruction of the trial court is at issue, those instructions must be viewed in toto to determine if any error has been committed. Unless the charge as a whole can be demonstrated to have caused prejudicial error, we will not reverse for isolated inaccuracies. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972). Vanic v. Ragni, 435 Pa. 26, 254 A.2d 618 (1969).

Id., 504 Pa. at 576, 475 A.2d at 1316. See also Naccarati v. Garrett, 351 Pa.Super. 437, 506 A.2d 428 (1986). Immediately following its definitional instruction with respect to the word “proximate”, the court below offered a full explication of the legal theory of “proximate causation”, charging:

So proximate cause means that, which in a normal and continuous sequence, unbroken by any efficient intervening cause, produces the incident and without which the result would not have occurred. To constitute proximate 'cause, an act or omission must be such as would probably ■result in harm, and it must be a substantial factor in .bringing about that harm.

N.T., 85. Additionally, responding to a request by the jurors for a legal definition of the word “substantial”, the court below subsequently supplemented its charge, stating:

I will attempt to give you a legal definition of the word, substantial, in addition to what I have already given you. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with the accident. Now, that is the best I can do for you as a legal definition of the word, substantial, as it is applicable to the issues of negligence and contributory negligence in this case.

Id. at 114-15. We are of the opinion that the court’s instructions as they specifically related to the overall concept of proximate, or “legal”, causation were in complete consonance with the current state of the pertinent law of this Commonwealth.

In Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), our supreme court offered the following elucidation:

Proximate cause is a term of art denoting the point at which legal responsibility attaches for the harm to another arising out of some act of defendant. Flickinger Estate v. Ritsky, [452 Pa. 69, 305 A.2d 40 (1973)]; W. Prosser, Law of Torts, § 41 (4th ed. 1971); and it may be established by evidence that the defendant’s negligent act or failure to act was a substantial factor in bringing about the plaintiff’s harm. Flickinger Estate v. Ritsky, supra; Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970) (plurality opinion); Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965); Diakolios v. Sears Roebuck & Co., 387 Pa. 184, 127 A.2d 603 (1956); Simon v. Hudson Coal Co., 350 Pa. 82, 38 A.2d 259 (1944); Frangis v. Duquesne Light Co., 232 Pa. Super. 420, 335 A.2d 796 (1975). The defendant’s negligent conduct may not, however, be found to be a substantial cause where the plaintiff’s injury would have been sustained even in the absence of the actor’s negligence. Majors v. Brodhead Hotel, supra; DeAngelis v. Burns, 404 Pa. 230, 171 A.2d 762 (1961); Frangis v. Duquesne Light Co., supra; Restatement, § 432.

Id. 481 Pa. at 265, 392 A.2d at 1284. See also E.J. Stewart, Inc. v. Aitken Products, Inc., 607 F.Supp. 883, 889 (E.D. Pa.1985); Baum v. United States, 541 F.Supp. 1349 (M.D. Pa.1982); McKnight v. City of Philadelphia, 299 Pa.Super. 327, 445 A.2d 778 (1982); Pa. SSJI (Civ) 3.25. A finding of proximate causation must implicitly embody both a finding of “causation-in-fact” and a finding that the alleged negligence was a “substantial factor” in bringing about the injury. The jury in the instant case was thoroughly and accurately apprised of those requisites. While the prefatory instruction with regard to the word “proximate” may have been inartful and unnecessarily limiting, given its relation herein to the applicable doctrine of causation, viewing the relevant instructions in toto, we are unable to discern any appreciable prejudice that may have operated to appellants' detriment. Therefore, we expressly decline to find reversible error.

III. Rescue Doctrine.

Having resolved the preceding two issues against appellants, we now confront perhaps the most challenging of the three issues to be considered.

As we said, appellants allege that the court below “erred in refusing to instruct the jury that when a plaintiff is injured while attempting to rescue a defendant who negligently placed himself in a position of peril the plaintiff cannot be found contributorily negligent unless the plaintiffs actions were rash or wanton.” Appellants’ brief, 3. Conversely, appellants challenge the instruction actually given as a “misleading and erroneous” statement of the relevant legal principle. The court below instructed, in pertinent part:

Now, members of the jury, there is a theory of law which you must consider in your deliberations, and that is where a person places another person or himself, where he negligently places another person or himself in a position which in the natural and normal course of events invites rescue, he is liable to the person who comes to his rescue for any injury which that person may suffer in the attempted rescue, provided, of course, that the person who attempts the rescue acts reasonably in attempting to effect that rescue.

N.T., 87. Therefore, we are directed by this appeal to consider the current posture of the so-called “rescue doctrine” (otherwise known as the “danger-invites-rescue doctrine”) in this Commonwealth.

In 1921, Justice Benjamin Cardozo declared with his customary verve:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.... The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path.... The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

Wagner v. International R. Co., 232 N.Y. 176, 180, 133 N.E. 437, 437-38 (1921).

Speaking through Justice J. Hay Brown, our own supreme court had previously posited:

A rescuer, one who, from the most unselfish motives, prompted by the noblest impulses that can impel man to deeds of heroism, faces deadly peril, ought not to hear from the law words of condemnation of his bravery, because he rushed into danger, to snatch from it the life of a fellow creature, imperiled by the negligence of another; but he should rather listen to words of approval, unless regretfully withheld on account of the unmistakable evidence of his rashness and imprudence. This conscience and reason approve, and the best judgment of thoughtful and intelligent judges has declared it to be the law of the land.

Corbin v. City of Philadelphia, 195 Pa. 461, 468-69, 45 A. 1070, 1072 (1900). One of the more complete, and certainly more recent, statements of this doctrine is contained in the opinion of the Georgia Court of Appeals in Walker Hauling Company v. Johnson, 110 Ga. App. 620, 139 S.E.2d 496 (1964):

Where a defendant’s negligent act, of commission or omission, has created a condition or situation which involves urgent and imminent peril and danger, to life or property, of himself or of others, those acts of negligence are also negligence in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, short of rashness and recklessness, may attempt, successfully or otherwise, to rescue such endangered life or property, by any means reasonably appropriate to the purpose; and insofar as the proximate cause of any injuries that a rescuer sustains as a result of his efforts is concerned, the chain of causation remains intact, since it is reasonably to be anticipated that, once such peril to life or property is initiated and brought into being by the negligence of a defendant, reasonable attempts will be undertaken to alleviate and nullify the consequences of such peril.

Id. at 624, 139 S.E.2d at 499. See also Furka v. Great Lakes Dredge & Dock Co., Inc., 755 F.2d 1085 (4th Cir.), cert. denied, — U.S. —, 106 S. Ct. 136, 88 L.Ed.2d 112 (1985); Altamuro v. Milner Hotel, Inc., 540 F.Supp. 870 (E.D. Pa. 1982); Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228 (Fla.Dist.Ct.App.1978); Padilla v. Hooks International, Inc., 99 N.M. 121, 654 P.2d 574 (Ct.App.), cert. denied, 99 N.M. 148, 655 P.2d 160 (1982); Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672 (Wis.1977).

Against this rather colorful doctrinal backdrop, appellants would appear to be correct in urging that a rescuer’s contributory negligence is legally manifested only by his/her rashness or wantonness. However, it must be kept in mind that the rescue doctrine has traditionally existed only in so far as to serve the dual purposes of (1) establishing a causal connection between a defendant’s negligence and a plaintiff/rescuer’s injury, and (2) eliminating the absolute defense of contributory negligence. See Korte, supra, 357 So.2d at 230. “The purpose of the rescue doctrine when it was first created was to avoid a plaintiff being found contributorily negligent as a matter of law when he voluntarily placed himself in a perilous position to prevent another person from suffering serious injury or death.” 57 Am.Jur.2d Negligence § 419 (1971). In short, the rescue doctrine has permitted rescuing plaintiffs access to the courthouse despite the volitional nature of their rescue efforts and further permitted recovery, once therein, from negligent defendants despite the unreasonableness of the plaintiffs’ acts as long as that unreasonableness did not amount to wantonness. The law, in these circumstances, has clearly harbored a high regard for human life and its preservation. See Scott v. John H. Hampshire, Inc., 246 Md. 171, 227 A.2d 751 (1967).

In 1976, this Commonwealth, long a jurisdiction wherein the contributory negligence of a plaintiff, no matter how insignificant, barred recovery in a negligence action, adopted a system of comparative fault apportionment. Our current comparative negligence statute provides in pertinent part:

(a) General rule — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

42 Pa. C.S. § 7102 (emphasis supplied). The existence of two negligent acts or omissions, on the part of a plaintiff and a defendant respectively, triggers the invocation of section 7102’s provisions. See Carrender v. Fitterer. 503 Pa. 178, 469 A.2d 120 (1983). The absolute defense of a plaintiffs contributory negligence has been abolished. Accordingly, in that the “wantonness” standard exhorted by appellants developed as an amelioration of the harshness of the contributory negligence rule in rescue cases, the advent of our system of comparative fault necessitates the reevaluation of the continued usefulness of that standard.

For guidance, we turn first to our sister state, Wisconsin. Wisconsin’s “contributory negligence” statute, Wis.Stat. Ann. § 895.045 (1983), is, in all relevant respects, identical to our “comparative negligence” statute. In Cords, supra., the Wisconsin Supreme Court considered the applicability of the rescue doctrine in an action involving comparative fault. The court concluded:

We hold that a rescuer is not negligent where the rescue, although dangerous, is not unreasonable or unreasonably carried out. In a comparative negligence jurisdiction such as Wisconsin, if the trier of fact finds that the rescue is unreasonable or unreasonably carried out the factfinder should then make a comparison of negligence between the rescuer and the one whose negligence created the situation to which the rescue was a response.

Cords, 80 Wis.2d at 548, 259 N.W.2d at 683.

In Korte, supra, the Florida District Court of Appeal similarly found:

Now that Florida has abolished contributory negligence, the rescue doctrine is no longer needed to allow a rescuer to recover in spite of his contributory negligence, but there is no logical reason why the principles of comparative negligence should not apply in a rescue case. We therefore hold that when the plaintiff in performing a rescue is himself negligent, he should recover only that portion of the entire damages sustained by him as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant.

Korte, 357 So.2d at 230.

We are persuaded as to the wisdom of these holdings. When a plaintiff performs a rescue in a reasonable manner, he/she is entitled to full recovery from the negligent defendant for all damages occasioned thereby. However, when a plaintiff acts unreasonably, that is, in a negligent fashion, in performing a rescue, the relative causal negligence of the parties should be apportioned in accordance with the provisions of section 7102.

We hasten to add that the rescue doctrine is clearly not subsumed by our system of comparative negligence. Of the previously articulated dual purposes which the doctrine served, the doctrine continues to serve the vital, albeit singular, purpose of establishing a causal connection between a defendant’s negligence and a plaintiff/rescuer’s injury, which in turn leaves open the courthouse door.

Returning to the instruction at issue, we find that the court below was eminently correct in directing the jury to allow for Ms. Pachesky’s full recovery if the jury found her, as the rescuer, to have acted “reasonably”. The jury, as factfinder, found otherwise and, in accordance with the further instructions of the court below, the jury appropriately assigned to Ms. Pachesky a percentage of the causative negligence.

In light of the foregoing, we affirm the judgment entered below.

Judgment affirmed.

CIRILLO, President Judge, BROSKY, WIEAND, DEL SOLE and TAMILIA, JJ., join in opinion for affirmance.

OLSZEWSKI, J., files concurring opinion.

McEWEN, J. joins in concurring opinion.

CAVANAUGH, J. files dissenting opinion.

OLSZEWSKI, Judge,

concurring:

I agree with the well reasoned disposition of the majority except for the final issue dealing with the jury instruction and the Rescue Doctrine. As recited by the lower court and adopted by the majority, appellant’s injuries resulted from her attempt to aid appellee. Noticing his car stopped with the engine running and fearing the effects of carbon monoxide poisoning, appellant shut off the engine. Since the car was still in gear at this time, it began to roll, knocking her to the ground and inflicting injuries.

The Pennsylvania Supreme Court, as early as 1900, realized the great regard for human life and the need to safeguard those who attempt to save the life of another. In Corbin v. Philadelphia, 195 Pa. 461, 45 A. 1070 (1900), it was determined that:

The law has so great a regard for human life that it will not impute negligence to an effort to preserve it, if the effort is made with a reasonable regard for the rescuer’s own safety ... It is not negligence per se for one to voluntarily risk his own safety or life in attempting to rescue another from impending danger.

Because of this great regard for human life, rescuers often act in the excitement of the moment in ways in which they would not act under calmer circumstances. This is precisely what happened to Mrs. Pachesky.

While I agree with the majority that there was no reversible error, I believe that the jury instruction and the special interrogatories could be shaped to give greater effect to the important policy of encouraging rescue and saving lives which underlies the Rescue Doctrine. I agree that the case to follow is the Wisconsin Supreme Court’s decision in Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672 (1977), found on page 782 of the majority’s opinion. The Cord’s procedure is to first determine whether plaintiff’s actions were reasonable; only if they are unreasonable should the doctrine of comparative negligence come into play. Therefore, in submitting the special interrogatories to the jury, the initial question should be, “was the rescue unreasonable or unreasonably carried out?” The jury would then be instructed to continue with the remaining interrogatories only if the answer to this first question was “yes.”

McEWEN, J., joins.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. As noted by the majority, the trial court charged the jury with respect to the rescue doctrine as follows:

Now, members of the jury, there is a theory of law which you must consider in your deliberations, and that is where a person places another person or himself, where he negligently places another person or himself in a position which in the natural and normal course of events invites rescue, he is liable to the person who comes to his rescue for any injury which that person may suffer in the attempted rescue, provided, of course, that the person who attempts the rescue acts reasonable in attempting to effect that rescue.

The court further charged with respect to contributory negligence.

Now, I have indicated to you what negligence is, but there is another phrase used in these cases that is called contributory negligence. Contributory negligence refers to the plaintiff. It refers to conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiffs harm. Regardless of whether the defendant was negligent, if you find that the plaintiff contributed to the accident by any negligence of his own, then it is said he is guilty of contributory negligence.

In addition, the court charged on negligence as to the defendant and further charged that if negligence be found, it must be a proximate cause of the incident. In so charging, I believe that the court effectively emasculated the rescue doctrine as it applies to this case. The majority reduces the rescue doctrine to ordinary negligence principles. (Was either part causatively negligent and, if so, what is the percentage of negligence?) In so doing, the majority strips the rescue doctrine of two of the principles upon which it is founded: first that the imperiled person’s negligence is actionable even though it be antecedent and, secondly, that the rescuer be excused from a standard of ordinary deliberative care. The majority recognizes that Pennsylvania in 1900 adopted the rescue doctrine and opined that a rescuer could only be barred from recovery by acts on his part which were "unmistakable evidence of his rashness and imprudence.” Corbin v. City of Philadelphia, 195 Pa. 461, 469, 45 A. 1070, 1072 (1900). To have denied appellant the benefit of this standard in the charge to the jury was, in my opinion, error. Further, I would hold that the court erred in its charge with respect to causation and comparative negligence. Causation is not a separate consideration in determining the applicability of the rescue doctrine. In the first portion of the court’s charge above, the jury was correctly told that if one negligently places himself in a position [which invites rescue] he is liable to the person who, coming to the rescue, suffers injury. Thus, the jury must, in order to apply the doctrine, find that one has invited rescue, and that the rescuer has responded to the invitation. If the jury finds that the facts call for the imposition of the doctrine it has nécessarily resolved any issue as to causation on the part of the imperiled person. The only remaining question is whether the rescuer acted with rashness or imprudence. Corbin v. City of Philadelphia, supra; Altamuro v. Milner Hotel, Inc., 540 F.Supp. 870 (E.D. Pa. 1972); Simmons v. Pennsylvania Railroad CO., 2 Pa.D. & C.2d 233 (1955).

I would further depart from the majority by holding that there should be no application of comparative negligence since the rescuer is excused from ordinary negligence and there should be no attempt to measure the conduct of the rescuer unless it amounts to rashness or imprudence. On the other hand, if the jury were to conclude that the rescuer did act with rashness or imprudence there should be no recovery. I recognize that the majority follows existing authority from- other jurisdictions in its reliance on Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672 (1977); Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228 (Fla.Dist.Ct.App. 1978) but I conclude that the rescue doctrine, a unique theory of tort recovery, was not contemplated by and is not covered by the comparative negligence statute. (There are other instances where the comparative negligence statute does not supercede doctrines which permit recovery even in the face of a plaintiffs ordinary negligence — as for example, products liability or cases involving a defendant’s willful and wanton misconduct.)

Rather than rely on Cords, supra, and Ryder Truck, supra, I find the reasoning in a case which refused to follow these authorities far more compelling. Furka v. Great Lakes Dredge & Dock Co., 755 F.2d 1085 (4th Cir. 1985), involved a suit for the death of a seaman who drowned in an attempt to rescue a fellow employee on the Chesapeake Bay. The jury found for plaintiff in the amount of $1,200,000, but also found that the decedent was sixty-five percent contributorily negligent, thus reducing the verdict under applicable federal law to $420,000. Plaintiff appealed, alleging that the trial court committed reversible error when it charged the jury that the decedent’s conduct was to be judged by ordinary standards of negligence. The United States Court of Appeals for the Fourth Circuit, reversing on the ground that the charge to the jury, though not objected to by plaintiff, constituted plain and fundamental error, explained:

The submission to the jury of the question of Furka’s contributory negligence without reference to the special context of rescue ignored the very premise upon which appellant’s case was based. The instruction in this case failed to inform the jury that no contributory negligence may be inferred from a rescue attempt alone and further that no comparative fault may be assessed unless plaintiff’s conduct was wanton or reckless. As stated long ago by Justice Cardoza, “Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore the reactions of the mind in tracing conduct to its consequences. It recognizes them as normal.” Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437 (1921).
The common law doctrine of rescue may be succinctly stated: “[T]he law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness.” Scott v. John H. Hampshire, Inc., 246 Md. 171, 227 A.2d 751, 753-754 (1967), quoting Maryland Steel Co. v. Marney, 88 Md. 482, 42 A. 60, 66 (1898). See also Altamuro v. Milner Hotel, Inc., 540 F.Supp. 870 (E.D.Pa.1982); Brown v. National Oil Co., 233 S.C. 345, 105 S.E.2d 81 (1958); Andrews v. Appalachian Electric Power Co., 192 Va. 150, 63 S.E.2d 750 (1951). When confronted with an emergency, a rescuer “should not be charged with the consequences of errors of judgment resulting from the excitement and confusion of the moment____” Corbin v. Philadelphia, 195 Pa. 461, 45 A. 1070, 1074 (1900); see also Rodgers v. Carter, 266 N.C. 564, 146 S.E.2d 806, 810 (1966); Restatement (Second) of Torts § 470(1) (1965). In rescue, promptness may be prudence, and reflex may claim the seat of reason.
Whether or not there was a rescue attempt is, of course, a question for the jury. If the jury finds plaintiff engaged in a rescue, there must be evidence of wanton or reckless behavior on plaintiff’s part before any fault may be assigned. This is the standard traditionally applied to the conduct of plaintiffs in rescue situations. See, e.g., Scott v. John H. Hampshire, Inc., (standard of “dangerous but not reckless” behavior), 246 Md. 171, 227 A.2d 751, 753, citing Maryland Steel Co. v. Marney, 42 A. 60, 66 (“Rashness”); Brown v. National Oil Co., (“wanton or foolhardy”), 233 S.C. 345, 105 S.E.2d 81, 87; Andrews v. Appalachian Electric Power Co., (“rash” or “reckless”), 192 Va. 150, 63 S.E.2d 750, 757 Wagner v. International Ry. (“wanton”), 232 N.Y. 176, 133 N.E. 437, 438; Corbin v. Philadelphia, (“rashness and imprudence”), 45 A. 1070, 1073.
We reject appellee’s contention that these policies lose their force under the Jones Act, where the doctrine of comparative negligence applies damages proportionately. It is true that the “wanton and reckless” standard developed under the common law, where contributory negligence was a complete bar to recovery. In some comparative negligence jurisdictions, not in admiralty, the wanton and reckless standard has thus been diluted. See, e.g., Cords v. Anderson, 80 Wis.2d 525, 259 N.E.2d 672, 683 (1977); Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228 (Fla.App.1978). We do not think that is the appropriate course here. ... The wanton and reckless standard reflects the value society places upon rescue as much as any desire to avoid a total defeat of recovery under common law. Law must encourage an environment where human instinct is not insular but responds to the plight of another in peril. (Footnotes omitted.)

755 F.2d 1088-1089.

The Court of Appeals found no intention on the part of Congress to alter the salutary common law rescue doctrine, as exemplified by Corbin v. City of Philadelphia, supra, when Congress prQvided for the application of comparative negligence in the Federal Employers Liability Act (45 U.S.C. § 53), which was incorporated in the Jones Act (46 U.S.C. § 688). Neither can I find such an abrogative intention on the part of the Pennsylvania legislature when it passed the Comparative Negligence Act, 42 Pa.C.S. § 7102.

I would add that, if in fact, ordinary principles of legal causation apply, I would agree with the majority that the court’s charge that “Proximate means immediate, nearest, next in causal connection” was in error. I would, however, also find the error to be harmful so as to merit reversal. In the context of this case, an application of this definition leads inevitably to the conclusion that the negligence of appellant was the cause of the incident, since her negligence was clearly the most immediate, nearest, next in order and closest in causal connection as compared with the appellee’s negligence which was at the time passive in nature. That the jury struggled with the causation issue is demonstrated by the fact that they asked for further instructions as to the meaning of “substantial” and asked for a dictionary.

I would grant a new trial.

      . It is evident from our research that the definition of "proximate” employed by the court below was found in Black’s Law Dictionary 1103 (5th ed. 1979), which similarly defines the word as meaning, "Immediate; nearest; direct, next in order. In its legal sense, closest in causal connection.”

      . As is nonetheless clearly exemplified by this case, the word "proximate”, in both its definitional and connotative senses, may, at the very least, muddle a formulation for actionable causation. Therefore, we are of the opinion that in charging a jury with respect to causation in negligence cases, trial courts should refrain from utilizing the word “proximate”. It is wholly unnecessary to an accurate statement of the pertinent doctrine. Our position accords with that adopted by the Civil Instructions Subcommittee, which noted with regard to its proposed instruction for “Legal Cause”, Pa. SSJI (Civ) 3.25:
      [M]ost of the usual legal phrases have been jettisoned from the charge on legal cause. The term 'legal cause’ is retained to inform the jury that the plaintiff must also prove causation, and that not all causes are the ‘legal cause.’ But ‘proximate cause,’ a term that attempts to give substance to the distinction between factual cause and legal cause, but which 'means nothing to an ordinary jury,' Rodgers v. Yellow Cab Co., 395 Pa. 412, 422, 147 A.2d 611 (1959), has been deleted.

      . More than thirty years later, our supreme court’s own Justice Michael A. Musmanno, in setting forth Justice Cardozo’s above pronouncement, referred to him appropriately as "juristically immortal.” Cooper v. Reading R. Co., 370 Pa. 192, 201, 87 A.2d 916, 918 (1952) (Musmanno J., dissenting).

      . See McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972).

      . See generally, J. Palmer & S. Flanagan, Comparative Negligence Manual (rev. ed. 1971); V. Schwartz, Comparative Negligence (2d ed. 1986); Symposium, Comparative Negligence in Pennsylvania, 24 Vill.L. Rev. 419 (1979); Note, Comparative Negligence, 81 Colum.L.Rev. 1668 (1981).

      . See Thompson v. City of Philadelphia, 320 Pa.Super. 124, 134 n. 3, 466 A.2d 1349, 1354 n. 3 (1983), rev'd, 507 Pa. 592, 493 A.2d 669 (1985).

      . Florida is a "pure comparative negligence” jurisdiction. See Hoffman v. Jones, 280 So.2d 431 (Fla. 1973).

      . Inexplicably, Judge Cavanaugh, in his dissent, characterizes the rule announced today as "stripping” the rescue doctrine of the underlying principle that an imperiled person’s negligence should be actionable in rescue cases. Such a characterization fundamentally misapprehends the purpose and effect of our analysis herein. We have carefully left unaltered the fictive, yet necessary, link of causation which the rescue doctrine provides between an imperiled person’s negligence and a rescuing plaintiff’s volitional act. To do otherwise would quite clearly eradicate rescuers’ favored status in the eyes of the law.

        Indeed, by proposing to adhere to the traditional .element of the doctrine which defines a rescuer’s contributory negligence only in terms of rashness or wantonness, the dissent itself disregards the doctrine’s underpinnings and the recent evolution of our notions with respect to contributory negligence. By legislative enactment, contributory negligence is now a creature with a comparative sensibility. In so far as the rescue doctrine developed to soften the strict tenets of the contributory negligence rule in rescue cases, the doctrine must now similarly evolve. Comparative negligence applies ”[i]n all actions" of this sort, 42 Pa.C.S. § 7102, and its operation benefits injured rescuers in the same way as the rescue doctrine has in the past by lifting the absolute bar of one's contributory negligence.
      Furthermore, we note that the strict adherence proposed by the dissent would unfortunately result in denying any recovery to an injured rescuer who acts wantonly yet whose negligence, in, overall causative terms, is nevertheless less than, or equal to, the correlative negligence of the defendant.

      . In his dissent, Judge Cavanaugh views as inconsonant the lower court’s instruction as to legal causation and its rescue doctrine instruction. These instructions were clearly offered with respect to alternative theories of liability which have been argued before us and addressed herein as such. We see no inconsonance.