author: OLSZEWSKI, Judge:

text:
    580 A.2d 1367
    COMMONWEALTH of Pennsylvania v. Thomas B. BADMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 30, 1990.
    Filed Oct. 3, 1990.

      Elizabeth A. Beroes, Asst. Public Defender, Sunbury, for appellant.
    Robert B. Sacavage, Dist. Atty., Carmel, for Com., appellee.

      Before ROWLEY, MeEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence. The facts of this case, as summarized by the trial court, are as follows:

The [appellant] was found guilty of murder in the third degree by a jury. The victim was Patricia Gebhart, a thirty-three year old woman who was somewhat mentally retarded and somewhat physically handicapped. Her only income was from social security and disability benefits.
The trial record shows that the [appellant] and the victim had been dating for a period of time and there was a history of the defendant verbally and physically abusing the victim and obtaining money from her from time to time.
The victim was last seen alive in Sunbury on June 18, 1984, and on July 4, 1984 she was reported missing by her grandmother. The victim’s skeleton was discovered half buried in the bed of the Susquehanna River in Sunbury on April 18, 1985. John Oyster testified that in July of 1984 the [appellant] told him that he had beat up the victim and that “they” had buried the body.

Trial court opinion of August 29, 1989, at 1-2. The evidence presented at trial showed that the victim had been consistently abused verbally, physically, sexually, and financially by appellant and other persons. Evidence at trial indicated that the victim intended to marry appellant, but that appellant had no intentions of marrying the victim.

Appellant testified in his own defense that he did not kill the victim or bury her. He did, however, admit that he took money from the victim on at least one occasion, and admitted taking pills from her. Following a jury trial, appellant was convicted of third-degree murder.

Appellant’s post-verdict motions were denied; his ineffectiveness claims were heard separately and denied. Appellant was then sentenced to a term of imprisonment of between ten and twenty years. Appellant’s motion to modify sentence was denied, new counsel was then appointed, and a subsequently filed petition to appeal nunc pro tunc was granted. Appellant now presents ten issues for our consideration:

1. Whether the Court erred in admitting the testimony of the Commonwealth Expert witness, a forensic pathologist, whose opinions were based on facts not in evidence, thereby prejudicing Defendant.
2. Whether the Commonwealth impermissively (sic) impeached a defense witness on collateral matters and whether the Court therefore erred in allowing the jury to consider it.
3. Whether the Trial Court and Trial Attorneys erred by permitting Hearsay statements made by the decedent/victim into evidence which was improperly considered by the jury.
4. Whether the Trial Court and Trial [Attorneys erred by permitting the Commonwealth to assassinate the cha[r]acter of the defendant with specific instances of conduct occurring at remote times before the defendant took the stand and before the defense placed the character of defendant in issue.
5. Whether the Trial Court and Trial Attorneys erred by permitting the Commonwealth to present irrelevant and inflammatory evidence regarding Beatrice Long.
6. Whether the Trial Court erred in denying defendants Motion to Dismiss because the Information in this case was unconstitutionally vague and lacked the requisite specifi[ci]ty.
7. Whether the Court erred in denying Defendant’s Motion for New Trial after repeated prosecutorial misconducts in the District Attorney’s closing argument.
8. Whether the evidence in this case was insufficient in weight resulting in a verdict contrary to sustain a finding of guilt.
9. Whether trial counsel was ineffective and thereby prejudicing Defendant’s rights to a fair trial and resulting in unreliable verdict.
10. Whether the trial Court abused its discretion and ordered Defendant to serve a manifestly excessive sentence.

Appellant’s brief, at 4. As we find no merit to any of appellant’s issues, we affirm the judgment of sentence.

Appellant’s first issue concerns whether the court erred in admitting the testimony of the Dr. Herbert Filling-er, a forensic pathologist, whose opinions were based on facts not in evidence, thereby prejudicing defendant. We have examined appellant’s post-verdict motions and the trial court opinions. Appellant did not raise this issue in post-verdict motions and, to the best of our knowledge, the trial court did not have the opportunity to consider this issue. Appellant has therefore waived this argument on appeal. See Commonwealth v. Gordon, 364 Pa.Super. 521, 528 A.2d 631 (1987) (per curiam), allocatur denied, 517 Pa. 621, 538 A.2d 875 (1988).

Appellant’s second argument on appeal concerns whether the Commonwealth impermissibly impeached defense witness Sharon Walter on collateral matters. Sharon Walter testified at appellant’s trial as a defense witness. The testimony she gave completely contradicted the story she had told, under oath, at three separate preliminary hearings. A witness may always be questioned concerning bias. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968). A witness’s credibility may be impeached with evidence of her prior statements which are inconsistent with her testimony at trial. Commonwealth v. Baez, 494 Pa. 388, 431 A.2d 909 (1981); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978) (substantial inconsistency). As the impeachment was introduced concerning the issue of the witness’s credibility, we find that the trial court did not abuse its discretion in allowing the impeachment, and find appellant’s second issue to be without merit.

Appellant’s third issue concerns whether the trial court and trial attorneys erred by allowing the introduction into evidence of statements which the victim had made. As appellant made no contemporaneous objection at trial, this issue is waived. Commonwealth v. Myer, 340 Pa.Super 176, 489 A.2d 900 (1985).

Appellant’s fourth issue concerns whether the trial court and trial attorneys erred by permitting the Commonwealth to assassinate the character of the defendant with specific instances of conduct occurring at remote times before the defendant took the stand and before the defense placed the character of defendant in issue. As appellant did not make a contemporaneous objection to the introduction of this evidence or seek an appropriate limiting instruction, this issue is waived. See Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980). We further note that, even were we to reach this issue, we would find that the trial court did not err, as the evidence was admissible to show appellant’s prior course of conduct toward the victim. Cruz, supra.

Appellant’s fifth issue concerns whether the trial court and trial attorneys erred by permitting the Commonwealth to present irrelevant and inflammatory evidence regarding Beatrice Long. Appellant argues that the introduction of evidence pertaining to Beatrice Long, who was charged as a co-conspirator in the murder of Patty Gebhardt, was an attempt to prove appellant’s guilt by association. Appellant fails to consider that a defendant takes full responsibility for the acts of his co-conspirators. See Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973). The evidence concerning Beatrice Long was relevant, and properly admitted. We therefore find appellant’s fifth issue to be without merit.

Appellant’s sixth issue concerns whether the trial court erred in denying defendant’s motion to dismiss because the information was unconstitutionally vague and lacked the requisite specificity. A criminal information must inform the accused of the crime with which he is being charged. Cf. Commonwealth v. Lee, 454 Pa. 526, 312 A.2d 391 (1978) (Eagen, J., concurring) (indictments). The information should be read in a common sense manner, rather than being construed in an overly technical sense. Cf. Commonwealth v. Pope, 455 Pa. 384, 390, 317 A.2d 887, 890 (1974) (indictments).

We most emphatically reject appellant’s assertion that the statement that he did “kill or take part in the killing” of Patricia Gebhart failed to inform him of the crime with which he was being charged. The information clearly showed that the beating and eventual murder of the victim was the underlying transaction appellant was charged with. In a case such as this, where the Commonwealth understandably lacked the knowledge and ability to give a specific moment-by-moment description of how the crime occurred, the information contained in the information was more than sufficient to inform appellant of the crime with which he was charged. Further, we find that as the information filed against appellant specified the underlying transaction, the cases he cites, Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979) (per curiam), and Commonwealth v. Russell, 261 Pa.Super. 161, 395 A.2d 1365 (1978), support affirming, rather than reversing, the trial court’s determination.

Appellant’s seventh issue concerns whether the trial court erred in denying his motion for new trial based on allegations of prosecutorial misconduct. Appellant’s complaint centers around the prosecutor’s repeated references during closing argument to what he termed a “defense of distraction.” In reviewing an allegation of prosecutorial misconduct, we are guided by the words of our Supreme Court, which has stated that comments made by a prosecutor

do not constitute reversible error unless the ‘unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.’

Commonwealth v. Anderson, 501 Pa. 275, 282, 461 A.2d 208, 211 (1983); Commonwealth v. Yabor, 376 Pa.Super. 356, 546 A.2d 67 (1988), allocatur denied, 521 Pa. 620, 557 A.2d 724 (1989). We will reverse the trial court’s determination only if we find an abuse of discretion. Anderson, supra.

We have inspected the comments appellant complains of. They do not constitute a statement of the prosecutor’s personal opinion regarding appellant’s guilt or innocence, nor are they improper statements of the evidence. In its opinion, the trial court cites Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981). In Youngkin the prosecutor, in closing, analogized the defendant’s strategy to “creating smoke.” The court in Youngkin found that the comments regarding smoke did not, by themselves, inflame the passions and prejudices of the jury such as to warrant a new trial. The trial court in this case found the reasoning of Youngkin applicable, and found that the remarks of the prosecutor were not so prejudicial as to require a new trial. We find no abuse of discretion, and find appellant’s seventh issue to be without merit.

Appellant’s eighth issue concerns “whether the evidence in this case was insufficient in weight resulting in a verdict contrary to sustain a finding of guilt.” Appellant’s brief, at 3. We believe appellant is attempting to make two separate arguments here: first, that the evidence was insufficient to support a finding of guilty, and second, that the verdict was against the weight of the evidence. We shall deal with appellant’s sufficiency of the evidence claim first.

In reviewing sufficiency of the evidence claims, we look to whether,

viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.

Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075 (1987). While a conviction cannot be supported by mere suspicion and conjecture, the Commonwealth need not establish guilt to a mathematical certainty; evidence will be sufficient if it establishes that the circumstances are consistent with criminal activity. Commonwealth v. Favinger, 358 Pa.Super. 245, 516 A.2d 1386 (1986), allocatur denied, 516 Pa. 612, 531 A.2d 779 (1987); Commonwealth v. Herman, 227 Pa.Super. 326, 323 A.2d 228 (1974). A criminal conviction can be based on purely circumstantial evidence. Commonwealth v. Sadusky, 484 Pa. 388, 399 A.2d 347 (1979); Herman, supra.

Appellant’s argument seems to be that there was insufficient evidence from which the jury could have found the element of malice, which is required to convict someone of murder of the third degree. We simply cannot agree. Malice is defined as

either [ ] an express intent to kill or inflict great bodily harm, or of a ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty’ indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963)

Commonwealth v. Taylor, 461 Pa. 557, 559, 337 A.2d 545, 546 (1975), quoting Commonwealth v. Boyd, 461 Pa. 17, 23, 334 A.2d 610, 613 (1975); Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438 (1990).

We will point to only two pieces of evidence: the testimony of John Oyster, that appellant told him that “he had beat up the victim and that ‘they’ had buried the body[,]” trial court opinion, at 2, and the evidence that appellant had repeatedly abused the victim, verbally, physically, sexually, and financially. In Commonwealth v. Matthews, 480 Pa. 33, 36, 389 A.2d 71, 73 (1978), our Supreme Court stated “We cannot say that the fact-finder erred in concluding that a full-grown adult who repeatedly used excessive force upon a child of such tender years evidenced an extreme indifference to the value of human life.” Likewise, in this case, we cannot say that the jury erred, considering the evidence presented, in finding appellant guilty of third-degree murder. Appellant’s sufficiency of the evidence claim is therefore without merit.

We now turn to appellant’s weight of the evidence claim. The determination whether to grant a new trial on the ground that the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Before a trial court may award a new trial on this ground, it must appear that the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative. Commonwealth v. Gamber, 352 Pa.Super. 36, 45, 506 A.2d 1324, 1329 (1986); Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). When the challenge to the weight of the evidence is predicated on the credibility of the trial testimony, our review of the trial court’s decision is extremely limited. Generally, unless the evidence “is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture,” Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976) (citations omitted), these types of claims are not cognizable on appellate review.

Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989). While our Supreme Court has stated that “a challenge to the weight of the evidence is not appealable[,]” Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989), we shall consider the merits of appellant’s weight of the evidence argument. See Commonwealth v. McLean, 396 Pa.Super. 23, 28 n. 4, 578 A.2d 4, 7 n. 4 (1990). Appellant makes no argument concerning his weight of the evidence claim, save for the statement “It can be concluded that the ... verdict was contrary to the weight of the evidence.” Appellant’s brief, at 45. While appellant’s lack of argument provides little help, our own inspection of the record, the briefs, and the trial court opinions convinces us that appellant’s weight of the evidence claim has no merit whatsoever. As appellant’s sufficiency and weight of the evidence claims fail, we find his eighth issue to be without merit.

Appellant’s ninth issue is an ineffectiveness claim. Appellant raises five claims of ineffectiveness. First, he claims that “[t]here was no reasonable basis for counsel to overlook the errors made during the testimony of Dr. Fillinger and in failing to present evidence as to the actual water levels of the river bank where the skeletal remains were found.” Second, he claims that “[t]here was no reasonable basis for failing to object to the impeachment of Sharon Walters which strayed the minds of the jury away from their client (sic) and thereby, sending a message to the jury that such impeachment was permissible.” Third, he claims that “there was no reasonable basis for failing to object to the damaging hearsay statements made by decedent which were per se prejudicial.” Fourth, he claims that “there was no reasonable basis for failing to object to the specific acts of misconduct brought out by the prosecutor long before the [appellant] ever put his character in issue again constituting per se prejudice.” Fifth, he claims that “there was no reasonable basis for failing to object to, and thereafter, failing to move for a mistrial following the prosecutor’s opinionated closing remarks.” As we have already discussed, the claims underlying appellant’s second, third, fourth, and fifth claims have no arguable merit. See supra. While we found the claim underlying appellant’s first claim waived, we would note that we have examined the evidence and the briefs, and find that this claim is also lacking arguable merit. Appellant’s ineffectiveness claim must therefore fail. See Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

Appellant’s final issue concerns whether the trial court abused its discretion and ordered appellant to serve a manifestly excessive sentence. We note that appellant has not complied with the dictates of 42 Pa.C.S.A. § 9781(b), Pa.R.A.P. 2119(f), and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). We also note, however, that the Commonwealth has not objected to appellant’s failure to comply with these procedural requirements. This defect in appellant’s brief is therefore waived. See Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).

Assuming, arguendo, that appellant has raised a substantial question concerning the appropriateness of his sentence, we would note that the trial judge was aided by a presentence report, and stated his reasons on the record at the time sentence was imposed. We therefore find appellant’s tenth issue to be without merit. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).

As none of the issues presented in this appeal possess merit, we affirm the judgment of sentence.

Judgment of sentence affirmed.

McEWEN, J., concurs in the result.

      . We note that appellant’s statement of questions involved encompasses 32 lines of text, and takes up two pages of his brief. This is a violation of Pa.R.A.P. 2116, which states that the statement of questions involved
      must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception^]
      Pa.R.A.P. 2116 (emphasis added). We will proceed to consider the merits of the issues raised by appellant, but caution counsel to comply with the appropriate rules in future appeals. We are further reminded that the Honorable Ruggero J. Aldisert of the United States Court of Appeals for the Third Circuit has stated:
      ‘With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.’

        United States v. Hart, 693 F.2d 286, 287 n. 1 (3d Cir.1982), quoting Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility—A View From the Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982).

      . If the addition of the statement "and trial attorneys” in appellant's statement of questions presented and argument headings is intended to bootstrap this issue into a second issue, arguing appellant’s counsel’s ineffectiveness, we find this limited reference insufficient to carry forward an ineffectiveness argument. If indeed this is an attempt to argue trial counsel’s ineffectiveness, we find the issue waived because no argument is presented in the body of the brief concerning alleged ineffectiveness. See Commonwealth v. Smith, 389 Pa.Super. 606, 567 A.2d 1070 (1989); Commonwealth v. Anderson, 381 Pa.Super. 1, 13 n. 3, 552 A.2d 1064, 1070 n. 3 (1988).

      . To the extent that appellant’s miniscule reference to trial counsel is an attempt to bootstrap an ineffectiveness claim, appellant has waived this issue by failing to carry forward any argument. See n. 2, supra.

      . To the extent that appellant’s miniscule reference to trial counsel is an attempt to bootstrap an ineffectiveness claim, appellant has waived this issue by failing to carry forward any argument. See n. 2 & n. 3, supra.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    580 A.2d 1374
    Harvey Lee KEECH and Suzanne M. Keech, Individually and as Parents and Natural Guardians of Daniel Keech, a Minor, Appellants, v. MEAD JOHNSON AND COMPANY, Bristol-Myers U.S. Pharmaceutical and Nutritional Group, Mead Johnson Nutritionals, a/k/a Mead Johnson Nutritional, a/k/a Mead Johnson Nutritional Division, a/k/a Mead Johnson Nutritionals Division, a/k/a Mead Johnson and Company, a/k/a Bristol-Myers Company and Bristol-Myers Company and Donald S. Schwartz, M.D. and Joan M. Magee, M.D. and Donald S. Schwartz, M.D. and Joan M. Magee, M.D., a Partnership, a/k/a Schwartz and Magee, a Partnership, Appellees.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed Oct. 12, 1990.

      Robin T. Locke, Philadelphia, for appellants.
    William D. Dienna, Norristown, for Magee, appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections in the nature of a demurrer of the defendant, Joan M. Magee, M.D. Plaintiffs/appellants are Harvey Lee Keech and Suzanne M. Keech, individually and as parents and guardians of Daniel Keech, a minor. We affirm.

“As is our function upon an appeal from a decision of the court below sustaining preliminary objections in the nature of a demurrer, we must accept as true every relevant fact sufficiently averred in the plaintiffs’ complaint together with every inference favorable to the non-moving party which is fairly deducible therefrom.” Ganassi v. Buchanan Ingersoll, P.C., 373 Pa.Super. 9, 11, 540 A.2d 272, 273 (1988) (Citation omitted).

The record indicates that a praecipe for the issuance of a writ of summons was filed on May 18, 1988, with separate service made upon “Schwartz and Magee, a partnership”, “Joan M. Magee, M.D.” and “Donald S. Schwartz, M.D.” All summonses were received by Doctor Schwartz at the same address, and, as is herein relevant, as to the “Joan M. Magee, M.D.” summons, the face sheet completed by the deputy sheriff reveals that service was made upon “Dr. Donald Swartz [sic] M.D. Partner”. Also, the caption of the summons and the address to which the writ had to be served named as individual defendants “Donald S. Schwartz, M.D., Joan M. Magee, M.D. and Donald S. Schwartz, M.D. and Joan M. Magee, M.D. a partnership a/k/a Schwartz and Magee, a partnership”.

An appearance was filed by Margaret Mary Maguire, Esquire for the defendant Joan M. Magee, M.D. on June 20, 1989. Fifteen days later, separate counsel entered his appearance for the “Defendants, Donald S. Schwartz, M.D. and Schwartz Magee Partnership”. A praecipe for a rule to file a complaint was submitted by counsel for Doctor Magee to the prothonotary. Thereafter, a rule was entered and a four-count complaint was filed reciting, in relevant part, that:

16. On and before May 18, 1987, a minor Daniel Keech was under the pediatric care of Donald S. Schwartz, M.D., Joan Magee, M.D. and the partnership of Donald S. Schwartz, M.D. and Joan Magee, M.D.
17. On and before May 18, 1987, defendant Donald S. Schwartz, M.D. prescribed Poly-Vi-Flor for Daniel Keech and defendants Joan Magee, M.D. and Donald S. Schwartz, M.D. cared for and treated Daniel Keech.
19. At all relevant times, the Poly-Vi-Flor tablet was used by plaintiffs herein for minor child Daniel Keech pursuant to and in compliance with the instructions of defendants.
20. On or about May 18, 1987, while Daniel Keech was swallowing the Poly-Vi-Flor tablet designed, manufactured, marketed, distributed, sold and prescribed by defendants, Daniel Keech suddenly and without warning choked on the Poly-Vi-Flor tablet, causing him to be unable to breathe.
21. As a result of the ingestion of the Poly-Vi-Flor tablet on or about May 18, 1987, plaintiff Daniel Keech suffered massive brain damage and anoxic encephalopathy, resulting in severe and permanent physical, mental and emotional disabilities which will limit his ability to enjoy life and will require intensive and long standing physical and occupational therapy and total and permanent supportive life time care.

Counts I, II and III were preoccupied with holding the manufacturer/distributors accountable for the injuries sustained by Daniel Keech under theories of strict liability, breach of (express and implied) warranty and negligence. In count IV of the complaint, the plaintiffs alleged that Doctors Schwartz and Magee, “both jointly and individually”, were negligent in the care and treatment of the minor-child, and they listed nineteen instances to demonstrate the claimed negligence.

On August 3, 1989, counsel for Doctor Magee filed preliminary objections raising a question of venue, seeking a motion to strike and in the nature of a demurrer. In the latter pleading, Doctor Magee argued that, inasmuch as the claim against her was “based upon the allegations that she was aware that Donald S. Schwartz, M.D. had prescribed Poly-Vi-For [sic] for Daniel Keech”, the plaintiffs’ complaint failed to state any cause of action against her upon which the court could grant relief. As such, she requested that the complaint against her be dismissed. See Paragraphs 16 & 17.

In response to Doctor Magee’s preliminary objections, in particular paragraph 16, the plaintiffs answered as follows:

16. Admitted in part but denied as incomplete. Plaintiffs believe and therefore aver that defendants Donald S. Schwartz, M.D. and Joan M. Magee, M.D. are partners and that defendant Joan M. Magee treated the minor plaintiff Daniel Keech during the relevant time period. As a partner of Donald S. Schwartz, M.D., Joan M. Magee, M.D. is liable for misconduct of the partnership. Furthermore, as Dr. Schwartz’s partner and a treating physician, she is liable for her failure to warn Daniel Keech’s parents about the dangers of Poly-Vi-Flor tablet and/or to take steps to halt the prescribing of the Poly-Vi-Flor tablet for Daniel Keech. See paragraph 35 of the Plaintiffs’ Complaint which is incorporated by reference as if fully set forth herein.

Additionally, Attorney Jerome E. Ornsteen filed an answer on behalf of “Donald S. Schwartz, M.D. and Schwartz Magee Partnership” in which it was denied that Doctor Schwartz was either a partner with Doctor Magee or that such an entity as “Schwartz and Magee” as a partnership existed. See Paragraphs 13 & 16. Further, in their Memorandum of Law in opposition to Doctor Magee’s preliminary objections, the plaintiffs contended that Doctor Magee and Schwartz were partners, and, therefore, were “legally responsible” for the other’s “misconduct and mistreatment” of the minor-plaintiff. Lastly,, the plaintiffs averred that Doctor Magee, as Daniel’s pediatrician, failed in her duty to “advise, instruct and warn” them about the choking hazard for young children and the dangers of the Poly-Vi-Flor tablet.

By order dated November 15, 1989, the preliminary objections of the defendant Joan M. Magee, M.D., in the nature of a demurrer, were sustained, and, as a result, the plaintiffs’ complaint was dismissed as to the defendant Joan M. Magee, M.D. Of interest is the fact that on the face of the November 15th order appears the following verbiage, handwritten by the court below, that: “No cause of action stated as to Joan M. Magee, individually”. In its opinion in support of its order, the court wrote:

The only allegation against Dr. Magee is that she cared for Daniel Keech and was aware that Dr. Schwartz had prescribed Poly-Vi-Flor for Daniel. This “awareness” on the part of Dr. Magee is not causually [sic] related to Daniel Keech’s injuries. If there is any liability in prescribing vitamins, it rests exclusively with Dr. Schwartz, the prescribing physician.
There being no cause of action stated against Dr. Magee individually, her demurrer was sustained and Plaintiffs Complaint was dismissed as to Defendant Ma-gee.

Lower Court Opinion at 2 (Emphasis added). Once the order in question was reduced to judgment, the plaintiffs perfected an appeal to this Court.

Preceding an examination of the claims of the plaintiffs, we broach the subject of the appealability of the order since the entire litigation has not terminated with the dismissal of Joan M. Magee, M.D. from the lawsuit. Normally, this would signal the presence of an interlocutory order. However, instantly, the grant of Joan M. Magee, M.B.’s preliminary objections in the nature of a demurrer removes her from the lawsuit, and terminates the litigation against her by the plaintiffs in her “individual” capacity. Thus, such an action by the court below constitutes a final appeal-able order. See U.S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 628, 487 A.2d 809, 813 (1985) (The dismissal of a complaint as to one defendant upon its preliminary objections is a final appealable order).

The appellants raise four issues for our consideration. The first to be addressed is framed as follows:

Was it error to dismiss plaintiffs’ medical malpractice action against Joan M. Magee, M.D. where plaintiffs alleged that Dr. Magee breached her duty to provide appropriate pediatric care to young Daniel Keech and that Daniel sustained injury as a result thereof?

To start with, we would observe that to establish a case of malpractice requires evidence of “ ‘a negligent or unskillful performance by a physician of the duties which are devolved and incumbent upon him on account of his relations with his patients, or of a want of proper care and skill in the performance of a professional act’.” Hodgson v. Bigelow, 335 Pa. 497, 504, 7 A.2d 338, 342 (1939); see also Collins v. Hand, 431 Pa. 378, 246 A.2d 398, 400-401 (1968).

It is the appellants’ contention that Doctor Magee breached her physician-patient duty to Daniel Keech by failing to prescribe an alternative medicine (powder or liquid in form) or advising the child’s parents of the choking hazard to children between two and four years of age who ingest the medication in question.

There is a paucity of cases to guide us in our decision. Even the appellants’ citation to Cross v. Huttenlocher, 185 Conn. 390, 440 A.2d 952 (1981), to buttress their argument that Doctor Magee was negligent in not advising the parents of the minor-child of the hazardous nature of the Poly-Vi-Flor tablet, is not supportive of such a contention.

In Cross, the Connecticut Supreme Court reversed the trial court’s directed verdict in favor of the defendant Doctor Huttenlocher, who had failed to warn young Elizabeth Cross’ parents of the risk of blindness associated with the drug Atabrine.

The appellants portray Doctor Huttenlocher as one who did not prescribe any of the drug to the child, yet the Connecticut court found that the jury should have been allowed to weigh and to sift all the evidence in the case relating to his failure to warn. The case was remanded for a new trial. We view the case in a different light. For example, in Cross, the case was concerned with a physician’s duty to a patient who took a potentially dangerous prescription drug pursuant to the physician’s direction.

Further, there was evidence in Cross that' Doctor Huttenlocher notified the child’s then attending physician, whom she started seeing because of the inconvenience of traveling to Doctor Huttenlocher’s office, and advised him that the child “was to continue to use” the drug. Moreover, on a subsequent occasion, when the youngster’s mother requested a copy of the child’s latest prescription to facilitate her admission into the Hartford Regional Center, “[hjis [Dr. Huttenlocher’s] response included a prescription for Atabrine.”

Instantly, unlike in Cross, there is no allegation that Doctor Magee at any time prescribed or even recommended the use of the complained-of drug for or to the minor-child. On the contrary, the appellants concede in their complaint and appellate brief that it was Doctor Schwartz who “prescribed” the Poly-Vi-Flor. Thus, on the strength of Cross, we are not persuaded to endorse the appellants’ position that Doctor Magee had a duty to advise of the claimed dangers attendant to the prescription drug, Poly-Vi-Flor. See Complaint, Paragraphs 17 & 18.

In fact, in Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985), a panel of this Court ruled that the doctrine of informed consent, i.e., disclosing to a patient all of the facts, risks and alternatives associated with a recommended treatment, did not apply to the administration of therapeutic drugs with known potentially dangerous side effects by a doctor to his/her patient. The Court reasoned that the duty to obtain informed consent to treatment is rooted in the rule that any touching of a patient by a physician is technically a battery unless it is done with the patient’s known consent. Gray v. Grunnagle, 423 Pa. 144, 155, 223 A.2d 663 (1966); Levenson v. Souser, 384 Pa.Super. 132, 138, 557 A.2d 1081, 1086 (1989) (en banc) (informed consent cases continued to be viewed as a battery action rather than within the conceptual framework of negligence); see also Karibjanian v. Thomas Jefferson University Hospital, 717 F.Supp. 1081, 1084 (M.D.Pa.1989). Since there was no touching of the patient by the doctor in the administering of prescription drugs, there was no battery requiring the necessity of securing informed consent before treating the patient. See Karibjanian, supra; cf. Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803 (1980) (Plurality).

Based on the pleadings submitted by the appellants, viewed in a light most favorable to the non-moving party, Doctor Magee did not “prescribe” the medication claimed to have caused massive brain damage and anoxic encephalopathy, resulting in severe and permanent disabilities to Daniel Keech. At most, Doctor Magee was “aware” of the drug prescribed by Doctor Schwartz. Viewed in this perspective, one cannot say that Doctor Magee was “involved” in either the initial decision to prescribe or even had input to the continuing use of Poly-Vi-Flor to hold her accountable for what occurred. Compare Easter v. Hancock, 237 Pa.Super. 31, 37, 346 A.2d 323, 328 (1975). As a result, we fail to detect the breach of a legal duty to warn the patient by Doctor Magee. Compare Riff v. Morgan Pharmacy, 353 Pa.Super. 21, 508 A.2d 1247 (1986). As such, we find no merit in the appellants’ failure-to-advise/warn argument, cf. Boyer, supra, since the pleadings did not aver an increased risk of harm to the minor caused by Doctor Magee’s failure to warn. The necessary proximate cause would not have been made out to allow the finder-of-fact to decide whether the increased risk was in turn a substantial factor in bringing about the resultant harm. See Jones v. Montiore Hosp., 494 Pa. 410, 431 A.2d 920 (1981).

Our initial ruling, of necessity, disposes of the appellants’ argument that Doctor Magee is liable for her omission in failing to protect the minor from the “hazards” of Poly-ViFlor.

The third contention of the appellants, i.e., was it error to dismiss their complaint against Doctor Magee despite her claimed liability for the negligent acts of her partner/Doctor Schwartz, is equally unpersuasive.

We do not find fault with the appellants’ recitation of the law on the subject of the liability of one partner for the tortious conduct of the other partner(s). In particular, 59 Pa.C.S. §§ 325 & 327 of the Uniform Partnership Act; each provides:

§ 325 Wrongful Act of Partner
Where, by any wrongful act or omission of any partner acting in the ordinary course of business of a partnership ... loss or injury is caused to any person ... the partnership is liable therefor to the same extent as the partner so acting or omitting to act.
§ 327 Nature of Liability of Partner
All partners are liable:
(1) Jointly and severally, for everything chargeable to the partnership under section 325 (relating to wrongful act of partner)____

The same holds true with the appellants reference to McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949), wherein the Supreme Court made it clear that physicians and surgeons, as other individuals, are subject to the law of agency. To the same effect see Fanelli v. Adler, 131 App.Div.2d 631, 516 N.Y.S.2d 716 (1987); Zuckerman v. Antenucci, 124 Misc.2d 971, 478 N.Y.S.2d 578 (1984); Flynn v. Reaves, 135 Ga.App. 651, 218 S.E.2d 661 (1975).

However, the appellants fail to grasp the crucial point that the grant of Doctor Magee’s preliminary objection dismissing her from the lawsuit did so in her “individual” capacity. She still remains in the litigation as a “partner” in the averred association of “Schwartz and Magee”. As such, she can still be held accountable for the wrongful/negligent acts of Doctor Schwartz committed in furtherance of the partnership. See Levy v. First Pennsylvania Branch, N.A., 338 Pa.Super. 73, 487 A.2d 857 (1985). But, because the legal distinction between an “individual” and a “partnership” remains in existence, just as a stockholder is distinct from the corporation in which one owns shares, see Union National Insurance Co. v. M. London, Inc., 337 Pa.Super. 526, 538-42, 487 A.2d 385, 391-392 (1985), there is no justification to retain Doctor Magee in the case in her capacity as an individual when her nexus with the case remains with her partnership capacity with Doctor Schwartz.

The last of the appellants’ protestations is that the court erred in not offering them the opportunity to amend their complaint to cure any defects. The short answer to the assertion was stated properly in the appellee’s brief at 12-13, which we quote with approval:

... A decision to permit an amendment to a pleading is a matter committed to the discretion of the trial court. W.I. Snyder Corp. v. Caracciolo, 373 Pa.Super. 486, 541 A.2d 775, 778 (1988). The lower Court did not abuse its discretion in this case. The plaintiffs had an opportunity to amend their Complaint as a matter of course within ten days after the filing of Doctor Magee’s objections. Pa.R. C.P. No. 1028. The plaintiffs failed to do so. In their response to Doctor Magee’s Demurrer (R. 29a-36a) the plaintiffs asked only that the demurrer be overruled. The plaintiffs at no time asked that the Court allow leave to amend the complaint if the demurrer was sustained. And in this appeal, as in the lower Court, the plaintiffs have failed to set forth any material averments which, if allowed to be added to the complaint, would support a cause of action against Doctor Magee individually. Where the allowance of an amendment would be a futile exercise, the complaint may properly be dismissed without allowance for amendment. Carlino v. Whitpain Investors, 499 Pa. 498, 453 A.2d 1385, 1388 (1982) (Decision not to permit amendment is proper where plaintiffs described their proposed amendments, and same remained legally insufficient).
In the present action the plaintiffs did not request leave to amend in the event that Doctor Magee’s demurrer was sustained. The plaintiffs did not request that the lower Court reconsider its order sustaining the demurrer, and the plaintiffs have alleged nothing which would indicate that allowance of an amendment would be anything more than a futile exercise____

Finding no merit in any of the appellants’ claims, we affirm the lower court’s grant of the appellee’s preliminary objections in the nature of a demurrer.

Order affirmed.

BECK, J., concurs in the result.


author: KELLY, Judge.

text:
    580 A.2d 1379
    COMMONWEALTH of Pennsylvania v. Keith SHAW, Appellant
    Superior Court of Pennsylvania,
    Submitted June 18, 1990.
    Filed Oct. 18, 1990.

      Harvey L. Anderson, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, MONTEMURO and KELLY, JJ.
   KELLY, Judge.

In this appeal, we are called upon to determine whether a defendant is denied due process of law where the trial judge failed to disclose that he had previously accepted bribes from other defendants. We find no due process violation instantly, and affirm.

The facts and procedural history may be set forth as follows. On January 8, 1986, appellant was arrested and charged with robbery, theft and assault following an altercation in a bar. Appellant was tried and convicted of these charges after a bench trial. Appellant thereafter was sentenced but no subsequent review of the judgment of sentence was sought.

Subsequently, appellant filed the instant petition under the Post-Conviction Hearing Act. New counsel was appointed to represent him, and he filed an amended petition which was denied. This timely appeal followed.

On appeal appellant raises the following issues: 1) whether appellant was denied due process of law, where, in a non-jury trial in which he was found guilty, the trial judge failed to disclose that he demanded and/or accepted bribes from other defendants in 1986, at or near the time of appellant’s trial, in order to render results favorable to bribe-paying defendants, and whether the appearance of impropriety requires a new trial, and 2) whether trial defense counsel rendered ineffective assistance of counsel where in a highly contested case he failed to call all of the witnesses to testify, where one available witness would be an employee of the bar where the incident occurred.

Initially, appellant contends that he was denied due process by the trial judge’s failure to reveal that he had been taking bribes in other cases, thus preventing appellant from obtaining knowledge of grounds for a recusal. We cannot agree.

In Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), allocatur denied, 522 Pa. 583, 559 A.2d 526 (1989), this author opined,

[I]n order for appellant to prevail, he must establish there was a nexus between the activities being investigated by the JIRB and the trial judge’s conduct at trial. Cf. Johnson v. Johnson, 424 P.2d 414 (Okl.1967) (the petitioner had the burden of convincing a constitutional majority of the Oklahoma Supreme Court that the judgment under review clearly was entered under circumstances of judicial wrongdoing, i.e. the former justice accepted a bribe in return for his vote). Moreover, even where appellant demonstrates the above requirement, he must still allege and establish that bias, prejudice or partiality infected the [fact finder] or otherwise deprived him of a fair trial.

551 A.2d at 1084, 1085.

Applying this standard instantly, we find no merit in appellant’s claim. Appellant’s claim of bias, i.e. that because the trial judge “solicited and received bribes” in some cases, he had to convict without regard to guilt or innocence in other cases to “show [ ] that there is a real need for the bribe to obtain a favorable result,” see Appellant’s Brief at 9, is wholly unsubstantiated in the record before this Court on appeal. Appellant’s mere speculation is not sufficient. See Commonwealth v. Hewett, supra, 551 A.2d at 1083. Moreover, no ruling of the trial judge and no specific event or incident which occurred during the trial gave rise to any question as to the trial judge’s objectivity or to the propriety of his rulings. See id. at 1085. As appellant has been unable to establish actual prejudice resulting from the trial judge’s extrajudicial conduct, this claim fails. See id.; In the Matter of: Judicial Inquiry and Review Board v. Snyder, 514 Pa. 142, 155, 523 A.2d 294, 300, cert. denied, 484 U.S. 829, 108 S.Ct. 100, 98 L.Ed.2d 61 (1987) (Nix, C.J., concurring); Commonwealth v. Weeks, 381 Pa.Super. 411, 554 A.2d 68 (1989); Commonwealth v. Curtain, 365 Pa.Super. 424, 529 A.2d 1130 (1987).

Appellant’s second contention is that trial counsel was ineffective for failing to investigate, interview, and produce certain witnesses at trial. Appellant’s claim is entirely without merit.

The standard for ineffectiveness of counsel claims is well settled. In order to establish a claim of ineffectiveness, appellant must establish that:

“... by act or omission, counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interest, and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 374, 534 A.2d 483, 485 (1987); Commonwealth v. Pierce, 515 Pa. 153, 155-156, 527 A.2d 973, 975-76 (1987).

Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990). Moreover, in order to deem counsel’s failure to call a particular witness’ ineffectiveness, there must be a showing that the testimony of such witnesses would have been helpful in establishing appellant’s defense. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989).

Instantly, the witnesses appellant claims counsel should have called would have offered no more than cumulative testimony to the testimony offered by the witnesses counsel did produce. (N.T. 12/15/88, at 10). Therefore, appellant has not established how counsel’s failure to call these witnesses prejudiced him in any way. Appellant cannot show how this testimony may have altered the verdict or aided in his defense. Thus, appellant’s second claim must fail.

For the foregoing reasons, the order denying appellant relief under the Post Conviction Hearing Act is affirmed.

Order Affirmed.

      . In May, 1988, the presiding judge was convicted of extortion for accepting money from the Roofer’s Union and an attorney. See United States v. Shiomos, 864 F.2d 16 (3d Cir.1988).

      . We note that appellant’s reliance on In the Interest of McFall, 383 Pa.Super. 356, 556 A.2d 1370 (1989), allocatur pending, is misplaced. To the extent that this case may be seen to apply a per se rule of prejudice, we find its holding limited to the facts therein. There, the presiding judge was contemporaneously acting as an agent for the prosecution. Where, as here, the presiding judge is later found to be taking bribes from certain defendants, we hold that no per se rule is applicable.


author: ROWLEY, Judge:

text:
    580 A.2d 1382
    Vincent J. BOYCE, Appellant, v. SMITH-EDWARDS-DUNLAP COMPANY, Regency Typographic Services, Inc., and David Kahn v. FRANKLIN PRINTING COMPANY, INC., Quill Typographers, Inc. and John S. Logan t/a John S. Logan Associates. Vincent J. BOYCE v. SMITH-EDWARDS-DUNLAP COMPANY, Regency Typographic Services, Inc., and David Kahn v. FRANKLIN PRINTING COMPANY, INC., Quill Typographers, Inc. and John S. Logan t/a John S. Logan Associates. Appeal of REGENCY TYPOGRAPHIC SERVICES, INC.
    Superior Court of Pennsylvania.
    Argued June 21, 1990.
    Decided Sept. 25, 1990.

      Walter J. Timby, Jr., Philadelphia, for appellant in No. 330, and for appellees in No. 331.
    Ronald H. Surkin, Philadelphia, for appellant in No. 331, and for appellees in No. 330.
    Before ROWLEY, MCEWEN and JOHNSON, JJ.
   ROWLEY, Judge:

Vincent J. Boyce and Regency Typographic Services, Inc. (Regency) have filed cross-appeals from the Final Judgment entered in the trial court on December 7, 1989.

This case arises out of the following set of facts. Boyce was employed by Typographic Services, Inc. until February 21, 1980, when the assets of Typographic Services were acquired by Universal Graphics, Inc. (Universal), a Delaware corporation doing business in Philadelphia. Universal was in the business of preparing and printing high quality, specialty advertising typography. Boyce became a ten-percent owner of Universal. In addition, Boyce and Universal Graphics entered into a written three-year employment agreement. Pursuant to the Employment Agreement, Boyce agreed to certain restrictive covenants, including the following:

8. The parties hereto agree that one of the primary purposes in having this Employment Agreement is to limit Executives [sic] interference with Employer’s business after termination for whatever reason and therefore, except as provided and possibly limited pursuant to Section 22 herein, the Executive agrees that, both during and for a two-year period after the period of his employment by Employer, its subsidiaries or affiliates, (whether pursuant to this Agreement or otherwise), he will not (without the express written consent of Employer):
(a) engage, directly or indirectly, as proprietor, partner, shareholder, director, officer, employee, agent, consul tant or in any other capacity or manner whatsoever, in any business activity competitive directly or indirectly with the business of Employer, its subsidiaries or affiliates, as constituted during his employment and at the termination thereof; .
(b) make known or otherwise make available to any person, firm or corporation the names or addresses of any of the customers (whether the corporate entity or the individuals employed by such corporate entity or the individuals employed by such corporate entity) of the Employer or any other information pertaining to them; or
(c) call on, solicit, or take away, or attempt to call on, solicit or take away or communicate with, in any manner whatsoever, any of the customers (whether the corporate entity or the individuals employed by such corporate entity) of the Employer on whom the Employee called or with whom he became aware during his employment with the Employer, either from himself or for any other person, firm, or corporation.
18. It is expressly understood by the parties to this Agreement that certain provisions, rights and obligations pursuant to this Agreement, are expressly meant to survive the termination date of this Agreement and shall be given full effect pursuant to their terms.

After Boyce and Universal entered into this Agreement, Regency, a Pennsylvania corporation, bought Universal’s stock. Regency is controlled by its parent corporation, Smith-Edwards-Dunlap Company (SED), a Pennsylvania corporation engaged in the printing and graphic reproduction business in the Philadelphia area.

When Regency acquired Universal’s stock, Boyce also sold his stock in Universal to Regency and entered into a Stock Purchase Agreement, which included the following restrictive covenant:

B. Globe, Empery, McGovern and Boyce each covenant and agree that they will not, for a period of five (5) years after the Closing Date, except with the express prior written consent of Buyer, directly, or indirectly, whether as employee, owner, partner, agent, director, officer, shareholder or in any other capacity, for their own account or for the benefit of any other person, engage in or establish any typesetting service business within 25 miles from any of the cities or towns (and the counties within such cities or towns are located), listed on Schedule 13B, which Seller warrants as constituting all of the towns or cities in which the Company’s Customers are located as of the Closing Date, and except that, unless Boyce is hired by Empery, or Globe or any entity affiliated with Empery, Boyce shall be bound for only two years following February 21, 1983 in accordance with his employment agreement.

Boyce continued working for Universal after its acquisition by Regency until February 26, 1985. In March 1985, Boyce began employment as President and Chief Operating Officer of Franklin Printing Company (Franklin) located in Delaware County. Franklin is engaged in the business of printing and graphic reproduction. A year later, Boyce also became involved with Quill Typographers, Inc. (Quill), which is engaged in producing high quality special advertising and typography. Quill is located in the same facility as Franklin.

Subsequently, many of Universal’s employees quit and went to work for Franklin. On February 21, 1986, Universal went out of business.

On April 4, 1986, Boyce filed a complaint against SED, Regency, and David Kahn, principal officer of SED, seeking to recover approximately $5,000 in unpaid vacation pay, plus punitive damages. Regency filed a counterclaim against Boyce alleging that he had breached restrictive covenants in violation of their employment agreement, that he had breached a covenant of good faith and fair dealing, that he had engaged in unfair competition, that he had defamed SED, Regency and Kahn, and that he had converted their property. Regency requested damages of several million dollars. Regency also filed a complaint against Franklin, Quill, John S. Logan, and John S. Logan Associates alleging intentional interference with contractual relations, unfair competition, and intentional interference with present and prospective contractual and business relations.

This matter originally went to arbitration, but was subsequently transferred to the major trial list. In June, 1988, trial commenced before The Honorable Curtis Carson. In the middle of the trial, Judge Carson declared a mistrial and recused himself from further involvement in the case.

This case was then assigned to The Honorable Lawrence Prattis. After a three week trial, the trial court entered a directed verdict against Boyce on his claim for vacation pay. The trial court also entered directed verdicts in favor of Boyce on Regency’s counterclaims. The trial court entered nonsuits with respect to SED’s, Regency’s, and Kahn’s claims against Franklin, Quill, Logan and John S. Logan Associates.

The parties filed motions for a new trial which the trial court denied and Boyce and Regency filed these appeals. Appellant Boyce raises the following issue on this appeal: whether the trial court erred in holding that the restrictive covenant contained in his employment contract with Universal could be used by Smith-Edwards-Dunlap Company and Regency Typographic Services, Inc. as a defense to Boyce’s claim for vacation pay.

Appellant Regency raises the following issues on this appeal: (l)(a) whether a court, in an action at law for damages for breach of a restrictive covenant, can refuse to allow the action to proceed on the ground that the covenant is overly broad, despite the contrary holding of Krauss v. M.L. Claster and Sons, Inc., 434 Pa. 403, 254 A.2d 1 (1969); (l)(b) whether a court may refuse to allow a restrictive covenant to be used in an employer’s claim for damages for breach of that covenant, while allowing that covenant to be used in the employer’s defense to an employee’s claim for unpaid compensation; (l)(e) alternatively, were the restrictive covenants in issue reasonable in scope, and if not, was the court obliged to enforce those that were not overly broad, and then limit and enforce as limited those that were, instead of refusing to enforce them in their entirety; (2) whether Regency adduced sufficient evidence to require that its claims of unfair competition and intentional interference with contractual relations be submitted to the jury; and (3) whether there is sufficient evidence for the jury to conclude that Boyce’s breach of his fiduciary duty of loyalty was a legal cause of the loss sustained by Universal Graphics, Inc. from June, 1985 to February, 1986.

After a review of the record, we affirm the entry of a directed verdict in favor of Regency as to Boyce’s claim for vacation pay appealed at No. 830. We vacate the directed verdict in favor of Boyce as to Regency’s counterclaim for breach of contract appealed at No. 331 and we remand for a determination of causation and damages. We affirm the entry of nonsuits as to Regency’s claims for interference with contractual relations and unfair competition appealed at No. 331. We quash the appeal as to the directed verdict against Regency with respect to Regency’s claim against Boyce for breach of the fiduciary duty of loyalty appealed at No. 331.

I. APPEAL OF BOYCE [330 PHILADELPHIA 1990]

Boyce claims that the trial court erred in entering a directed verdict against him with respect to his claim for vacation pay on the basis that the restrictive covenant contained in the Employment Agreement could be used as a defense.

When deciding whether to grant a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the non-moving party and must accept as true all evidence which supports that party’s contention and reject all adverse testimony. Cooke v. Travelers Ins. Co., 350 Pa.Super. 467, 504 A.2d 935 (1986). A directed verdict can only be granted where the facts are clear and there is no room for doubt. Id. On review, we can reverse only if an abuse of discretion or error of law which controlled the outcome of the case occurred. Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 491 A.2d 835 (1985). With this standard in mind, we affirm the entry of a directed verdict as to Boyce’s claim for vacation pay.

The trial court, while finding that the restrictive covenants were too broad to be enforced, permitted Regency to use Boyce’s breach of the covenants as a defense to Boyce’s claim for back pay. Boyce claims that this was error.

Generally, to be enforceable, a restrictive covenant in an employment contract must be reasonably limited in both time and territory. Ress v. Barent, 378 Pa.Super. 397, 548 A.2d 1259 (1988). However, following, Krauss v. M.L. Claster and Sons, Inc., 434 Pa. 403, 254 A.2d 1 (1969), we conclude that, because this is an action at law, the reasonableness of the restrictive covenant is not relevant.

In Krauss, an employee filed an action in assumpsit to recover monies allegedly due to him under an employment contract. The employer raised as a defense the fact that the employee breached a restrictive covenant by accepting employment with a competing company. The Supreme Court affirmed the trial court’s entry of a judgment against the employee holding that where the breach of a covenant not to compete is raised as a legal defense to an action at law, the question of whether the covenant is too harsh to be enforced in equity is irrelevant. Id.

While the present case is different from Krauss in that in Krauss, the employer refused to pay the employee further compensation, while in the present case, Boyce is attempting to recover back vacation pay, this distinction does not require a reversal of the directed verdict against Boyce. Along with the abovementioned restrictive covenants, the following paragraph appears in the Employment Agreement:

5(c) Notwithstanding anything in this Agreement to the contrary and in addition to any other rights or remedies Employer may have, if at any time the Executive (whether during the Employment period or thereafter as provided herein) has without the express written consent of the Employer, engaged, directly or indirectly, as proprietor, partner, shareholder, director, officer, employee, agent, consultant, or in any other capacity or manner whatsoever, in any business activity competitive directly or indirectly with the business of Employer, and/or any of its affiliates or any of their direct or indirect subsidiaries as such business is constituted during his employment by Employer or at the termination thereof, (whether pursuant to this Agreement or otherwise), then the obligation of Employer to pay any compensation as provided in any Section of this Agreement including Gross Salary, shall terminate and from and after such termination neither the Executive, his beneficiary nor any of their legal representatives or distributees shall have any right to receive any payments) in connection herewith.

There is nothing in the record to indicate that the Employment Agreement was not part of an arms-length bargain between knowing and willing parties. Therefore, Boyce is bound by the terms of the Agreement in an action at law. Krauss, supra. Looking at the holding of Krauss, along with paragraph 5(c) of the Employment Agreement, which allows the Employer to withhold compensation in the event of a breach of a restrictive covenant, we find that evidence of the breach by Boyce of the restrictive covenant was properly admitted as a defense to Boyce’s claim for vacation pay.

Boyce also argues that because the Employment Agreement expired on February 21, 1983, he was only bound by the restrictive covenants for two years after that date, February 21, 1985, and that he did not breach the covenants by starting employment with Franklin in March, 1985. However, Boyce agreed not to become involved with a competing business for “a two-year period after his period of employment by employer, its subsidiaries or affiliates, (whether pursuant to this Agreement or otherwise).” Clearly, the covenant restricts Boyce’s activities for two years following his period of employment, which is not necessarily the same as the term of the contract. Boyce continued to work for Regency until February 21, 1985. Therefore, he was bound by the restrictive covenants for two years after that date, and he began to work for Franklin and Quill before the two year time period had expired.

Boyce additionally claims that the Stock Purchase Agreement he entered into with Regency superceded the Employment Agreement and he was therefore no longer bound by the Employment Agreement. This claims fails because the Stock Purchase Agreement explicitly stated that “the terms of [Boyce’s] Employment Contract shall not be limited by the terms of this Agreement.” Stock Purchase Agreement at p. 45. Furthermore, the Stock Purchase Agreement incorporated by reference Boyce’s Employment Agreement. One part of a contract should not be interpreted so as to annul another part and the writings which comprise an agreement must be interpreted as a whole. Shehadi v. Northeastern National Bank of Pennsylvania, 474 Pa. 232, 378 A.2d 304 (1977). Construing both the Employment Agreement and the Stock Purchase Agreement together, it is apparent that Boyce was bound by the terms of the Employment Agreement for two years following the termination of his employment.

For the above reasons, the trial court’s entry of a directed verdict against Boyce with respect to his claim for vacation pay is affirmed.

II. APPEAL OF REGENCY [331 PHILADELPHIA 1990]

In both its counterclaim against Boyce and in its claim against the additional defendants, Regency sought to recover the identical “damages to [Regency’s] business, profits, and goodwill” in an amount not less than $100,000.00. The theories supporting this claim as to Boyce were 1) that he had violated the restrictive covenants, 2) that he had engaged in unfair competition by systematically inducing Universal’s employees to resign from Universal and undertake employment with Franklin or Quill, both before and after Boyce’s own departure from Universal, and 3) that he had breached the contractual fiduciary covenant of good faith and fair dealing by acting contrary to the best interests of Universal.

The theories supporting the claim against the additional defendants were 1) that Franklin, Quill, and Logan induced and encouraged Boyce to breach his employment agreement with Universal; 2) that by encouraging Universal’s employees to leave Universal and begin working for Franklin or Quill where it was anticipated that the former Universal employees would reveal Universal’s trade secrets and lure Universal’s customers away from Universal, the additional defendants, together with Boyce, engaged in unfair competition; and 3) that by inducing and encouraging Universal’s employees to leave Universal and begin working for Franklin or Quill, and by “stealing]” Universal’s actual and potential customers, the additional defendants, together with Boyce, intentionally interfered with present and prospective contractual relations.

As to the counterclaim against Boyce, the trial court granted a directed verdict in favor of Boyce. As to the claim against the additional defendants, the trial court granted a nonsuit.

A. Regency v. Boyce

1. Breach of Restrictive Covenants

Regency contends that the trial court erred in refusing to enforce the restrictive covenants on the ground that they were overly broad. Before discussing this issue, we must clarify that Regency did not bring an action at equity to enforce the restrictive covenants. Had Regency done so, then the trial court would have , been correct in considering the reasonableness of the covenants. Instead, Regency brought an action at law to recover for damages allegedly sustained as a result of Boyce’s breach of the covenants. Under Krauss, supra, in this situation, the trial court erred in entering a directed verdict against Regency on its breach of contract claim on the basis that the covenants were too broad to be enforced.

The trial court was initially correct when noting that, in Krauss, the restrictive covenant was used as a defense, rather than affirmatively in a breach of contract action. However, the Supreme Court in Krauss discussed the case of Ross v. Houck, 184 Pa.Super. 448, 136 A.2d 160 (1957), in which the plaintiff brought an action for damages based on the violation of a covenant not to compete. In Ross, the Superior Court considered the reasonableness of the covenant when deciding that damages for its breach were appropriate. In Krauss, however, the Supreme Court disapproved of the use of this standard in Ross and stated that “in an action at law, the reasonableness of any given contractual term simply is not relevant.” Krauss, supra, 434 Pa. at 408, 254 A.2d at 3.

Although Krauss involved a different procedural situation than that involved in this case, the reasoning of Krauss is sound and is applicable to the present case. In Krauss, the Supreme Court explained that:

Although as a general rule, covenants not to compete are unenforceable if overly broad in time, territory, or protection or if they create an unreasonable hardship, those rules are equitable in nature. Their rationale is that overly broad covenants not to compete deprive a man of his opportunity to make a living, and are thus unreasonable and as a result unenforceable in equity. Id. at 407, 254 A.2d at 3 (citations omitted).

The soundness of this rationale is further supported by the Supreme Court’s clarification of damages. Although the covenant may be overly broad, damages would be appropriate only to the extent of actual harm inflicted by the breach. Id., 434 Pa. at 408, n. 2, 254 A.2d at 3, n. 2. Therefore, it must be determined whether the losses sustained by Universal were proximately caused by Boyce’s breach and the amount of damages, if any, necessary to compensate for these losses. We remand to the trial court for this determination.

We need not consider Regency’s alternative argument that the trial court erred in refusing to enforce those covenants which were not overly broad and limit those covenants which were overly broad, and as limited, enforce them.

2. Breach of Fiduciary Duty of Loyalty

Regency argues that Boyce, while still employed by Universal, breached his fiduciary duty of loyalty by causing Fagan, a former Universal employee, to become employed at Williams and Marcus, Franklin’s predecessor, in December, 1984. Regency argues that this breach was a legal cause of the losses sustained by Universal from June, 1985 to February, 1986 when it went out of business because Fagan’s employment at Williams and Marcus between December 1984 and March 1985, when Boyce purchased Williams and Marcus, kept Williams and Marcus alive while Boyce was looking around for alternative sources of financing to facilitate his purchase of Williams and Marcus.

At trial, the trial court concluded that there was sufficient evidence to submit to the jury the question of whether Boyce had breached his duty of loyalty. See SHV Coal, Inc. v. Continental Grain Co., 376 Pa.Super. 241, 545 A.2d 917 (1988), alloc, granted, 522 Pa. 596, 562 A.2d 321 (1989) for discussion of duty of loyalty. However, when Regency indicated that it sought to prove a causal connection between this alleged breach of the duty of loyalty and the damages it suffered between June 1985 and February 1986, i.e., the failure of its business, the trial court refused to allow evidence of such damages. Instead, the only evidence of damages which the Court would permit Regency to introduce was the amount of salary paid to Boyce from December 3, 1984, when Fagan left Universal’s employment, through February, 1985, when Boyce left Universal. As a result of this ruling, the parties “agreed” and requested that a directed verdict be entered against Regency as to the claim for breach of the duty of loyalty, with the stipulation that, if on appeal we found that the trial court erred in limiting the damages as it did, the directed verdict would be vacated and the issue could be pursued at the new trial.

Even though the trial court entered a directed verdict at the request of the parties, technically, there has been no ruling on liability with respect to this claim. Notwithstanding the fact that the liability issue has not been determined, Regency wants us to consider the issue of damages. In effect, the entry of a directed verdict was used as an attempt to appeal an interlocutory order. A ruling on liability without a ruling on damages is not a final order which can be appealed. Williams v. Erie Insurance Exchange, 290 Pa.Super. 279, 434 A.2d 752 (1981). Likewise, a ruling on damages, without a ruling on liability is not a final order and cannot be appealed.

We have no jurisdiction to consider this issue. An agreement by the parties to a suit does not create jurisdiction where it would not otherwise exist. Waddell v. Trostel, 336 Pa.Super. 527, 485 A.2d 1208 (1984); Pullium v. Laurel School District, 316 Pa.Super. 339, 462 A.2d 1380 (1983). Furthermore, the Superior Court can raise the issue of lack of subject matter jurisdiction sua sponte. Andursky v. Andursky, 382 Pa.Super. 1, 554 A.2d 571 (1989).

Because jurisdiction is lacking, we quash the appeal as to this issue.

3. Unfair Competition

Regency alleges that there was sufficient evidence to submit to the jury Regency’s claims of unfair competition against Boyce, Franklin, Quill, and Logan.

Regency claims that Boyce, Franklin, Quill, and Logan engaged in unfair competition by systematically inducing Universal employees to leave Universal and come to work for Franklin. Offering employment to another company’s at-will employee is not actionable in and of itself. Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A.2d 768 (1965). However, systematically inducing employees to leave their present employment is actionable “when the purpose of such enticement is to cripple and destroy an integral part of a competitive business organization rather than to obtain the services of particularly gifted or skilled employes.” Id., 417 Pa. at 182, 207 A.2d at 771 (quoting Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 633-634, 136 A.2d 838, 847 (1957)).

While the record shows that a substantial number of Universal employees left that employment and immediately, or soon after, began to work at Franklin, there is no evidence to support Regency’s contention that Boyce induced these employees to work for Franklin in order to cripple and destroy Universal. The fact that many of these employees were initially employed at Franklin as maintenance and construction workers, does not prove that Boyce hired these people with the intent to harm Universal. It is entirely plausible that Boyce hired these employees before the printing business was ready to begin in order to ensure that they would be available when the business started. Because Regency did not provide sufficient evidence to justify sending this issue to the jury, we affirm the entry of a nonsuit.

B. Regency v. Franklin, Quill, and Logan

1. Intentional Interference with Contractual Relations

Regency argues that the trial court erred in granting a nonsuit with respect to Regency’s claim that Franklin, Quill, and Logan intentionally interfered with contractual relations, i.e. Boyce’s Employment Agreement.

In Paul v. Hess Bros., 226 Pa.Super. 92, 312 A.2d 65 (1973), we discussed the standard of review on appeal from a compulsory nonsuit:

[T]he plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiff’s favor. A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion.

Id., 226 Pa.Superior Ct. at 94-95, 312 A.2d at 66 (citations omitted). See also Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988).

In order to establish the tort of intentional interference with contractual relations, a plaintiff must show the following:

1. that the acts complained of were willful and intentional;
2. that they were calculated to cause damage to the claimant in its business;
3. that the acts were done with the unlawful purpose of causing damage and loss to the claimant without right or justifiable cause on the part of the respondent; and
4. that actual damage and loss resulted.

Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971); R.P. Russo Contractors and Engineers, Inc. v. C.J. Pettinato Realty and Dev. Inc., 334 Pa.Super. 72, 482 A.2d 1086 (1984).

Regency claims that the trial court entered the nonsuit based on its conclusion that the restrictive covenants in Boyce’s Employment Agreement were void as against public policy. However, a review of the record shows that the trial court granted the nonsuit because there was insufficient evidence to justify a finding in Regency’s favor. Because Regency has not provided any evidence to establish the elements of this tort, we affirm the entry of a nonsuit as to this issue.

CONCLUSION

After a review of the record, we affirm the entry of a directed verdict against Boyce as to Boyce’s claim for vacation pay appealed at No. 330. We vacate the directed verdict against Regency as to Regency’s counterclaim for breach of contract appealed at No. 331 and we remand for a determination of causation and damages. We affirm the entry of nonsuits as to Regency’s claims for interference with contractual relations and unfair competition appealed at No. 331. We quash the appeal as to the directed verdict against Regency with respect to Regency’s claim against Boyce for breach of the fiduciary duty of loyalty appealed at No. 331. Jurisdiction is relinquished.

      . The complaint originally listed Typographic Services, Inc. as a defendant, but was later amended to substitute Regency as successor-in-interest of Typographic Services.

      . Logan was a salesman for Universal who left that employment to become owner and operator of Logan Associates, a typesetting company affiliated with Franklin.

      . Regency has not pursued the defamation and conversion claims on appeal.

      . Although the restrictive covenant in Ross arose out of a sales agreement, while in the present case the covenants arise from employment agreement, the factual situations are analogous.

      . Regency's claim against Franklin, Quill, and Logan for damages for the failure of its business due to unfair competition is identical to its claim of unfair competition asserted in the counterclaim against Boyce. Since the trial court’s directed verdict in favor of Boyce on this claim had the same effect as the non suit entered in favor of Franklin, Quill, and Logan on the unfair competition claim, and since Regency’s argument on appeal as to the claim of unfair competition against Boyce as well as Franklin, Quill, and Logan is identical, our disposition of the unfair competition issue as to Boyce also controls the unfair competition issue as to Franklin, Quill, and Logan.


author: CERCONE, Judge:

text:
    580 A.2d 1391
    COMMONWEALTH of Pennsylvania v. Rodney BLACK, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 2, 1990.
    Decided Oct. 24, 1990.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Comm., appellee.
    Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. For the reasons that follow, we affirm.

The facts underlying this appeal, as determined by the trial court, are as follows:

On January 20, 1989, at approximately 10:00 a.m., Officer Steven C. Johnson was watching television in his second floor apartment at 5700 North Marvine Street. At that time he heard someone ringing the front door bell and knocking very hard on the outer vestibule door. He then went downstairs to the vestibule and observed [appellant] ringing the door bell and knocking on the door.
Officer Johnson observed [appellant] for approximately two minutes ringing the door bell and knocking on the door. [Appellant] then walked down the front steps and picked up a piece of metal. He then came back up the steps with the piece of metal and placed it in a groove between the window and the window sill. [Appellant] attempted to pry the window open for approximately five minutes. He then walked to the rear of the property where he was arrested.

At trial, appellant was found guilty of attempted criminal trespass. Subsequently, appellant did not file post-verdict motions. Appellant now raises one issue for our consideration: was trial counsel ineffective for failing to file a post-trial motion challenging the sufficiency of the evidence? We reject this contention for the reasons outlined below.

Claims of ineffectiveness of counsel are subject to a three part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Chin, 373 Pa. Super. 163, 540 A.2d 573 (1988). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173, (1985); Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989).

As noted supra, appellant contends that trial counsel rendered ineffective assistance for failing to preserve for appellate review the issue of the sufficiency of the evidence to sustain his conviction for attempted criminal trespass. Specifically, appellant argues that the verdict in this case was based on conjecture since the evidence proffered was “as consistent with an attempt to commit or actual commission of criminal mischief as it is with attempted criminal trespass.” We disagree.

We are constrained to review an insufficiency claim in the light most favorable to the Commonwealth, to draw all proper inferences from the evidence in such light, and to determine whether the jury could reasonably have found that all the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). It is the prerogative of the fact-finder to believe all, part, or none of the evidence presented. Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920 (1989). Furthermore, a determination as to the credibility of witnesses is within the sole province of the trier of fact. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984).

Viewed in a light most favorable to the Commonwealth, the evidence in this case established appellant’s guilt with regard to the crime of attempted criminal trespass. Our legislature has defined an attempt as follows:

§ 901. Criminal attempt
(a) Definition of attempt.—A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime

18 Pa.C.S.A. 901(a). Criminal trespass is defined as follows:

A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
(ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.

As used in this subsection:

“Breaks into.” To gain entry by force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access.

18 Pa.C.S.A. § 3503(a)(l)(ii) and (3).

In this case, appellant was observed by Officer Johnson for approximately five minutes as he tried to pry open a window to Johnson’s home. Our review of the record also reveals that Johnson testified at trial that he neither knew appellant nor had given him permission to enter the home. Clearly, this behavior exhibited by appellant constituted a “substantial step” to enter Johnson’s home by force.

While appellant argued at trial that he was not trying to pry open the window and was only searching for his friend Wendy, the court was free to believe all, part, or none of the evidence presented. See Lyons, supra. Thus, the lower court’s rejection of his version of the facts as well as its acceptance of Officer Johnson’s testimony was well within its province as the sole trier of fact. See Jackson, supra.

Most importantly, we reject appellant’s argument that the verdict in this case was based on conjecture since the evidence proffered was “as consistent with an attempt to commit or actual commission of criminal mischief as it is with attempted criminal trespass.” While the facts proffered in this case may have supported a conviction of criminal mischief, the Commonwealth did not charge appellant with that crime. Instead, appellant was charged with attempted criminal trespass. Appellant does not proffer, nor can we find, any case law or statutory basis requiring the Commonwealth to charge appellant with attempted criminal mischief.

Therefore, we reject appellant’s sufficiency argument since the evidence proffered by the Commonwealth in this case adequately supported the attempted criminal trespass conviction. Moreover, we find that trial counsel cannot be considered ineffective for failing to assert the meritless insufficiency claim. See Silo, supra.

Judgment of sentence affirmed.