author: STRANAHAN, Judge:

text:
    439 A.2d 151
    COMMONWEALTH of Pennsylvania, v. Joseph F. CAREY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1979.
    Filed Dec. 18, 1981.
    Petition for Allowance of Appeal Denied June 1, 1982.

      Robert F. Simone, Philadelphia, for appellant.

      Michael Coll, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Judge JOHN Q. STRANAHAN of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge LEONARD SUGERMAN of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   STRANAHAN, Judge:

Defendant, Joseph Carey, has been convicted of criminal solicitation. The evidence offered by the Commonwealth would indicate that the defendant solicited James Parsells, Owen Gallagher and David Eagan to set fire to Ernesto’s Little Italian Market in Clifton Heights, Delaware County, Pennsylvania.

During the trial, David Eagan testified that he attended meetings with James Parsells and Joseph Carey at which time the arson of Ernesto’s Little Italian Market was discussed and the defendant eventually paid to Eagan, who subsequently split the money with Parsells and Gallagher, the sum of $5,000.00 to commit the arson of the business in Delaware County.

All of the conversations among the defendant, Parsells and Eagan took place in Philadelphia. The first two conversations were at a downtown restaurant and the final conversation at one of the Philadelphia hotels.

As a result of these conversations and the final payment of money to Parsells, Eagan and Gallagher, the three men went to the market in Clifton Heights and entered the premises with a key that had been provided to them for that purpose. The key was provided by defendant giving it to Parsells who, in turn, gave the key to Eagan. The three men took with them a quantity of gasoline, together with various incendiary devices to be used in setting a fire in the building occupied by the business. Among the incendiary devices were timers, the heating elements of toasters, various wiring and other paraphernalia.

While the three men were in the building, people in the vicinity reported the occurrence to the police who arrived at the scene very quickly and observed the three men in the building. The police then advised the three men in the building that the premises were surrounded and that the occupants should give themselves up. Prior to surrendering, Parsells, who was in charge of setting the incendiary devices, triggered one of the devices and an explosion occurred. The three men were taken into custody by the police and subsequently were convicted of the arson.

The occurrence of the arson was October 24, 1976 and on October 13,1977, defendant was arrested and charged with a multitude of crimes, which included theft by deception, arson, criminal conspiracy, criminal solicitation, criminal attempt to commit arson, incendiary devices and recklessly endangering other persons.

At the time of the preliminary hearing, the magistrate dismissed the charges of theft by deception and arson but bound the defendant over on the other charges.

Defendant was brought to trial and at the time of the trial the court dismissed all the charges against the defendant except criminal solicitation which was submitted to the jury and resulted in a conviction.

The principal witness for the Commonwealth was David Eagan. At the time of his testimony, Eagan was in the Federal Witness Protection Program and was under the protection of the United States Marshall’s office.

Prior to the arson, Eagan had been involved in a post office robbery in Atlantic City. As a result of the robbery and as a result of Eagan later being convicted of the arson involved in this case, Eagan agreed to cooperate with federal authorities and testify against Carey in this case. He was a paid witness who was given a monthly stipend by the federal government and was maintained by the government as a protected witness.

Delaware County did not provide any funds but when Eagan was sentenced for arson, he received from Delaware County a concurrent sentence with the federal sentence for the Atlantic City robbery.

The defendant argues his post trial motion for arrest of judgment by raising a number of issues, none of which have merit.

1. JURISDICTION

The defendant has raised the issue that the case should not have been tried in Delaware County because the solicitation took place in Philadelphia County and, therefore, Delaware County lacked jurisdiction.

We disagree with the defendant’s position for a number of reasons. Our analysis of the crime of criminal solicitation indicates that criminal solicitation is an offer to enter into a conspiracy. The crime itself is closely related to the crime of conspiracy. When the solicitation is accepted, as it was in this case according to the Commonwealth’s testimony, then it becomes a continuing crime and as such, the prosecution may be brought in any county in which the criminal activity for which the solicitation was made took place. It is obvious that the authors of the Crimes Code considered criminal solicitation to be a continuing crime because 902(b) provides a method of renunciation of the solicitation and permits a defendant who has solicited another person to commit a crime, to do various things, which in essence, amount to a renunciation. Such being the case, it is obvious that, like the crime of conspiracy, the crime of solicitation once it is consummated and becomes a conspiracy continues until the solicitation is either terminated by a renunciation or by other means, or the act itself is committed.

In section 903(a)(2) criminal conspiracy includes an agreement to aid in an attempt or solicitation to commit a crime. The two sections are interrelated since the crimes are similar in nature.

In Commonwealth v. Rogers, 187 Pa.Super. 471 at 483, 144 A.2d 662 (1958) the court states: “It is a well established theory of law that, where one puts in force an agency for the commission of crime, he, in legal contemplation, accompanies the same to the point where it becomes effectual. . . . ” It’s logical that even though the original solicitation may have taken place in Philadelphia County, the ultimate act was to be performed in Delaware County and that county should have jurisdiction to try the defendant. It also follows as a matter of simple logic that where the defendant is charged with a substantial number of crimes, all of which would be triable in Delaware County, that this offense of solicitation, which is a part of the overall criminal plan, should also be tried in Delaware County. Otherwise, it would involve a second trial and would merely prolong the outcome of the charges against the defendant. Trying the defendant in Delaware County in no way prejudiced his case.

From all this, we conclude that the Court of Common Pleas of Delaware County had jurisdiction or venue to try this case and there was no requirement for this case to be severed from the other cases and tried separately.

II. SUFFICIENCY OF EVIDENCE

The defendant further argues that there is insufficient evidence to sustain the conviction of criminal solicitation. This argument has no merit since a review of the testimony of David Eagan indicates that his testimony alone is sufficient to support the verdict in this case.

Next, the defendant raises issues in his post trial motion for a new trial.

III. ERRORS OF EVIDENCE

The defendant contends that improper and prejudicial evidence admitted by the Court entitles him to a new trial.

During the course of the testimony by the witness Eagan, he indicated that Parsells told him the defendant had stated to him that he, the defendant, had a few “torch jobs” for Parsells to perform. Included in the jobs was the matter that led to the trial of this case. This testimony was prejudicial to the defendant in that it indicated other criminal activity in which the defendant was engaged. However, the record indicates that counsel, for the defendant, after this testimony had been offered, stated to the court: “I move for a mistrial or this witness to be admonished for the third time. He has been in court enough times to know what he is supposed to say.” In response to that, the court admonished the witness advising him to confine himself to the issue in this case. With that, the case continued. When the attorney for the defendant requests the court to either declare a mistrial or admonish the witness and the court admonishes the witness, we fail to believe that defense counsel can now complain that the court did not comply with his request.

A second incident occurred, again during the testimony of Eagan, to the effect that Eagan in cooperation with federal authorities, tried to set up the defendant by making telephone calls to him in May 1977 which was prior to the defendant’s arrest. These calls indicated to the defendant that Eagan believed Parcells was going to make a statement to Delaware County authorities and that Al and Cliff Williams were going to testify before the Grand Jury in New Jersey. The entire line of testimony was not clearly developed on the record and it is difficult for this court to understand what the purpose of the inquiry was. However, the court ultimately sustained defendant’s objection and ordered the jury to disregard the line of questioning. The questioning did not indicate any admission by the defendant that he was involved in the arson or its solicitation so we do not believe the defendant was prejudiced to the extent that a new trial should be granted.

The fact the testimony showed that AI and Cliff Williams, two convicted criminals, were friends of the defendant might be considered inflammatory and prejudicial were it not for the fact that the defendant by his cross-examination of Eagan endeavored to show that the defendant Carey was a part of a fund raising scheme to help raise money for A1 and Cliff Williams in order to relieve their financial problems. This testimony indicated the relationship between the defendant and Al and Cliff Williams.

IV. CLOSING STATEMENT BY DISTRICT ATTORNEY

The defendant also contends that during the course of the closing argument the prosecutor made prejudicial remarks. The first remark concerns reference to the fact that the witness Eagan was under the protection of the United States Marshall. We fail to ¡-see how this remark, which is the result of testimony that came out during the case concerning the status of Eagan, prejudices the defendant in any manner. The evidence indicates that Eagan was involved in a post office robbery in Atlantic City, and as a result of this robbery, he entered into a bargain with the federal authorities to testify in return for receiving a lighter sentence. In order to protect him, he was afforded certain security and was paid by the government in order that he could live during the period of time that he was to be used. He was a paid witness. While all of this bargain was the result of the Atlantic City robbery, the Commonwealth of Pennsylvania was permitted to use Eagan during the trial of this case because he possessed relevant information. All of this was explored in considerable detail during the trial of the case and certainly was relevant testimony for the jury to have in passing on the credibility of Eagan. Based on this testimony, the jury could well have reached the conclusion that Eagan was an incredible witness but his status as an informant certainly was a factor that should have been considered by the jury and we believe was a proper subject for the District Attorney to comment in his closing argument.

In his closing argument, the District Attorney said: “And if David Eagan is a professional criminal, what is the person who employs David Eagan to carry out his ends?” The defendant objected and moved for a mistrial. We do not believe this was an improper argument based on the record in this case. Perhaps the question was intended to be rhetorical. The Commonwealth’s contention was that the defendant hired and paid Eagan and the others to commit this crime and, therefore all of the participants in the arson resulting from the solicitation were performing their services for money and were professionals. The Commonwealth further contends that the defendant was hired to set up the arson by an unidentified person which would make him a professional.

Finally, the defendant objects to the District Attorney’s argument which appeals on the record as follows:

Mr. Coll: The question is, ladies and gentlemen, is the Commonwealth ultimately powerless to present evidence against such a person, who designs and pays for such a criminal act? And, you are equally at liberty to express your willingness to have a person who almost never gets caught in a crime like this to be convicted of it.
Mr. Simone: Your Honor, I object to the statement as being unfair.
The Court: Just be guided solely by the evidence Mr. District Attorney.

We do not believe this argument is improper. Since there was no motion for a mistrial or to strike the testimony and the court cautioned the District Attorney to be guided by the evidence, we do not believe there is any error.

V. ALLEGED COURT ERROR

Next, the defendant contends that the trial court committed error in commenting on the defendant’s failure to take the stand and his failure to call the witnesses and explain the prosecutor’s evidence. Our examination of the record does not bear that out. The District Attorney, in his closing argument, endeavors to rebut testimony elicited on cross-examination to the effect that the $5,000.00 that Eagan contends he received as payment for the arson, was in reality, money contributed to Al and Cliff Williams under a scheme to raise money for them because they were in jail. This theory had been injected into the case by the defendant on cross-examination. The District Attorney, in his closing argument, points out the lack of logic in the events that happened as far as supporting that element of the cross-examination. The District Attorney indicates that it would be difficult to believe that $5,000.00 would be given to Eagan, which was intended to be used by two prisoners and if Eagan never accounted for the money, it would be obvious that somebody would contact him in regard to it. This portion of the argument is merely an effort by the District Attorney to demonstrate to the jury how illogical the cross-examination by defense counsel on this matter was.

Probably the most serious problem raised by the defendant comes from the continuing statement by the District Attorney in his closing:

So what was the money for? If someone had taken $5,000.00 of your money that you had collected for some purpose, wouldn’t you complain to somebody? Where does this come from, this explanation-? (Emphasis supplied)
Mr. Simone: Excuse me, Your Honor, I hate to object. The failure of the defendant to make a complaint, I object to that statement. It is a violation of his Fifth Amendment rights.
The Court: Make no reference whatever to that, Mr. District Attorney.

The Assistant District Attorney then continued to make the same argument and defense counsel stated: “I am making an objection to the comment about the defendant offering no evidence.” The Court then instructed the jury that it was to draw no unfavorable inference against the defendant because he didn’t testify. The case went on.

The defense counsel never moved for a mistrial but merely objected twice to the District Attorney’s argument and in both instances the Court tried to correct the problem first by admonishing the District Attorney and secondly by giving an instruction to the jury. The Court can’t declare a mistrial unless the defendant requests it or if there is a manifest necessity. Pa.R.Crim.P. 1118. Neither of these situations happened, so the defendant cannot complain.

VI. CHARGE OF THE COURT

We next turn to defendant’s contention that the trial court incorrectly charged the jury on numerous points and refused to charge as requested on other points.

The defendant contends that there was error by the Court in its charge in regard to commenting on the failure of defendant to call Ernest Demarchis and his father, both of whom would have taken the fifth amendment, had they been called. In support of this argument, defense counsel refers to the case of Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971), which holds that the court would not permit a witness who will obviously take the fifth amendment to testify because it may raise an inference in the jury’s mind that is favorable to the Commonwealth. We fail to see how this case is applicable since neither Ernest Demarchis, II, nor his father, was called as a witness, and therefore, we think the defendant’s reliance on the Greene case is factually inappropriate. As for the Court or the District Attorney commenting on the failure to call these men, we find no place in the record where this happened.

The defendant’s complaint that the Court commented on the number of witnesses called by the two sides has no merit since the Court covered that in its charge on credibility.

Another error alleged is the manner in which the court charged on accomplice testimony. The first alleged error raised by defendant is that the court told the jury the defendant was an accomplice. Our review of the record does not bear this out. The court stated (Tr. Vol. V. p. 981a) “His testimony if believed, reveals that he was an accomplice of the defendant at the time of this alleged crime.” We believe that this is a correct statement. Commonwealth v. Banks, 447 Pa. 356, 362, 285 A.2d 506 (1971).

Defendant next objects to the failure of the court to charge on point 3 which contains a definition of an accomplice. While the court did not charge on defendant’s point 3, it did define accomplice as follows: “Now an accomplice in law is one who being of mature age and in possession of his ordinary faculties, knowingly and voluntarily cooperates with or aids another in the commission of a crime. (Tr. Vol. V. p. 981a). This is a correct statement. Commonwealth v. Jones, 213 Pa.Super. 504, 508, 247 A.2d 624 (1968). The court further cautioned the jury to scrutinize closely this testimony. We believe the court adequately covered point 3 in its charge.

The defendant contends that the court committed reversible error by refusing to charge on points 4, 5, and 6. These points are as follows:

(4) In determining whether or not a witness is credible or believable you may consider if that witness has an interest in the outcome of the case. The evidence shows that David Eagan has received sums of money from the Government in exchange for his cooperation and testimony in another case, as well as in this case. In determining whether or not you should believe Mr. Eagan you may consider the fact that he has received and is continuing to receive money in exchange for his cooperation and testimony. Commonwealth v. Orr, 138 Pa. 276 [20 A. 866].
(5) David Eagan is a paid witness. You may consider the fact that his (sic) is receiving money in exchange for his testimony in determining his credibility.
(6) The evidence shows that David Eagan made a deal with both the United States Government and the Commonwealth in exchange for his cooperation and testimony should be considered in determining whether or not he has reason to lie. The evidence shows Mr. Eagan will receive a sentence at least thirty (30) years shorter than he was exposed to, prior to his cooperation and testimony. Commonwealth v. Ross, 434 Pa. 167 [252 A.2d 661] (1969).

All of these points deal with Eagan’s credibility and refer to his status as a paid witness. None of the points for charge contain points of law that were not adequately covered by the court. Rather the points are an effort to relate testimony to the law. Admittedly, the court should have affirmed the points by reading them but rather the court agreed to read the points when they were called to the court’s attention, but later neglected to do so.

We do feel, however, that the points were adequately covered by the Court in its charge when it said (Tr. Vol. V., p. 629) “Among other things, look to and consider any interests which your witness may have in the'case on trial. The counsel for defendant as well as the District Attorney have explained to you the interests which David Eagan has as a witness in the case on trial, what his interests have been and what they are. You have that to consider in your deliberations in evaluating his testimony.”

The issue was adequately presented by the court in its own language. Commonwealth v. Sisco, 484 Pa. 85, 89, 398 A.2d 955 (1979).

For these reasons, we believe the Court’s refusal to charge on points 3, 4, 5 and 6 is somewhat unusual but we find that the Court’s charge, read in its entirety, covers the elements contained therein.

The final concern of the defendant is an inadvertent error the Court made in the “False in One, False in All Rule.” The Court stated in its charge:

It means that false in one thing false in another. As used, that is what the Latin means. As used in law, the maxim merely means that if a witness willfully and corruptly swears falsely to a material aspect of the case, the jury may disregard his entire testimony. If you believe that he is throughout this week or last week willfully and corruptly swearing, you may disregard his testimony.
Now, however, it should be noted the maxim does not forbid the jury, however, from accepting the whole of the witness' testimony even though they find a deliberate falsification of his proofs in a material fact.
You have a right to accept what portion thereof you believe to be true. You have a right to disregard all of it if you so determine it to be. We are leaving that entirely for you, ladies and gentlemen of the jury.

This is clearly error but not reversible error. The False in One, False in All Rule is much to do about nothing. Commonwealth v. Parente, 184 Pa.Super. 125, 133 A.2d 561 (1957). It mandates nothing and merely gives the jury the right to accept or reject testimony as the jury sees fit. This was adequately explained by the Court in its general charge on credibility. We do not believe that any juror was misled by the Court’s inadvertent mistake.

Next, the defendant believes that the Court’s charge on reasonable doubt is inadequate. The charge given by the Court on reasonable doubt is not the customary charge presently being used but the charge of the trial judge is based on appellate court cases and it meets the standards contained therein. Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963) at 635, 187 A.2d 552, and Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) at 26, 393 A.2d 350. The defendant again contends that the Court erred in failing to charge on its points 13 and 15 but we believe that the charge adequately covered those points. Commonwealth v. Parks, 281 Pa.Super. 38, 421 A.2d 1135 (1980); Commonwealth v. Butler, 442 Pa. 30, 272 A.2d 916 (1971); Commonwealth v. Harris, 479 Pa. 131, 387 A.2d 869 (1978).

Judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 902

      . Model Penal Code, Drafts 8, 9, and 10, sec. 5.02, solicitation.

      . 18 Pa.C.S. § 902(b).

      . 18 Pa.C.S. § 903(a)(2).


source: Caselaw Access Project

author: PER CURIAM: HESTER, Judge,

license: Public Domain

text:
    439 A.2d 160
    Carol GERARDI v. HARLEYSVILLE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1981.
    Filed Dec. 18, 1981.
    Petition for Allowance of Appeal Denied Feb. 26, 1982.

      William H. Pugh, II, Norristown, submitted a brief on behalf of appellant.
    Lawrence Sager, Pottstown, for appellee.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   PER CURIAM:

Appellee, Carol Gerardi, was injured in an automobile accident which occurred on the island of St. Lucia. At the time of the accident, the automobile in which appellee was a passenger was uninsured. However, appellee carried an automobile insurance policy issued by the appellant, Harleysville Insurance Company, which included uninsured motorist coverage, but which did not cover accidents occurring outside of “the United States of America, its territories or possessions, Puerto Rico or Canada.” St. Lucia is an independent nation and, of course, does not fall within any of the areas enumerated. Appellant refused appellee’s claim for uninsured motorist benefits, citing the territorial restriction clause in appellee’s policy. Appellee filed suit against appellant and the lower court granted appellee’s Motion for Partial Summary Judgment, finding the territorial restriction to be in violation of the Uninsured Motorists Act, Act of August 14, 1963, P.L. 909, § 1, as amended, 40 P.S. § 2000 (hereinafter the Act). Appellant filed this appeal. We affirm the lower court.

The issue here is whether a territorial restriction provision in an uninsured motorist’s policy is valid and enforceable as a matter of law. There is a split of authority in other jurisdictions regarding this issue—decisions upholding the exclusion include Transamerica Insurance Company v. McKee, 27 Ariz.App. 158, 551 P.2d 1324 (1976); Kvalheim v. Farm Bureau Mutual Insurance Company, 195 N.W.2d 726 (Iowa 1972); American Casualty Co. v. Foster, 31 Misc.2d 818, 219 N.Y.S.2d 815 (1961); holding the exclusion invalid: Mission Insurance Company v. Brown, 63 Cal.2d 508, 47 Cal.Rptr. 363, 407 P.2d 275 (1965); cf. Touchette v. Northwestern Mutual Insurance Company, 80 Wash.2d 327, 494 P.2d 479 (1972) (citing Mission Insurance Company v. Brown).

In Pennsylvania, uninsured motorist insurance is legislatively controlled by the Act. It is axiomatic that “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a) (Supp. 1981-82). Primary consideration should be given to the language of the statute. 1 Pa.C.S.A. § 1921(c) (Supp. 1981-82). Appellant argues that the exclusion should be permitted in the policy because the Act does not explicitly proscribe such a limitation. We disagree. Subsection (e) of the Act sets forth those instances in which a policy may provide that “[t]he coverage required by . . . [the Act] does not apply. . . . ” Appellant concedes that no territorial limitation is authorized or provided for in subsection (e). It is an elementary rule of statutory construction that “[e]xceptions expressed in a statute shall be construed to exclude all others.” 1 Pa.C.S.A. § 1924 (Supp. 1981-82). Under the circumstances, we can only conclude that it was the legislature’s intention not to permit any territorial exclusion.

Nor does an examination of the spirit of the Act help the appellant. Our courts have found that

[t]he purpose of the uninsured motorist law is to provide protection to innocent victims of irreponsible [sic] drivers. ...

Sands v. Granite Mutual Insurance Company, 232 Pa.Super. 70, 78, 331 A.2d 711, 716 (1974), citing Harleysville Mut. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968).

Traditionally, this statute has been construed liberally, with courts exercising a pronounced propensity to find coverage unless equally strong legal or equitable considerations to the contrary are present; any conditions or restrictions in an insurance policy which are held to be in derogation of the legislative purpose of the uninsured motorist law are void as against public policy. See Adelman v. State Farm Mutual Insurance Co., 255 Pa.Super. 116, 386 A.2d 535 (1978); Sands v. Granite Mutual Insurance Co., 232 Pa.Super. 70, 331 A.2d 711 (1974). Additionally, the statute “mandates a floor of minimum protection to be afforded to the owner/operator of a motor vehicle within the Commonwealth. The legislature has permitted enhancement of that minimum protection, but we believe the statute does not permit a diminution of that protection below the statutory limits.” State Farm Mutual Automobile Insurance Co. v. Williams, [481 Pa. 130, 139-40, 392 A.2d 281, 285 (1978)]. . . .

Brader v. Nationwide Mutual Insurance Company, 270 Pa.Super. 258, 263, 411 A.2d 516, 519 (1979).

It is apparent, therefore, that not only is the language of the statute free from ambiguity in excluding territorial limitations, but that the spirit of the statute calls for the same result. See also Shamey v. State Farm Mutual Automobile Insurance Company, 229 Pa.Super. 215, 331 A.2d 498 (1974) (An uninsured motorists clause in an insurance contract must be interpreted to effect the legislative intent, and any conditions or restrictions in the policy in derogation of that end are void as against public policy). It is clear that protection of the insured person from the uninsured is of paramount concern under the legislative scheme as enunciated in the Act.

Finally, we do not believe that we are placing upon insurance companies the burden of unlimited fraudulent claims. As this court stated in Webb v. United Services Automobile Association, 227 Pa.Super. 508, 520, 323 A.2d 737, 743 (1974), “[t]o provide the maximum coverage consistent with avoidance of fraudulent claims, it is only necessary to require that the plaintiff prove his case.”

The order of the lower court is affirmed.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I dissent. I would hold that the territorial restriction provision contained in the within uninsured motorist's policy of insurance is valid and enforceable as a matter of law. The statute is silent as to territorial coverage and/or limitation or exclusion. It is obvious that the Legislature did not consider this matter. The Legislature was concerned only with exclusion of property damage, personal injury claims which were settled without the knowledge of the insurer, or instances where no fault would insure to the benefit of a workmans compensation carrier.

It is of interest to here note that the Pennsylvania Supreme Court had the following comment concerning territorial no fault coverage, in State Farm Mutual Automobile Insurance Company v. Williams, 481 Pa. 130, 392 A.2d 281 at 285 (1978):

The above statute mandates a floor of minimum protection to be afforded to the owner/operator of a motor vehicle within the Commonwealth. The legislature has permitted enhancement of that minimum protection, but we believe the statute does not permit a diminution of that protection below the statutory limits. (Emphasis added).

The majority would provide Pennsylvania no-fault benefits to an individual involved in an accident which occurred on the island of Santa Lucia while a passenger in an uninsured motor vehicle. I respectfully submit that this will further contribute to the fiasco known as Pennsylvania No-Fault.

I would reverse and enter Judgment on the pleadings in favor of appellant.

      . Appellant’s brief does not contain a Statement of Jurisdiction, Pa.R.A.P. 2111(a)(1) and 2114, nor an Order in Question, Pa.R.A.P. 2111(a)(2) and 2115. These omissions are serious, and such practice should not be repeated.

      . It will also be noted that nowhere does the Act explicitly permit such a territorial limitation.


author: CERCONE, President Judge: WICKERSHAM, Judge,

text:
    439 A.2d 162
    COMMONWEALTH of Pennsylvania v. David J. PICKER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1981.
    Filed Dec. 29, 1981.

      David J. Picker, Norristown, in pro. per.
    Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   CERCONE, President Judge:

This is an áppeal from the judgment of sentence of the Court of Common Pleas of Montgomery County imposing a fine upon appellant for the summary offense of speeding in violation of the Vehicle Code, 75 Pa.C.S. § 3362(a)(1). Appellant was initially found guilty by his local district justice and ordered to pay a fine. He appealed his summary conviction to the court of common pleas which held a de novo trial on the charge. Appellant was again found guilty and ordered to pay a fine by order of court dated May 22, 1980. This appeal followed.

The state of this record is reflective of the confusion which existed in the legal community before our en bane decision in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant Picker on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.Pr. 1123(c). Commonwealth v. Koch, supra. See also Commonwealth v. Johnston, 292 Pa.Superior Ct. 224, 437 A.2d 16 (1981); Commonwealth v. Williams, 290 Pa.Superior Ct. 158, 434 A.2d 179 (1981). Cf. cases with respect to motions to modify sentence under Pa.R.Crim.P. 1405(c), Commonwealth v. Walton, 289 Pa.Superior Ct. 411, 433 A.2d 517 (1981); Commonwealth v. Koziel, 289 Pa.Superior Ct. 55, 432 A.2d 1031 (1981); Commonwealth v. Rush, 281 Pa.Superior Ct. 92, 421 A.2d 1163 (1980). In fact, the lower court, just as the lower courts in Koch, Williams and Johnston improperly pronounced verdict and sentence simultaneously through a written order made subsequent to the conclusion of the de novo trial. This effectively precluded the appellant from having the opportunity to file post-verdict motions which should properly be filed after the verdict is rendered, but before sentence, in this case a fine, is imposed. See Comment to Pa.R.Crim.P. 1123. The proper procedure for litigants to follow in this situation would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions. Appellant Picker, however, should not be faulted for his failure to do so because of the confusion which existed before Koch and the recent amendments to the Comments to Rules 67 and 1123 of the Rules of Criminal Procedure. See Commonwealth v. Johnston, supra, 292 Pa. Superior Ct. at 224 n.3, 437 A.2d 16.

Finally, we note that in this case the lower court, pursuant to Pa.R.App.P. 1925(b), issued an order directing appellant to file of record a concise statement of the matters complained of on appeal. Thus, the appellant did so and the lower court specifically addressed these issues in its opinion in support of an order pursuant to Pa.R.App.P. 1925(a). This, however helpful, is certainly not an adequate substitute for the filing of post-verdict motions because the latter ask the lower court to reconsider its decision in light of alleged errors whereas the former simply requires the court to justify and articulate the reasons for its decision. This distinction is crucial in light of the fact that one of the main purposes for requiring post-verdict motions is to give the lower court an opportunity to correct asserted errors at that early stage without necessitating the expenditure of time and judicial energy in taking a costly appeal to the appellate courts. See Commonwealth v. Koch, 288 Pa.Superior Ct. at 296, 431 A.2d at 1055. In Koch, we stated that “[t]he purpose of such motions is twofold: (1) to afford the trial court in the first instance, the opportunity to correct asserted trial errors; and (2) to clearly and narrowly frame issues for appellate review. Commonwealth v. Kinsey, 249 Pa.Superior Ct. 1, 375 A.2d 727 (1977).” While a concise statement of matters complained of on appeal may narrow the issues for review, it does not allow the lower court the opportunity to correct its errors because the notice of appeal has already been filed and the lower court is thereby divested of jurisdiction to act further on the case. Pa.R.App.P. 1701(a).

For all of the foregoing reasons, the judgment of sentence is vacated and the case is remanded for the filing of post-verdict motions nunc pro tunc within 10 days of the filing of this order. Jurisdiction is relinquished.

WICKERSHAM, J., files a concurring statement.

WICKERSHAM, Judge,

concurring:

Although I agree with the post-verdict analysis. I do not believe a remand is necessary. The record presently before the court is more than adequate for the disposition of the issues raised. Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981).

      . The issues raised in appellant’s brief read as follows:

        Statements of Questions Involved

      I. DOES THE FAILURE OF A DISTRICT JUSTICE TO HOLD AN ORIGINAL HEARING UNDER PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 55-2(a) WITHIN THREE TO TEN DAYS AFTER A DEFENDANT APPEARS PERSONALLY AND POSTS THE SECURITY REQUIRED BY THE ISSUING AUTHORITY REQUIRE A DISMISSAL OF THE CHARGES AGAINST A DEFENDANT? THIS ISSUE ANSWERED IN THE NEGATIVE BY THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.
      II. WHERE THE COMMONWEALTH JOINS IN AND MOVES FOR A DISMISSAL OF THE CHARGES AGAINST AN ACCUSED IN A SUMMARY CASE ARISING FROM AN ALLEGED VIOLATION OF THE MOTOR VEHICLE CODE, DOES THE LOWER COURT HAVE THE AUTHORITY TO REJECT SAID MOTION BY THE COMMONWEALTH? THIS WAS ANSWERED IN THE NEGATIVE BY THE LOWER COURT, BUT NOT DISCUSSED IN THE OPINION OF THE LOWER COURT.
      III. WHERE AN ACCUSED IS CHARGED WITH SPEEDING UNDER THE MOTOR VEHICLE CODE AND THE APPARATUS OF A TWO WAY RADIO TRANSMITTER IS USED AS AN ESSENTIAL PART OF THE COMMONWEALTH’S CASE, AND WHERE THE COMMONWEALTH FAILS TO INTRODUCE PROOF CERTIFYING THE TESTING AND ACCURACY OF SUCH ELECTRONIC DEVICE, HAS THE COMMONWEALTH FAILED TO MEET THE BURDEN OF PROOF THEREBY REQUIRING A DISMISSAL OF THE CHARGES AGAINST AN ACCUSED? THIS WAS ANSWERED IN THE NEGATIVE BY THE LOWER COURT.
      IV. DID THE LOWER COURT COMMIT ERROR IN FINDING THAT THE TESTIMONY ESTABLISHED THE GUILT OF THE APPELLANT BEYOND A REASONABLE DOUBT WHERE THE COMMONWEALTH’S CASE IS BASED SOLELY ON THE TESTIMONY OF A SPEED ENFORCEMENT TEAM CONSISTING OF THREE POLICE OFFICERS NONE OF WHOM OBSERVED THE VEHICLE DRIVEN BY THE ACCUSED THROUGH THE ENTIRE MEASURED SPEED ZONE? THIS WAS ANSWERED IN THE NEGATIVE BY THE LOWER COURT.


author: SPAETH, Judge: O’KICKI, Judge,

text:
    439 A.2d 165
    Behrooz NAZER, Appellant, v. SAFEGUARD MUTUAL ASSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1979.
    Filed Dec. 29, 1981.

      Michael L. Levy, Philadelphia, for appellant.
    Robert M. Silverman, Philadelphia, did not file a brief on behalf of appellee.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       Pres. Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   SPAETH, Judge:

This appeal is from an order sustaining preliminary objections and dismissing an action against an automobile insurance carrier for violation of the Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589, No. 205, 40 P.S. § 1171.1 et seq. The lower court held that the complaint did not state a cause of action. We affirm.

Appellant’s automobile was destroyed in an accident with an automobile driven by one Victor Rozier, who was driving with the permission of Thomas Rozier, appellee’s insured. Appellee initially rejected appellant’s claim, but when appellant brought suit against the Roziers, appellee offered him $1,000 for the value of his automobile. Appellant refused the offer, and the case went to arbitration. The arbitrators awarded appellant $1,200, which was the amount he had paid for his automobile two months before the accident, and was the amount he had demanded. Rather than paying the award, appellee appealed, spending, according to appellant’s figures, approximately $275 in order to do so.

Appellant then commenced this action in trespass directly against appellee, alleging that its handling of his claim, including the initial complete rejection of the claim and the appeal from arbitration, constituted violations of various provisions of the Unfair Insurance Practices Act. In his complaint appellant asked for “judgment against the defendant in an amount in excess of $10,000 for [the] expenses, costs and attorneys [sic] fees incurred in [the underlying automobile accident litigation] and in punitive damages for the wilful violation of the Unfair Insurance Practices Act.” Appellee filed preliminary objections to the complaint. In sustaining the objections and dismissing the complaint, the lower court held that the Unfair Insurance Practices Act does not confer rights on private parties, and that the only remedies provided by the Act are those which the Insurance Commissioner is authorized to pursue. Slip op. at 3.

Appellant’s theory on appeal, expressed in his brief, Brief for Appellant at 2, 5, and repeated at oral argument, is that the Unfair Insurance Practices Act states the public policy of Pennsylvania, and that violation of that policy gives rise to a common law cause of action. However attractive this argument might otherwise be, it has been foreclosed by the Supreme Court in D’Ambrosio v. Pennsyl vania National Mut. Casualty Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981), where the Court held that the sanctions provided by the Act were not to be supplemented by a judicially created cause of action.

The relief sought by appellant—judgment in excess of $10,000—is not what the Act provides as penalties for its violation. 40 P.S. § 1171.11. Appellant’s suit may therefore not be viewed as an attempt by a private party to enforce the Act, and it is unnecessary for us to consider whether there are any circumstances in which such an attempt would be proper.

O’KICKI, J., files a dissenting opinion.

O’KICKI, Judge,

dissenting:

On July 16, 1976, Appellant was struck from the rear by an automobile driven by Victor Rozier who was driving with the permission of Appellee’s insured, Thomas Rozier. Appellant was driving his own motor vehicle, a 1971 Volkswagon Squareback which he had purchased two months before the accident for the sum of $1,200.00. The automobile was totally demolished and Appellant filed a claim for property damage for the total loss of the vehicle with Safeguard Mutual Assurance Company, the Appellee herein. The Appellee rejected the claim asserting as a basis that its insured was not at fault because of the weather conditions at the time of the accident. Appellant then instituted a suit against Victor and Thomas Rozier which was defended by the Safeguard. An Arbitration Hearing was scheduled. Immediately prior to the hearing an offer in settlement of $1,000.00 was made by Appellee and rejected by Appellant. This course of action was taken because Appellant felt since liability was clear that he was entitled to the value of the automobile as he bought it two months previously, i.e., the car would not have depreciated $200.00 in two months. The Appellee conceded liability during the Arbitration Hearing but presented no evidence concerning the value of Appellant’s vehicle. An award of $1,200.00 was entered in favor of the Appellant which was appealed by Appellee, who also demanded a jury trial.

Appellant then filed this action against the Appellee under the Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589, 40 P.S. § 1171.1 et seq., seeking damages for breach of the public policy of this state as per the above-cited Act. Appellee’s Preliminary Objections were filed and granted by the Trial Court and this appeal followed.

Appellant predicates his cause of action upon the fact that Appellee appealed a $1,200.00 award which was $200.00 over the $1,000.00 it was willing to pay in settlement. Appellee’s appeal resulted in its cost of $275.00 in filing fees, etc. Thus, the Appellee paid $275.00 to avoid paying the $200.00 over its offered settlement amount. Appellant claims that this type of action on the Insurance Company’s part is against the policy of the Unfair Insurance Practices Act, such policy being to define and prohibit unfair methods of competition or unfair or deceptive acts or practices. 40 P.S. § 1171.2.

Appellant further cites 40 P.S. § 1171.5(a) as the specific practices alleged that the Appellee has committed in violation of the Act. They are:

(vi) Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which the company’s liability under the policy has become reasonably clear.
(vii) Compelling persons to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts due and ultimately recovered in actions brought by such persons, (xi) Making known to insureds or claimants a policy of appealing from arbitration awards in favor of insured or claimants to induce or compel them to accept settlements or compromises less than the amount awarded in arbitration.

The actions of Appellee are squarely addressed by our Legislature. The Appellant has standing to prove the alleged violations since he is a direct party in interest. Appellant could have elected to secure the participation of the Insurance Commissioner.

Although a line of cases throughout other jurisdictions have held that such actions are allowable as a “new tort”, this independent cause of action has been rejected in our jurisdiction. D’Ambrosio v. Pennsylvania National, 494 Pa. 501, 431 A.2d 966 (1981) quoting Kircher, Insurer’s Mistaken Judgment—A New Tort?, 59 Marq.L.Rev. 775 (1976). See also Smith v. Harleysville Insurance, 494 Pa. 515, 431 A.2d 974 (1981). Both of these cases have held:

“There is no evidence to suggest, and we have no reason to believe, that the system of sanctions established under the Unfair Insurance Practices Act . . . must be supplemented by a judicially created cause of action . . . Surely it is for the Legislature to announce and implement the Commonwealth’s public policy governing the regulation of insurance carriers. In our view it is equally for the Legislature to determine whether sanctions beyond those created under the Act are required to deter conduct which is less than scrupulous,” D'Ambrosio, supra, 494 Pa. at 507, 431 A.2d at 970.

While the Act grants to the Commissioner the authority to commence a cause of action for such unfair practices enumerated above, and while the Insurance Commissioner is empowered to investigate the affairs of every person engaged in the business of insurance in this State to determine if the Act has been violated and to impose the allowed sanctions or civil penalties, 40 P.S. § 1171.7, § 1171.10, § 1171.11, the plaintiff has standing, as a member of the class protected by the legislation, to commence this action.

We recognize the fact that the Insurance Commissioner has authority to investigate unfair practices and commence the cause of action against these practices.

We also subscribe to the dicta of D'Ambrosio v. Pennsylvania National, 494 Pa. 501, 431 A.2d 966 (1981) (filed July 8, 1981) as stated in the body of our opinion.

However, we do not consider the action taken here by Plaintiff to embody such a “new tort” as stated in D'Ambrosio, supra. Rather, Plaintiff is a direct party in interest and, as such, is given the choice of commencing the action in his name or by the recruitment of the Insurance Commissioner to do so.

The policy and practice of our legal system has never been to limit the rights of a person—but to expand them as justice requires. The courts are reluctant to require a party, who has an action in his own right, to exercise that right only through the discretion of another, i.e. the Insurance Commissioner in this case.

In this case, although Plaintiff could very well have allowed the Commissioner to take up arms in his behalf, he chose not to do so but elected instead to pursue the matter himself—a long recognized right attached to the basic Constitutional rights of each citizen.

Plaintiff’s ability to choose such a course of action limits the occasions where he must “sit on his rights” until the Insurance Commissioner decides to file an action on his behalf.

This statutory interpretation leads to an efficient system of justice.

The order of the lower court should be reversed.


text:
    446 A.2d 976
    COMMONWEALTH of Pennsylvania, v. Ida BLAKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1979.
    Filed Dec. 29, 1981.

      Andrew F. Schneider, Assistant Public Defender, Doylestown, for appellant.
    Louis Floge, Cornwells Heights, did not file a brief on behalf of participating party.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   SPAETH, Judge:

This appeal is from an order entered pursuant to section 303 of the Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143, as amended, 50 P.S. § 7303, committing appellant to a mental hospital for extended involuntary emergency treatment. Appellant argues that the evidence was insufficient to support the commitment. We agree, and therefore vacate the order.

Section 301(a) of the Mental Health Procedures Act, 50 P.S. § 7301, provides that a person may be subjected to involuntary examination and treatment only if that person is so “severely mentally disabled” that he “poses a clear and present danger of harm to others or to himself.” Section 301(b) provides specific, narrow, definitions of “clear and present danger”:

Clear and present danger to others shall be shown by establishing that within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated.
Section 301(b)(1), 50 P.S. § 7301(b)(1) (in relevant part) Clear and present danger to himself shall be shown by establishing that within the past 30 days:
(i) the person has acted in such manner as to evidence that he would be unable, without care, supervision and the continued assistance of others, to satisfy his need for nourishment, personal or medical care, shelter, or self-protection and safety, and that there is reasonable probability that death, serious bodily injury or serious physical debilitation would ensue within 30 days unless adequate treatment were afforded under this act[.]

Section 301(b)(2), 50 P.S. § 7301(b)(2) (in relevant part) Not only are these sections narrowly drawn, we have held that the entire Act is to be construed strictly. In re S. C., 280 Pa.Superior Ct. 539, 546, 421 A.2d 853, 857 (1980).

The incident giving rise to appellant’s commitment occurred on April 9, 1979. Shortly before noon appellant, a woman in her middle sixties, had arrived at the Bucks County Nutrition Center, which was located about six miles from her home, in a bus driven by Jean Murphy, a driver for Bucks County Adult Services. For some reason appellant became upset and left the Center on foot. It was a rainy day and she was carrying an umbrella. Ms. Murphy went looking for her and found her about 50 yards away. When Ms. Murphy took appellant’s elbow to help her into the bus, appellant struck her once with the umbrella. She then voluntarily entered the bus and was driven home.

At the informal hearing before the mental health review officer, four people testified in support of appellant’s commitment: Ms. Murphy; Lewis McGrath, also apparently with Adult Services although his exact title is not in the record; Dr. John H. Houey, staff psychologist at Eugenia Hospital; and Jacqueline Hancock, geriatric social coordinator at the hospital. On the basis of their testimony, the mental health review officer found that appellant represented a clear and present danger to others.

After listening to a tape recording of the proceeding before the mental health review officer, and after hearing the argument of appellant’s counsel, the lower court found that it did not agree with the officer that appellant represented a clear and present danger to others. However, the court found that she did represent a danger to herself, and on that basis, continued the officer’s order of involuntary commitment in effect without change.

In our view, the testimony before the mental health review officer was insufficient to show that appellant represented a clear and present danger either to others, as the officer found, or to herself, as the lower court found.

The testimony concerning the incident at the Center indicated that appellant became upset, left the Center, and walked away about 50 yards. Contrary to the lower court’s statement, Slip op. at 3, there was no testimony that showed she was intending to walk home, or, for that matter, that walking home would have probably resulted in “death, serious bodily injury or serious physical debilitation.” The testimony indicated that appellant is a sensitive person, who is hard to deal with. She is proud, does not like to be touched by others, and because of a hearing problem, has some trouble communicating with others. She said that she did not want to take the medication the hospital was giving her because she was a Christian Scientist.

In support of its finding that appellant was a danger to herself, the lower court cited the testimony of Dr. Houey, the staff psychologist. Dr. Houey had spent a total of one hour and forty-five minutes with appellant at the hospital after her initial involuntary commitment—ten or fifteen minutes the day after she was admitted, an hour the following day, and 30 minutes the morning of the hearing. The core of his testimony concerning appellant’s danger to herself and others was as follows:

Q. Do you feel at the present time she’s in danger to others or herself?
A. I think more like to herself.
Q. What makes you say that?
A. She might get into trouble.
Q. I’m not sure I understand what you mean.
A. Because of suspicious problem with trusting people, I don’t know, I don’t know how much was delusional.
Q. Do you have any evidence of delusional behavior?
A. No, I don’t think I do I try—(garbled sentence).
Q. Well, let’s take this one at a time. As far as her danger to others, specifically in instances related or referred to by Mrs. Murphy.
A. All right, she might accuse someone without any grounds, they might get into altercation or accusations.
* * * $ s|: *
Q. Do you feel that she could be managed on a partial hospitalization or outpatient basis at the present time?
A. I don’t think she can.
Q. Why do you say that?
A. I think she needs constant supervision, she might wander in the street, she might just walk away, not because she’s disoriented, she’s oriented.
Q. She is oriented?
A. She’s oriented.
Q. Well, what makes you think she’s a danger to herself, then?
A. She’s afraid to interact with other people cause I have observed her, she doesn’t socialize, she doesn’t interact, when someone approaches who might ask her questions she might walk away, she started talking about unfailures [sic], injustices by ladies, by people, by numerous people.

N.T. 30-31.

None of the witnesses at the hearing before the mental health review officer could cite any instance of appellant’s ever having hit anyone other than the incident with the umbrella, much less any instance of her having caused or attempting to cause serious bodily harm to another person. Dr. Houey was not asked how the behavior he described could probably lead to “death, serious bodily injury or serious physical debilitation within 30 days,” and we fail to see how it could. There was the testimony by Murphy and McGrath that appellant had been hard to deal with for a long time and was the subject of complaints from a number of sources, but if anything, this testimony argues against a finding that her pattern of behavior was immediately life-threatening in the manner required by section 301(b)(2)(i).

Although the mental health review officer heard Dr. Houey testify that he believed that appellant needed constant supervision, her order only provided that appellant’s involuntary commitment should continue for no more than ten days, and that appellant should be discharged if it were possible to arrange to have certain recommended tests done on an outpatient basis. Given this order, and the testimony before the mental health review officer, we find ourselves in agreement with appellant’s counsel, when he argued to the lower court:

I have what I perceive is the heart of the matter and that is the mental health review officer thought that [appellant] needed testing. I myself think she needs testing but under the mental health act I don’t think she is committable, I think the evidence is insufficient as to the danger to herself or others; and at least at this point in time she knows what her rights are and has asserted her rights.... [S]he speaks about her Christian Science beliefs and it’s unclear on the record as to how they affect her as far as volunteering to get testing. I think under the Act she is simply not committable involuntarily.

N.T. 48-49.

It is not enough to find, as the lower court did, that appellant “was truly in need of the services offered by [the] mental health system.” Slip op. at 6. Unless one or more of the requirements of section 301, 50 P.S. § 7301, is met, involuntary commitment is not lawful. In Re S. C., supra. See also, O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975).

The order of the lower court is vacated.

O’KICKI, J., files a dissenting opinion.

O’KICKI, Judge,

dissenting:

On April 23, 1979, a hearing was held before the Civil Division of the Court of Common Pleas of Bucks County pursuant to Section 303(g) of the Mental Health Procedures Act, 1976, July 9, P.L. 817, No. 143, Section 101, 50 P.S. Section 7303, in which that Court reviewed the ten-day commitment of Ida Blaker under Section 303 of that Act by the Bucks County Mental Health Review Officer to Eugenia Hospital for the limited purposes of performing an EEG test and a CAT scan test. After having heard a tape of the proceedings held before the Review Officer, the Trial Court found that Mrs. Blake (Appellant) represented a clear and present danger to her own safety, and therefore affirmed the Mental Health Review Officer’s Order for further involuntary treatment. That order has been appealed.

Appellant first contends that the issue before us is not moot even though her commitment order expired at the time of the adjudication. The record reflects that following the Trial Court’s Order of April 23,1979, only six days remained on the Mental Health Review Officer’s original order of commitment, the order having been entered on April 19, 1979. An appeal was then filed on April 27, 1979, and notice of appeal was received by the Trial Court on April 30, 1979, at which time the commitment order had already expired.

The Trial Court, in its Opinion, did not render a decision on this issue but rather, after citing authority, and with a brief discussion upholding its mootness, decided the merits of the issues of the case by “assuming, however, that the case is not found to be moot.”

The Trial Court, in its discussion of mootness, relys upon In re Gross, 476 Pa. 203, 324 A.2d 116 (1978) where it was held that there was nothing further to be done by the Trial Court since the Appellant was no longer an inpatient, was being treated by his own physician and was no longer being administered medication against his will (the latter being the basis of the injunction sent). Although the factual change was one basis for the holding in Gross, id, that holding was also based upon a change in law which distinguishes it from the case before us. Further, the Trial Court’s opinion at footnote 8 quotes Gross, id, as stating, “A different situation is presented in cases involving a prayer for damages or where Appellant is suffering a continuing harm.” (emphasis ours)

The question of a type of continuing harm has been addressed by various courts, Appellant cites Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972). “Civil commitment entails a massive curtailment of liberty.” and Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323, 331 (1979): “Whether we label this phenomena ‘stigma’ ... it can have a very significant impact on the individual.” The Trial Court interprets the term ‘continuing harm’ in Gross, supra, as encompassing some type of physically measurable harm. We choose to interpret the term as also encompassing a more elusive type of harm which other courts have referred to as ‘stigma’. The courts have recognized that this stigma of being branded a mentally ill patient is as great as and may be more significant than being branded a criminal. Commonwealth ex rel. Finken v. Roop, 234 Pa.Super. 155, 339 A.2d 764, 771 (1976).

Further, Commonwealth ex rel. Bielat v. Bielat, 257 Pa. Super. 446, 390 A.2d 1321 (1978) held specifically that even though the committee (patient) was already discharged from the state hospital, the appeal from the order of involuntary commitment was not moot. (Citing Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972) where an appeal was decided in a criminal case even though Appellant had died pending the appeal and Wolfe v. Beal, 477 Pa. 472, 384 A.2d 1187 (1978) where the records of a person unlawfully committed to a state mental hospital may be expunged and thus the issue was not moot).

As illustrated by the authority cited above, it is sometimes necessary to address an issue which, although moot as to actual facts or as to concrete aspects of the question, requires an evaluation of a more etheral nature. That is the case here. The question presented in this case is not moot for the reason set forth above, i.e. the Appellant is suffering a continuing harm to her reputation and is enduring the stigma of identification as an involuntarily committed mental patient—If this identification is incorrect, then she must be vindicated by a repeal of the Trial Court’s Order.

The merits of this case now must be considered. The incidents leading up to Appellant’s commitment are not in dispute. On April 8, 1979, Appellant was taken to the Nutrition Center, a county sponsored Senior Citizen service, on a bus driven by one Jean Murphy. Later in the day Appellant apparently became involved in an altercation with some of the other people at the center, and decided to walk home. It had been raining hard and Appellant, a 66 year old woman, would have had to have walked 6 miles through a highly congested area, including crossing two major four-lane highways, in order to get home. Mrs. Murphy and local police eventually found her on a driveway about 50 yards from the center, and tried to get her onto the bus. When touched by Mrs. Murphy, Appellant struck her once with an umbrella. Finally, she did board the bus and dozed the rest of the way home. (N.T., pp. 11-15).

At the hearing before the Mental Health Review Officer, Dr. Houey (Yoo), a staff psychologist at Eugenia Hospital, also testified that, in his medical opinion, Appellant suffered from a mental disease which caused her to be excessively suspicious of people and which tended to make her extremely excitable. He felt that it was quite possible, due to her low tolerance for frustration, that she might strike someone else again, but stated that the greatest danger at the time was to herself. Finally, he testified that she required inpatient therapy as opposed to outpatient, as she needed constant supervision to prevent her from wandering away as she had from the Nutrition Center. (N.T., pp. 28-34).

Appellant contends that she was prejudiced by the Trial Court having continued her commitment upon another basis than that found by the Mental Health Review Officer. Appellant had originally been determined by the reviewing officer to have been a danger to others, whereas the Trial Court felt that the more serious problem was that she presented a danger to herself. We, like the Trial Court, fail to see that Appellant’s counsel’s alleged lack of notice of the latter basis for commitment could possibly have changed his preparation for the hearing. The factual basis for the finding was based on precisely the same series of events related to the review officer.

Appellant contends that although the Trial Court’s interpretation of 50 P.S. 7303(g) (Supp. 1979-1980) is correct in allowing a de-novo review of the commitment petition that Court’s use of this review violated the due process clause of the Constitution.

The due process clause of the Constitution does indeed require certain elements, among which are notice sufficient to rebut the allegations and to prepare initial defenses. We, however, in accordance with the Trial Court, cannot visualize the situation where there are such differing requirements between defending allegation of harm to others and the allegation of harm to oneself. The facts are undisputed and the Appellant’s actions are the determining factors in the Trial Court’s decision. Whether they are interpreted as evidencing a clear and present danger to oneself or others, the Trial Court was justified in continuing the limited commitment of appellant on the factual conclusion of possible harm itself.

“Pennsylvania courts have not fully delineated the nature of the process that is due with respect to civil commitment. There is no question that the substantial deprivation of individual liberty inherent in such commitments may only be accomplished in accordance with due-process standards.” Commonwealth v. McQuaid, 464 Pa. 499, 347 A.2d 465 (1975).

“A finding of ‘mental illness’ alone cannot justify a state’s locking up a person against his will . . . there is still no constitutional basis for confining such person involuntarily if they are dangerous to no one and can live safely in freedom.” O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975). Thus, by interpretation of O’Connor, id, it can be said that there is a constitutional basis for confinement if they are dangerous and can’t live safely in freedom—either to self or others.

In addition, when reading Section 303(g) of the Mental Health Procedures Act, which provides in pertinent part:

“In all cases in which the hearing was conducted by a mental health review officer, a person made subject to treatment pursuant to this section shall have the right to petition the court of common pleas for review of the certification. A hearing shall be held within 72 hours after the petition is filed unless a continuance is requested by the person’s counsel. The hearing shall include a review of the certification and such evidence as the court may receive or require. If the court determines that further involuntary treatment is necessary and that the procedures prescribed by this act have been followed, it shall deny the petition. Otherwise, the person shall be discharged.”

Along with O’Connor, supra, and McQuaid, supra, it is clear that the statutory language provides for a de novo review of the certification and allows the court to hear new evidence above and beyond that considered by the Mental Health Review Officer. In view of the fact that any new evidence received and utilized by the Trial Court in its decision was substantially the same as that originally alleged (i.e. the harm is the same, the victim is different) and that since the actual due process requirements in a civil commitment have not been strictly delineated (McQuaid, supra) we find that the Trial Court not only did not violate Appellant’s due process rights as to notice but used its discretion in receiving and reviewing the evidence with Appellant’s best interest of paramount concern.

Finally, Appellant contends that the evidence was insufficient to establish that she was a clear and present danger to herself or others. After a review of the facts, we find that the record amply demonstrates that she was in need of further testing and treatment. The incident at the Nutrition Center, taken together with her violent outburst against Mrs. Murphy, and perhaps the most telling of all, Dr. Houey’s testimony, leads us to affirm the Trial Court’s conclusion that Appellant could not adequately care for herself and would, in all probability, seriously endanger herself in the near future. As in Commonwealth ex rel. Gibson v. DiGiancinto, 261 Pa.Super. 53, 395 A.2d 938 (1978) (although a criminal factual situation, we feel the involuntary commitment there analogous to the situation before us), we find that Appellant’s “capacity to exercise self-control, judgment and discretion in the conduct of his (her) affairs and social relations, or to care of his (her) own personal needs was so lessened that he (she) posed a clear and present danger of harm to others and self and his (her) involuntary commitment to a mental hospital was the 'least restrictive alternative’ available.”

There are two operative legal mechanisms, i.e. “clear and present danger” and “least restrictive alternative”. Commonwealth ex rel. Platt v. Platt, 266 Pa.Super. 276, 404 A.2d 410 (1979) defines the former. That case held that a “clear and present” danger is presented if a person has, within the last 30 days, inflicted or attempted to inflict serious bodily harm on another and there is a reasonable probability that such conditions will be repeated. Thus, as can be deduced from the facts of the case before us, Appellant did present a “clear and present danger”.

As to the “least restrictive alternative”, Appellant required testing in order to determine the extent and seriousness of her mental illness. Dr. Houey testified that she required constant supervision in order to prevent her from simply wandering in the streets. We agree with the Trial Court that Dr. Houey’s estimation of a ten days minimum time for testing is not excessive. Although he had recommended 20 days, the Mental Health Review Officer found the less restrictive 10 days commitment to be more appropriate, and Dr. Houey modified his recommendation to conform to that determination. Thus, the Mental Health Review Officer’s Order did not represent the least restrictive alternative.

The Trial Court found, from “personal observation”, that Appellant was truly in need of the services offered by the mental health system (Opinion at Page 170). We find no substance in fact or in law to overturn this conclusion.

Accordingly, I would affirm.

      . Appellant has argued other issues, but we do not reach them. The lower court expressed the view in its opinion that this appeal was moot because the order of involuntary commitment expired two days after this appeal was taken. However, because involuntary commitment affects an important liberty interest, and because by their nature most involuntary commitment orders expire before appellate review is possible, this appeal is not moot. In re S. C., 280 Pa.Superior Ct. 539, 421 A.2d 853 (1980); In re Ann S., 279 Pa.Superior Ct. 618, 421 A.2d 370 (1980); Commonwealth ex rel Bielat v. Bielat, 257 Pa.Superior Ct. 446, 390 A.2d 1321 (1978).

      . According to appellant’s brief, at 5, the correct spelling of the psychologist’s name is “Yoo.” Because it is consistently spelled “Houey” in the notes of testimony and the lower court opinion, we shall do the same.

      . Although appellant does not raise this point, we cannot help but note that contrary to the requirement of § 303(c), 50 P.S. § 7303(c), no examining physician testified at the hearing before the mental health review officer. At times during his testimony Dr. Houey answered questions in terms of his understanding of the attending physician’s diagnosis. His answer to the question, “What therapy are you recommending?” was, “Attending physician, I have to speak to attending physician. He placed her on (garbled) two capsules.” N.T. 29. According to the Application for Extended Involuntary Treatment, which is part of the record, the attending physician was a Dr. Goldstein. There was no explanation for his failure to testify.


author: SPAETH, Judge:

text:
    439 A.2d 174
    Neil R. BAHR, trading as Bahr Brothers, Appellant, v. Wanda PASKY.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1981.
    Filed Dec. 29, 1981.

      Leonard A. Costa, Jr., Pittsburgh, for appellant.
    Jon L. Friedman, Pittsburgh, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SPAETH, Judge:

This is an appeal from an order opening a default judgment, entered for failure to file a responsive pleading. The lower court found this failure excusable. We disagree, and therefore reverse.

On November 21, 1978, appellants instituted an action in assumpsit against appellee to recover the balance alleged to be due for roofing and contracting work performed on appellee’s home. On January 15, 1979, appellants took a default judgment against appellee because she had failed to answer or otherwise respond to the complaint. On January 23, 1979, appellee filed a Petition for Rule to Show Cause Why the Judgment Should Not Be Opened and Defendant Let Into a Defense. On February 5, appellants filed an answer to the petition. After depositions, the lower court, on April 28, filed an order opening the judgment.

An order opening a default judgment is an exercise of the court’s equity powers, and it will not be disturbed on appeal unless it represents an abuse of discretion. Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (1980). A petition asking the court to open a default judgment in an assumpsit action should not be granted unless (1) the petition was promptly filed; (2) the petitioner’s failure to respond was excusable; and (3) the petitioner has a meritorious defense. Carson Pirie Scott & Co. v. Phillips, 290 Pa.Superior Ct. 353, 434 A.2d 790 (1981); American Vending Co. v. Brewington, 289 Pa.Superior Ct. 25, 432 A.2d 1032 (1981); Horan v. R. S. Cook & Associates, Inc., 287 Pa.Superior Ct. 265, 430 A.2d 278 (1981); Cruse v. Woods, 279 Pa.Superior Ct. 242, 420 A.2d 1123 (1980). On this appeal, appellant claims that appellee did not meet the second of these requirements. We agree.

In her petition to open, appellee said that “because of her inexperience with legal matters and because of her illness, she did not notice the direction appearing at the bottom of the Complaint ‘Notice of Intention to Appear.’ ” Petition, para. 5. The direction thus referred to as appearing at the bottom of the complaint read:

NOTICE: You are hereby notified to return “NOTICE OF INTENTION TO APPEAR” within twenty (20) days from service hereof or a default judgment or an award may be entered against you.

Attached to the complaint, on the top, were copies of two forms, one entitled “Notice of Hearing,” and the other entitled “Notice of Intention To Appear.” The “Notice of Hearing” form read:

TO THE DEFENDANT: Case No. 9399 1978
A Lawsuit has been entered against you. Attached is a copy of the suit papers. You are requested to appear for a hearing on this claim on Feb. 6, 1979 at 9 AM o’clock, in Room 523, Court House, Pittsburgh, Pennsylvania. IF YOU INTEND TO APPEAR at the hearing and defend against this claim, YOU MUST complete and detach two of the copies of the “Notice of Intention To Appear” at the top of this page. One completed copy of the “Notice of Intention To Appear” must be filed or mailed by Certified or Registered Mail to the Prothonotary’s Office, Room 504 Courthouse, Pittsburgh, Pa. 15219 and the other completed copy must be mailed to:
Leonard A. Costa, Jr., Esquire
826 Frick Building
Pittsburgh, Pennsylvania 15219,
within 20 days from the date that you receive these papers.
IF YOU DO NOT thus file or mail the “Notice of Intention To Appear,” OR IF YOU properly file or mail it but DO NOT APPEAR at the above time and place for the hearing, A JUDGMENT OR AN AWARD FOR THE AMOUNT OF THE CLAIM MAY BE ENTERED AGAINST YOU.

The “Notice of Intention To Appear” form was addressed “To The Plaintiff or The Plaintiff’s Attorney,” and was to be signed by “Defendant or Defendant’s Attorney.” It stated:

I intend to appear at the hearing scheduled for the above date and defend against the claim made against me. I do not owe this claim for the following reasons: [there then followed a lined spaced to be filled in].

When asked whether she had read these forms, appellee replied:

All I saw was February 6th [the hearing date]. Since I felt bad, I figured that’s a long way off. I’m going to put this aside until I feel better. I didn’t read the rest of the pages.

Deposition 3/27/79, N. T. 7.

Included among “the rest of the pages” was the complaint itself and a “Notice of Suit.” Immediately below the caption of the complaint was printed the following “Notice to Defend.”

NOTICE TO DEFEND

You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any claim or relief requested by the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
LAWYER REFERRAL SERVICE—The Allegheny County Bar Association—920 City-County Building, Pittsburgh, Pennsylvania 15219—Telephone 412-261-0518.

When asked about these papers, appellee replied:

Q: When you received these papers from the sheriff, that would be the papers that were described as Deposition Exhibit 1—did you read anything other than the first sheet?
A: No.
Q: Were they attached by a staple in the same order that they are in?
A: I believe so.
Q: I would like to call your attention to the second page, the language under the heading “Notice to Defend.” Had you looked at that at all?
A: No.
Q: You hadn’t looked at that?
A: No.
Q: Had you read the Complaint?
A: No.
Q: Can you tell me whether or not you read the third sheet of paper entitled “Notice of Suit?”
A: No.
Q: So, the only thing you looked at was the first page?
A: And the date on the first page. I didn’t read the first page. I just saw the date and I set it aside.

Deposition 3/27/79, N. T. 37-38.

In its order opening judgment, the lower court stated that it was relying on its opinion in Sharon Hill Contracting Co. v. Recreation Equipment Unlimited, No. 78-4508, Common Pleas Court of Allegheny County. In its subsequent opinion, the court expanded on this statement:

The mistake which defendant made in this case frequently occurs. Within the past two years, numerous cases have come before this member of the Court in which defendants have failed to file a notice of intention to appear because they believed that they could defend by merely appearing on the hearing date listed on the Notice of Hearing. In such cases, it has been the practice of this member of the Court to open the default judgment upon the prompt filing of a proper petition to open unless it appeared that the defendant had intentionally ignored the requirement that a notice of intention to appear be filed in order to present a defense.
Slip op. at 2-3.

This practice, however, was recently disapproved when we reversed Sharon Hill Contracting Co. v. Recreation Equipment Unlimited, 284 Pa.Superior Ct. 118, 425 A.2d 447 (1981). The excuse offered in Sharon Hill was almost identical to that offered here, and concerned the same forms used by the Common Pleas Court of Allegheny County. Although the forms clearly stated that notice must be filed within twenty days, the appellee in Sharon Hill “stopped reading at the end of the third sentence, which gave the date, time and place for the hearing.” Id., 284 Pa.Super. at 123, 425 A.2d at 450. In reversing the lower court’s opening the default judgment, we said that the business background and education of the appellee made it “unreasonable” for him “to have failed to see three clear, prominently displayed notices in close proximity to the material which he testified he did see.” Id. 450.

The same may be said here. Appellee is in her early sixties. Although she is not a businessman, she worked for thirty years at Penn Central in “different jobs, statistical, timekeeping, billing, ledger.” Deposition 3/27/79, N. T. 35. She had been a lead clerk with the company and was a clerk when she retired. Id. She owns and manages rental property adjacent to her home. Id. 33-34. She is a high school graduate and reads English. Id. 34. Considering appellee’s age and business experience, and the clarity of the forms, we find no reasonable excuse for her mistaken belief that she did not have to take any action until the hearing date. She only needed to read the papers served on her. Instead, she “just saw the date [on the first page]” and “set it aside,” without either reading the rest of the first page or even looking at the complaint. While some mistakes will be excused, see Shainline v. Alberti Builders, Inc., 266 Pa.Superior Ct. 129, 403 A.2d 577, 581 (1979) (citing examples), mere carelessness will not be, Tronzo v. Equitable Gas Co., 269 Pa.Superior Ct. 392, 410 A.2d 313 (1979) (mistake regarding joinder of co-defendant mere carelessness).

Although it was not discussed by the lower court, appellee’s second excuse for her failure to respond to the complaint—that she was ill—is also without merit. Appellee had been treated for anxiety and hypertension since 1973. Brief for Appellee at 5. Her doctor, Lamont Shuttleworth, had prescribed rest and Librium, a mild tranquilizer, for these ailments. Id. Her retirement was caused by a back condition. Id. 6. Although we may accept appellee’s statement that she “is hardly the picture of perfect mental and physical health,” id., there is no evidence in the record to show that her maladies prevented her from reading the papers served on her. To the contrary, appellee’s doctor testified that appellee had only a “very mild hypertensive situation,” and that the Librium he had prescribed would not affect her ability to read, write, or understand the papers. Deposition 10/31/79, N. T. 5-6. He also said that in his opinion, appellee’s anxiety and nervous condition would cause her to read the complaint “very thoroughly.” Id. 21-22. In view of this testimony, we are unable to say that appellee’s illness was severe enough to excuse her failure to respond to the complaint. See Palley v. Lazarus, 235 Pa.Superior Ct. 433, 344 A.2d 536 (1975) (failure to respond excused where appellee in mental hospital at time complaint received and unable to consult effectively with attorney).

The order of the lower court is reversed and the judgment is reinstated.


author: HESTER, Judge:

text:
    439 A.2d 178
    Sallie B. SHUPP, Appellant, v. Mildred J. BROWN and Robert S. Brown.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Dec. 29, 1981.

      Lawrence J. Patterson, Lancaster, for appellant.
    William E. Haggerty, Lancaster, for appellees.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   HESTER, Judge:

This appeal concerns an action in equity which was originally brought by Sallie B. Shupp against her daughter Mildred J. Brown and her son-in-law Robert S. Brown to void a deed on the basis of alleged fraud. The deed in question conveyed, without consideration, certain real estate known as Shupp’s Grove, which consists of approximately 85 acres of farm land in Lancaster County and which is primarily used as an outdoor antique market.

Sallie B. Shupp acquired sole ownership of this property upon the death of her husband Jacob in 1975. The alleged conveyance to Mr. and Mrs. Brown took place on February 23,1976, when the deed was signed. However, the deed was not recorded until August 18, 1976.

In September óf 1976, appellee Robert S. Brown separated from his wife, appellee Mildred J. Brown. Subsequently, Sallie B. Shupp brought this action in equity to rescind the deed. After suit was filed, Mrs. Shupp died; and, in her place, Mildred J. Brown, was substituted in her capacity as Executrix of the Last Will and Testament of Sallie B. Shupp.

The complaint alleges that Sallie B. Shupp signed the deed on February 23, 1976, on the basis of the misrepresentation to the effect that the deed was actually a lease and management contract concerning the operation of the outdoor antique market. The complaint further alleged that the defendants were in a confidential relationship with Mrs. Shupp.

Mildred J. Brown, in her capacity as original defendant, filed an answer admitting that the deed was a result of fraud committed on her mother.

Defendant Robert S. Brown, appellee herein, contends that Sallie B. Shupp voluntarily executed the deed on February 23,1976, with the express intention of giving the property to her daughter and son-in-law.

After a non-jury trial, the lower court concluded that no confidential relationship existed between Sallie B. Shupp and the defendants or either of them; that the appellant had failed to establish fraud, force, coercion or undue influence; and that the conveyance in question was valid. Mildred J. Brown, in her capacity as Executrix of the Estate of her deceased mother, filed this appeal.

We affirm.

We initially note that, “the trial judge, sitting in equity as a chancellor, is the ultimate fact-finder.” Balin v. Pleasure Time, Inc., 243 Pa.Super. 61, 68, 364 A.2d 449, 453 (1976). “The court en banc having affirmed the chancellor’s findings of fact, they must receive the weight of a jury verdict. Our scope of review is therefore to determine if such findings are supported by sufficient evidence and whether the court below committed an error of law.” Reifschneider v. Reif schneidcr, 413 Pa. 342, 344, 196 A.2d 324, 325 (1964); Fiumara v. Fiumara, 285 Pa.Super. 340, 427 A.2d 667, 670 (1981).

“[0]n appeal the question is not whether the appellate court would have reached the same conclusion, but whether the evidence is sufficient to support the chancellor’s conclusion.” Bokoch v. Noon, 420 Pa. 80, 85, 215 A.2d 899, 901 (1966); Baker v. Zingelman, 259 Pa.Super. 441, 393 A.2d 908, 910 (1978).

The crucial question, which is properly before us on appeal, is whether, on February 23, 1976, there existed a confidential relationship between Sallie Shupp and Mr. and Mrs. Brown. In the instant case, it is undisputed that the appellee, Robert S. Brown, established a prima facie case of a gift in that the deed of February 23,1976, was executed by the donor and delivered to the donees and subsequently recorded.

“When the donee establishes a prima facie case of a gift a rebuttable presumption arises that the gift is valid and the burden is then on the contestant to rebut the presumption by clear, precise and convincing evidence.” In re Estate of Clark, 467 Pa. 628, 634, 359 A.2d 777, 781 (1976); Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); Fiumara, supra, 285 Pa.Super. 340, 427 A.2d at 671.

However, in Young v. Kaye, 443 Pa. 335, 342, 279 A.2d 759, 763 (1971), our Supreme Court stated:

“When the relationship between persons is one of trust and confidence, the party in whom the trust and confidence are reposed must act with scrupulous, fairness and good faith in his dealings with the other and refrain from using his position to the other’s detriment and his own advantage. [Citations omitted] . .. This well settled doctrine, founded on strong considerations of public policy, renders inapplicable the general rule requiring an affirmative showing of fraud.”

Accordingly, “once a fiduciary or confidential relationship is shown to exist, the burden is shifted to the person who is in such relationship, ... to prove absence of fraud and that the transaction was fair and equitable” Ruggieri v. West Forum Corporation, 444 Pa. 175, 180, 282 A.2d 304, 307 (1971); Clark, supra; Thomas v. Seaman, 451 Pa. 347, 304 A.2d 134 (1973); Fiumara, supra.

Applying these legal principles to the instant case, the appellant would have the burden of proving the existence of fraud, duress, or undue influence committed by Mr. and Mrs. Brown by clear, precise and convincing evidence, unless the appellant initially established that there existed a confidential relationship between Sallie B. Shupp and Mr. and Mrs. Brown. If a confidential relationship is shown to exist, Mr. and Mrs. Brown would have the burden of proving the absence of fraud by clear, precise and convincing evidence.

“It is impossible to define precisely what constitutes a confidential relation.” Young, supra; Fiumara, supra. As recently stated by this Court:

“We will deem such a relationship to exist whenever we find that ‘one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side, or weakness, dependence, or justifiable trust, on the other.’ In re Estate of Clark, 467 Pa. at 635, 359 A.2d at 781, quoting Truver v. Kennedy, 425 Pa. 294, 229 A.2d 468 (1967).” Fiumara, supra, 427 A.2d at 672.

In the instant case, the determination of the issue, whether a confidential relationship existed between Mrs. Shupp and Mr. and Mrs. Brown, would ultimately turn on the credibility of the witnesses who testified before the lower court. The appellant presented the testimony of seven witnesses, including two attorneys who had previously represented Mrs. Shupp prior to her death. The appellee presented the testimony of the attorney who prepared the deed, Mrs. Shupp’s minister, the son of Mr. and Mrs. Brown and the son’s girlfriend. The testimony of these various witnesses is collectively replete with remarkable discrepancies, disagreements and inconsistencies concerning the intent of Sallie B. Shupp and her relationship with Mr. and Mrs. Brown. After a full review of the record, we must, on appeal, defer to the chancellor’s assessment of the credibility of the witnesses and determine “whether the findings of fact of the chancellor, approved by the Court en banc, are based upon legally competent and sufficient evidence.” Clark, supra; Fiumara, supra.

The relevant findings of the chancellor are as follows: “. . . (2) Plaintiff was born July 31, 1895, and on the date of the conveyance (February 23, 1976) was 80 years, 6 months of age. . . .(7) On February 23, 1976, Sallie B. Shupp suffered from poor eyesight. (8) On February 23, 1976, Sallie B. Shupp was alert, agile, coherent, rational and mentally competent. (9) At the request of defendant, Mildred J. Brown, Anthony Kilkuskie, a lawyer, prepared the two deeds of conveyance in question. (10) On February 23, 1976, Kilkuskie went to the Browns residence where Sallie B. Shupp was then living, explaining the proposed conveyance and effect thereof to Sallie B. Shupp whereupon the said Sallie B. Shupp understanding the effect thereof executed the deeds without reading them. Defendant Robert S. Brown was not present at the time the deeds were executed but defendant Mildred J. Brown was present. (11) Defendant Robert S. Brown did not assist Sallie B. Shupp in signing her name . .. (14) Sometime following the execution of the deed in question, defendant Robert S. Brown and defendant Mildred J. Brown separated .... (16) Defendant Mildred S. Brown is the sole beneficiary to the Will of Sallie B. Shupp, dated November 3, 1977. (17) Sallie B. Shupp did not execute the deeds in question believing them to be a lease or management agreement. (18) Sallie B. Shupp did not execute the deeds pursuant to any fraudulent representation made by either defendant. (19) Defendant Robert S. Brown did not exert any duress on his wife, Mildred J. Brown, or on Sallie B. Shupp to compel the execution of the deeds. (20) The deeds were executed by Sallie B. Shupp primarily to facilitate the management of the Shupp Grove Enterprise. (21) Sallie B. Shupp’s bringing suit to rescind the conveyance was inspired by the separation of her daughter and son-in-law and by Sallie’s and Mildred’s intention to divest Robert S. Brown of his lh interest in the real estate.”

We hold that these findings of fact are based upon legally competent and sufficient evidence.

The mere fact that Mildred Brown was the daughter of Sallie Shupp and that Robert Brown was the son-in-law of Sallie Shupp does not, without more, place them in a relationship of confidentiality. In Re Scott, 455 Pa. 429, 316 A.2d 883, 885-6 (1974); Leedom v. Palmer, 274 Pa. 22, 117 A. 410 (1922). The reasoning underlying the Scott decision is that, in many cases, an elderly person may make a gift to a child or relative out of natural love and affection and not on the basis of any overmastering influence. In the instant case, it is clear that Sallie Shupp would have naturally desired to give her property to her only child, Mildred Brown. Robert and Mildred took care of Sallie after the death of her husband and also managed the outdoor antique market. Therefore, there is sufficient evidence to support the lower court’s finding that Sallie Shupp voluntarily and knowingly gave the property to her daughter and son-in-law.

Concerning Sallie’s poor eyesight, it was the appellant’s contention that, on February 23, 1976, Sallie B. Shupp was “legally blind”. However, no medical testimony was presented concerning this issue. The testimony was undisputed that Mrs. Shupp spent a great deal of time watching her daily television programs. There was also testimony to the effect that, although she could not read fine print, she could see some writing, such as the titles of magazine articles.

In Scott, supra, the court considered the physical disability of the donor, including poor eyesight and determined,

“physical limitations imposed on a party to a transaction by disease and advancing age do not by themselves create a confidential relationship with one another; such limitations support an inference of confidentially only insofar as they may bear on the parties’ capacity to understand the nature of the transactions in question.” [Citations omitted], 455 Pa. 429, 316 A.2d at 886.

In the instant case, although Mrs. Shupp was advanced in years, the evidence is sufficient to support the lower court’s finding that on February 23, 1976, Mrs. Shupp was alert, agile, coherent, rational and mentally competent. Taking the appellant’s position at face value, if in fact Mrs. Shupp thought she was signing a lease or management agreement, rather than a deed, it would seem that Mrs. Shupp had the mental capacity to understand the rights, obligations, and other legal complexities involved with a business transaction of that nature.

Finally, Mr. Kilkuskie, the attorney who prepared the deed, testified that he personally went to the Browns’ home on February 23, 1976, and explained to Mrs. Shupp in great detail the effect of giving the property to Mr. and Mrs. Brown and the legal effect of the deed which she was about to execute. If this testimony is to be believed, it would clearly establish that Mrs. Shupp knowingly and voluntarily gave the property to Mr. and Mrs. Brown.

The appellant raises two additional questions concerning the reserved rulings on evidence by the lower court. The lower court heard the testimony of all of the witnesses presented by the appellant; and, as part of its adjudication, the lower court ruled that certain testimony, relating to statements allegedly made by Sallie B. Shupp, was inadmissible as hearsay and, with respect to Mildred J. Brown, in violation of Dead Man’s Act, 42 Pa. C.S.A. Section 5930 (formerly 28 P.S. Section 322). We do not reach the merits of appellant’s contentions since the lower court, sitting as it was without a jury, heard all of the the evidence presented and this testimony obviously did not affect its ultimate findings and conclusions.

With respect to the exclusion of Mrs. Brown’s testimony on the basis of the Dead Man’s Act, the lower court specifically stated “the objection is really moot since our findings and conclusions would be the same even if her testimony were admitted and evaluated.” With respect to the testimony which was excluded as hearsay, the lower court did consider other testimony presented by the appellant, without objection, relating to statements made by Mrs. Shupp prior to her death, including the testimony of two attorneys. Therefore, the lower court ultimately decided the instant case on the basis of the credibility of the witnesses who testified for the respective parties, and we find no abuse of discretion or reversible error.

Finally, the appellant contends that the lower court abused its discretion in interpreting the statement of Mrs. Shupp to her daughter, “you still have the land”, as being evidence that Mrs. Shupp was aware that she had signed a deed rather than a management agreement. The appellant contends that the lower court took this statement out of context and that the statement should have been interpreted to the effect Mrs. Shupp thought that she still owned the property and that some day Mildred would get it. For the reasons stated above, we find that any error by the lower court is harmless. The testimony is unclear as to what exactly Mrs. Shupp did mean. The statement could be interpreted in either fashion, and we find that the lower court did not abuse its discretion.

Final decree affirmed.

      . It is obvious that the lower court did consider the testimony of Mildred J. Brown, even though the lower court ruled that she was incompetent to testify because of the Dead Man’s Act.