author: BROSKY, Judge:

text:
    473 A.2d 155
    William MATSKO v. HARLEY DAVIDSON MOTOR COMPANY, INC., Appellant, v. T.J. COSTELLA, Jr., and Uniontown Harley Davidson Company. William MATSKO v. HARLEY DAVIDSON MOTOR COMPANY, INC. v. T.J. COSTELLA, Jr., and Uniontown Harley Davidson Company. Appeal of UNIONTOWN HARLEY DAVIDSON COMPANY.
    Superior Court of Pennsylvania.
    Argued March 29, 1983.
    Filed Feb. 24, 1984.

      Herbert N. Rosenberg, Pittsburgh, for Harley Davidson, appellant (at No. 18) and appellee (at No. 67).
    John Edward Wall, Pittsburgh, for Uniontown Harley, appellant (at No. 67) and appellee (at No. 18).
    Sanford S. Finder, Washington, for Matsko, appellee.
    Robert N. Clarke, Washington, for Costella, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal is from judgment on the verdict in a civil case concerning a motorcycle accident. Plaintiff/appellee was the owner/rider of the vehicle and appellants are its manufacturer and seller. Appellants raise, collectively, 14 different issues for our review. Seven of these are addressed substantively in the following opinion and in seven we rely upon the opinion of the court below. On all issues we hold in appellee’s favor. Judgment is, accordingly, affirmed.

Recall Notice

Appellants contend that the trial court erred in admitting into evidence a post-accident recall notice of the motorcycle involved in the accident. It is argued that the “subsequent repair” rule forbids the admission of this evidence. Looking to the rationale for that rule, we find it inapplicable to a products liability case.

The principal reasons for excluding evidence of subsequent repair in a negligence case is that it is both irrelevant and prejudicial.

The negligence of the employer, which renders him responsible for the accident, depends upon what he did and knew before the accident, and must be established by facts and circumstances which preceded it, and not by acts done by him after the occurrence.

Sappenfield v. Main St., etc. R.R. Co., 91 Cal. 48, 27 P. 590 at 593 (1891).

A more recent case restates the same rationale.
The reason for applying this rule of evidence to that kind of case is clear. Since at the heart of such an action is either affirmative conduct in creating a dangerous condition or a failure to perceive a foreseeable risk and take reasonable steps to avert its consequences, proof that goes to hindsight rather than foresight most often is entirely irrelevant and, at best, of low probative value.

Caprara v. Chrysler Corp., 52 N.Y.2d 114, 436 N.Y.S.2d 251 at 255, 417 N.E.2d 545 at 549 (1981.)

Other courts have held, and we agree, that this rationale for excluding the evidence no longer applies in products liability cases where we “shift the emphasis from the defendant manufacturer’s conduct to the character of the product.” Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 281 N.E.2d 749 at 753 (1972). In a products liability case our focus is on whether or not the product was in fact defective and not, as in a negligence case, on what the manufacturer knew or should have known about the defects in the product. Consequently, “At the very least, the balance that, in the traditional negligence cause, was weighted to avoid the prejudice rather than to find the relevancy is tipped the other way in a strict liability suit.” Caprara v. Chrysler Corp., supra, 436 N.Y.S.2d at 257, 417 N.E.2d at 551.

The other justification for the subsequent repair rule is a public policy one. “Manufacturers should not be inhibited in, or prejudiced by, a good faith effort to protect the public safety and comply with their statutory duty.” Vockie v. General Motors Corp., Chevrolet Div., 66 F.R.D. 57 at 61 (E.D.Pa., 1975). (Vockie involved the admissibility of a recall letter and the statutory duty referred to was the Federal law mandating the issuance of recall notices under certain circumstances.) We find that this second rationale for the rule is also not applicable to a products liability context. The federal and state courts of several jurisdictions have considered this question and, rather than reinvent the wheel, we will draw upon their analyses.

One of the earliest in this line of cases was out of the California Supreme Court—Ault v. International Harvester Co., 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148 (1974). Though Ault dealt with subsequent remedial measures in general, and not with the particular subdivision of that category which concerns us here — a recall notice — its reasoning is well worth our attention.

While the provisions of section 1151 may fulfill this anti-deterrent function in the typical negligence action, the provision plays no comparable role in the products liability field. Historically, the common law rule codified in section 1151 was developed with reference to the usual negligence action, in which a pedestrian fell into a hole in a sidewalk (see e.g., City of Miami Beach v. Wolfe (Fla.1955) 83 So.2d 774) or a plaintiff was injured on unstable stairs (see e.g., Hadges v. New York Rapid Transit Corporation (1940), 259 A.D. 154, 18 N.Y.S.2d 304); in such circumstances, it may be realistic to assume that a landowner or potential defendant might be deterred from making repairs if such repairs could be used against him in determining liability for the initial accident.
When the context is transformed from a typical negligence setting to the modern products liability field, however, the “public policy” assumptions justifying this evidentiary rule are no longer valid. The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement. In the products liability area, the exclusionary rule of section 1151 does not affect the primary conduct of the mass producer of goods, but serves merely as a shield against potential liability. In short, the purpose of section 1151 is not applicable to a strict liability case and hence its exclusionary rule should not be gratuitously extended to that field.

Ault v. International Harvester Co., supra, 117 Cal.Rptr. at 815-6, 528 P.2d at 1151-2.

An opinion from the Eighth Circuit restates this view and goes on to give another reason specific to the recall context.

We believe that this reasoning is equally applicable here. Just as it is not reasonable to assume that manufacturers will forego improvements in products in order to avoid admission of the evidence of the improvements against them, it is not reasonable to assume that the manufacturers will risk wholesale violation of the National Traffic and Motor Vehicle Safety Act and liability for subsequent injuries caused by defects known by them to exist in order to avoid the possible use of recall evidence as an admission against them. We find no error in the admission of these documents.

Farner v. Paccar, supra, at 527.

Also referring to the statutory nature of recall notices is a case from New York.

As an additional answer to General Motors’ public policy argument (that the admission of such recall letters would discourage manufacturers from announcing a possible defect), it is merely necessary to point out that such announcement was not a voluntary act, but one mandated by Federal statute.

Barry v. Manglass, 55 A.D.2d 1, 389 N.Y.S.2d 870 at 877 (S.Ct., 1976).

When the high court of that state spoke on this issue it referred to more factors.

Beyond that, the very economic realities that shaped these legal changes — among others, the growing market share of the mass manufacturer, the well-nigh universality of insurance, the escalation of governmental regulation — undermine any assumption that it is necessary to pay the price of sheltering defendants in strict products liability litigation from evidentiary use of their product changes in order to persuade them to make improvements to which self-interest must propel them in any event...

Caprara v. Chrysler Corp., supra, 436 N.Y.S.2d at 256, 417 N.E.2d at 550.

One writer also felt that “the liberalized scope of punitive damages awards” would also act to spur manufacturers to disclose defects notwithstanding the admissibility of such disclosures. John M. Kobayashi, Trial Law Guide (1981) at 321.

A law review article gives yet more reasons:

Moreover, the policy basis for excluding such evidence in negligence cases does not exist in strict liability cases where liability is imposed even though “the seller has exercised all possible care in the preparation and sale of his product.” In today’s world of competitive, consumer-oriented manufacturers, it is unreasonable to suggest that admission of such evidence would discourage manufacturers from taking safety precautions and making post-accident improvements. In fact, in addition to humanitarian reasons, there are at least two compelling practical reasons why manufacturers are likely to take immediate safety precautions upon learning of existing defects. First, manufacturers realize that liability insurance companies will not continue to insure the further production of known defective products; as a condition of continuing the existing insurance coverage the manufacturer would be required by the liability insurance company to correct these defects. Second, manufacturers are well aware of the marketing impact which adverse publicity can have on future sales; and future sales will definitely take high priority over the payment by a manufacturer’s insurance carrier of a damage suit judgment.

Davis, Evidence of Post-Accident Failures, Modifications and Design Changes in Products Liability Litigation, 6 St. Mary’s L.J. 792 at 798-9 (1975) (footnote omitted).

One law review article went so far as to suggest that the admissibility of such evidence would encourage, rather than discourage remedial action.

The assumption that the admission of evidence of subsequent repairs discourages defendants from making required repairs may be erroneous. Manufacturers and distributors of mass-produced products may not be so callous to the safety of the consumer as the general exclusionary rule presumes. Furthermore, to the extent that admission of such evidence results in recovery by injured plaintiffs, it can be argued that evidence of subsequent repairs encourages future remedial action.

Note, Products Liability and Evidence of Subsequent Repairs, 1972 Duke L.J. 837 at 848 (fns. omitted).

We find each of these several quotations persuasive. Cumulatively they constitute an overwhelming set of arguments in favor of the admissibility of the recall notice. We conclude, along with the Duke Law Journal author that:

Relevant evidence should not be excluded from a products liability case by an obsolete evidentiary rule when modern legal theories, accompanied by economic and political pressures, will achieve the desired policy goals.

Duke L.J., supra, at 850.

Back Injury

The next issue involves a back injury which appellee alleged was the result of the motorcycle accident. Both appellants contend that the withdrawal of a juror and cautionary instructions should have followed argument and testimony on appellee’s back injury and that their absence mandates a new trial.

They base this on the following rule of law. “Pennsylvania case law is clear that in a personal injury case when there is no obvious causal relationship between the accident and the injury, unequivocal medical testimony is necessary to establish the causal connection.” Albert v. Alter, 252 Pa.Super. 203 at 224, 381 A.2d 459 at 470 (1977).

The back injury was introduced by appellee into the case at three points: in appellee’s opening argument; in appellee’s testimony; and in appellee’s closing argument. Appellant’s objected in a timely fashion at the opening argument. The issue is, therefore, preserved for our review in that instance. However, appellants failed to object at the time of appellee’s testimony or at the closing argument. As a consequence, this issue was not properly preserved in those contexts. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Of course, once an objection has been properly made, counsel is not obliged to repeatedly voice objections in a tendentious manner. However, counsel is required to repeat an objection when the grounds for it recur in separate phases of the trial. This is required because the validity of an objection may change during the course of a trial.

This is precisely what occurred in the instant trial. While the trial court did not sustain the objection made to the opening argument — prefering to wait and see .what evidence appellee could introduce to establish an “obvious causal relationship” — in its charge to the jury the trial court did specifically instruct them to disregard the back injury claim.

This procedural history raises a rather intricate question. Assuming, arguendo, that the trial court erred in not sustaining appellants’ objection to the opening argument, did the charge cure that error so that appellants have no substantive issue on appeal?

In answering this question it is first necessary to note what type of error we are not treating. Some objections are to errors which are so “inflammable and prejudicial” that a cautionary instruction will not suffice. Vereb v. Markowitz, 379 Pa. 344 at 352, 108 A.2d 774 at 778 (1954). For this category of error a curative charge to disregard or even an immediate cautionary instruction are insufficient. Here we are dealing with an error which, if it occurred at all, is undoubtedly not of an inflammable or dramatically prejudicial nature.

In its argument appellant Harley-Davidson includes the following quotation from a case of this Court.

The prejudicial comments once implanted in the minds of the jurors could be removed only by immediate cautionary instructions to the jury.

Millen v. Miller, 224 Pa.Super. 569 at 574, 308 A.2d 115 at 118 (1973). This isolated sentence would appear to answer the question posed above in the negative. However, a careful reading of the entire passage in which the quoted sentence appears leads to a different conclusion.

Appellee argues that although the trial court did not so caution the jury, the error if there was one was cured by a comprehensive and adequate charge to the jury both on its duty to apply a reasonable man standard and as to its function in testing the credibility of witnesses. We do not agree. Plaintiffs counsel objected to counsel’s closing argument immediately after the comments were made. The objections were specifically directed at the nature of the error. The prejudicial comments once implanted in the minds of the jurors could be removed only by immediate cautionary instructions to the jury. We do not believe that a charge of the court, absent specific cautionary instructions regarding error committed during the course of the trial, can adequately call the jury’s attention to such error.

Id.

The law as we read it is as follows:

1. A general charge, correct in and of itself, but which does not include a specific cautionary reference to the prior error, will not serve to correct a trial court’s error in not issuing a cautionary instruction at the time of the objection.

2. A charge which includes a specific instruction to disregard the matter objected to can cure the error committed in not issuing a cautionary instruction at the time of the objection.

Since the charge below did include a specific instruction to disregard the back injury claim, this case falls into the second of these two categories. The charge did cure the error, (if, indeed, there was any), in not issuing a cautionary instruction at the time of the objection. There is, thus, no need for us to determine if there was error committed by the court below in not issuing such a cautionary instruction after the opening argument.

Rebuttal Testimony

Appellants claim that the trial court erred in not permitting rebuttal testimony by an expert witness, Mr. Minnert. Appellee’s expert had testified that a prior accident on the same motorcycle was not causally related to the accident in question. Appellants wished to have their expert rebut this with testimony about undetectable damage. The trial court and the en banc court held that this was inadmissible as the proffered rebuttal testimony had not been revealed in discovery, pursuant to Pa.R.Civ.P. 4003.-5(c)

“The admission of rebuttal evidence is normally within the discretion of the trial judge. Flowers v. Green, 420 Pa. 481, 218 A.2d 219 (1966).” Mishkin v. Development Authority of City of Lancaster, 6 Pa.Cmwlth. 97 at 101, 293 A.2d 135 at 137 (1972). Even if the trial court erred in this matter — and we do not hold that it did — the excluded testimony was not so critical as to warrant a new trial. “The grant or refusal of a new trial by the lower court will not be reversed by this Court in the absence of a clear abuse of discretion or an error of law which controlled the outcome of the case ...” Menyo v. Sphar, 409 Pa. 223 at 225, 186 A.2d 9 at 10 (1962).

Future Earning Capacity

Appellants claim the trial court erred in charging the jury on appellee’s loss of future earning capacity. When the underbrush of verbiage is cleared away, appellants can be seen to be challenging the lack of unequivocal expert testimony relating appellee’s injuries to a loss of earning capacity. But, while admissible, expert testimony is not required to show loss of earning capacity. Gary v. Mankamyer, 485 Pa. 525, 403 A.2d 87 (1979).

Judgment on the verdict is affirmed.

CAVANAUGH, J., notes his dissent.

      . With regard to this recall notice appellants also argue that a precautionary instruction was not given and that a foundation was not established showing that the defect which formed the basis of the recall notice was present in the vehicle involved in the accident. We find that the first issue was waived through failure to request it. As to the second issue, we find that a proper foundation was present.

      . The subsequent repair rule is Pennsylvania law. Baran v. Reading Iron Co., 202 Pa. 274, 51 A. 979 (1902).

      . See also Columbia & P.S.R. Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 321 (1892).

      . It appears that Vockie was a case brought in Federal court under diversity jurisdiction. However, the admissibility, vel non, of the recall notice was not treated as a substantive law issue, on which Pennsylvania law would govern. Rather, it was analyzed as a question of Federal procedure, to be governed by Federal evidentiary rules. As such, Vockie is not only not binding upon us, it is not even an interpretation of the law of this Commonwealth. Appellants’ reliance on this case is misplaced.

      . 15 U.S.C.A. §§ 1398(a), 1402(a).

       Under 15 U.S.C. § 1398(a), violators of the National Traffic and Motor Vehicle Safety Act are subject to a civil penalty of up to $1,000 for each violation with respect to each motor vehicle in issue, not to exceed $800,000, for any related series of violations.

      . “We decline to follow the Vockie case. In Robbins v. Farmers Union Grain Terminal Assn., 552 F.2d 788 (8th Cir.1977) this court held that the exclusionary rule governing subsequent remedial measures is inapplicable in a strict liability case because it serves no deterrent function. The reason for this decision is expressed by the South Dakota Supreme Court:
      A products liability case looks to a defect in the product rather than any culpable act by the manufacturer. In an age of mass production it is not reasonable to assume that manufacturers would forego improvements in a product and subject themselves to mass liability for a defect just because evidence of an improvement is admissible in a pre-improvement liability case. The pure economics of the situation dictate otherwise. Shaffer v. Honeywell, Inc., supra [249 N.W.2d 251], at 257 n. 7 quoted in Robbins v. Farmers Union Grain Terminal Assn., supra at 793. . . ."

        Farner v. Paccar, 562 F.2d 518 at 527 (8th Cir., 1977).

      . The other requirements for the preservation of issues for appellate review were also met.

      . With what frequency an objection must be made during the same phase of a trial (as, for example, with different witnesses) is not before us and our remarks above should not be read to address that issue.

      . For this type of error the withdrawal of a juror, or possibly even the total cessation of the trial are required.

      . We have already decided above that this matter could not have constituted an error of the dimensions which would mandate the withdrawal of a juror.

      . To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.
      Pa.R.Civ.P. 4003.5(c).

      . This is so because there was sufficient testimony by appellee and one of his co-workers to support the charge.

      . We find that the other issues were properly disposed of in appellee’s favor by the court below on well-established principles of law. Accordingly, we will not address them in this published opinion. Those issues are: excessive verdict; remarks made on the witness stand by appellant, appellant’s sister, an ambulance attendant and appellant’s expert witness; and appellant Uniontown Harley-Davidson’s claim for indemnity from appellant Harley-Davidson.


source: Caselaw Access Project

author: WIEAND, Judge: McEWEN, Judge,

license: Public Domain

text:
    473 A.2d 161
    COMMONWEALTH of Pennsylvania v. Edward E. STEWART, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1983.
    Filed Feb. 24, 1984.
    Reargument Denied April 18, 1984.
    Petition for Allowance of Appeal Denied Aug. 22, 1984.

      Peter T. Campana, Williamsport, for appellant.
    Ellen Laura Cohen, Assistant District Attorney, Williams-port, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

Edward E. Stewart was arrested on the night of August 16, 1980 and charged with theft by receiving stolen property in connection with the taking of motor oil and tools from an auto shop earlier that evening. Following his arrest, police obtained a search warrant for his vehicle and conducted a search for the motor oil and mechanic’s tools. During the search, which produced a case of motor oil and a box of tools, police also found luggage which contained drug paraphernalia and containers in which there appeared to be controlled substances. Police did not immediately seize the apparent drugs and drug paraphernalia, but on the following day a second search warrant was obtained, and the items were taken into custody.

Stewart was tried and acquitted of theft by receiving stolen property on January 22, 1981. On that day, there still had been filed no complaint against him for possession of controlled substances. The substances seized from his vehicle on August 17, 1980 had been sent to the State Police Crime Lab for analysis on September 24, 1980, and an affirmative finding was reported to the Williamsport police on November 14, 1980. A criminal complaint alleging possession of controlled substances was not filed until May 7, 1981. Stewart then moved to dismiss on grounds that the charge for possession of controlled substances had arisen from the same episode as the theft charge, and that prosecution, therefore, was barred by principles of double jeopardy and also by 18 Pa.C.S. § 110. The trial court denied the motion to dismiss, and Stewart appealed. We affirm.

Appellant’s prosecution for possession of controlled substances is not barred by principles of double jeopardy. “ ‘The double jeopardy clause breaks down into three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial.’ ” Commonwealth v. Grazier, 481 Pa. 622, 630, 393 A.2d 335, 339 (1978), quoting Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971) (emphasis omitted). Accord: Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980). Theft by receiving stolen property and possession of controlled substances clearly are not the same offense. The “same transaction” concept advanced by appellant has not been adopted by the Supreme Court of the United States. See: Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) (Brennan, J., concurring); Grubb v. Oklahoma, 409 U.S. 1017, 93 S.Ct. 450, 34 L.Ed.2d 309 (1972) (Brennan, J., dissenting); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (Brennan, Harlan, J.J., concurring). It was specifically rejected by this Court in Commonwealth v. Webster, 323 Pa.Super. 164, 470 A.2d 532 (1983).

The provisions of 18 Pa.C.S. § 110 require that all known charges based upon the same conduct or arising from the same criminal episode be consolidated for trial unless the court orders separate trials. Commonwealth v. Hude II, 500 Pa. 482, 490, 458 A.2d 177, 181 (1983); Commonwealth v. Webster, supra. This rule is “intended both to protect a person accused of crimes from governmental harrassment by forcing him to undergo successive trials for offenses stemming from the same event, and also, as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation.” Commonwealth v. Holmes, 480 Pa. 536, 541, 391 A.2d 1015, 1017 (1978), quoting Commonwealth v. Tarver, 467 Pa. 401, 408, 357 A.2d 539, 542 (1976).

The crimes of theft by receiving stolen property and unlawful possession of controlled substances clearly are not the same criminal act. The law defining each of these offenses requires proof of facts not required by the other. The principal issue, therefore, is whether, under the circumstances of this case, the two alleged offenses were part of the same criminal episode.

“[I]n defining what acts constitute a single criminal episode, not only is the temporal sequence of events important, but also the logical relationship between the acts must be considered.” Commonwealth v. Hude II, supra, 500 Pa. at 491, 458 A.2d at 181. There is no logical relationship between the crimes of theft by receiving stolen property and possession of a controlled substance. They are defined by separate statutes and are intended to prevent different evils. There is no similarity of issues involved in proving these distinct offenses. One is a crime of unauthorized possession; the other, although involving the receipt or retention or disposition of movable property, is a crime against property suggesting dishonesty or moral turpitude.

It is the lack of a logical relationship between the two offenses which distinguishes this fact pattern from that present in Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981). When the appellant in that case had been stopped and frisked, police found on his person a pistol and ten glassine packets of heroin. The offenses of carrying a firearm and possession of heroin were held to be part of the same episode because both crimes were possessory offenses which “consisted of the possession of heroin and a gun at precisely the same time.” Id., 493 Pa. at 28, 425 A.2d at 348. A charge of theft by receiving stolen property, however, is not merely a crime of possession. It is a crime of theft and can be supported by evidence that it was committed in any manner constituting theft under the Crimes Code. 18 Pa.C.S. § 3902.

The temporal relationship between the two offenses with which appellant was charged, moreover, is more theoretical than real. Theft by receiving stolen property, this Court has held, is a continuing offense. See: Commonwealth v. Kelly, 300 Pa.Super. 451, 455, 446 A.2d 941, 944 (1982); Commonwealth v. Farrar, 271 Pa.Super. 434, 441-442, 413 A.2d 1094, 1098 (1979). In theory, therefore, it may be said that because both offenses were continuing, they occupied the same time frame at the moment when police searched appellant’s automobile and found not only stolen property but controlled substances as well. In actuality, however, the temporal relationship between the two offenses is less than clear. The crime of theft by receiving stolen motor oil and mechanic’s tools had its genesis in an unlawful taking which occurred during the early evening of August 16, 1980. There is no basis in the evidence here presented for finding that appellant’s possession of controlled substances commenced at the time of the theft or at the time when appellant came into possession of the stolen property.

To summarize, there is no logical relationship between a crime of theft and that involving possession of controlled substances. Under the facts appearing in the instant case, moreover, the temporal relationship was marginal at best. We conclude, therefore, that the two offenses were not part of the same episode and were not rendered part of the same episode merely because evidence relevant to both was found during the same search. It follows that appellant’s prosecution for possession of controlled substances is not barred by his prior acquittal on a charge of theft by receiving stolen property.

Order affirmed.

McEWEN, J., filed a dissenting opinion.

McEWEN, Judge,

dissenting:

As persuasive as may be the expression of the majority view and as desirable as the result may, for the majority, seem to be, I am compelled, most respectfully, to dissent. The issue, in my view, is whether the Commonwealth may proceed to the piecemeal prosecution of two separate crimes even though both crimes sound in unlawful possession and were uncovered during a single search. I am of the view that the prosecution may not proceed in such a fashion but was required to prosecute appellant on both charges at the same time.

The rationale for the compulsory joinder rule, as announced by the Pennsylvania Supreme Court and codified in section 110, was described in Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), by the eminent Justice Robert N.C. Nix, Jr., as follows:

The compulsory joinder rule set forth in Campana I and II and the provisions of section 110 were designed to serve two distinct policy considerations: (1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation. See Commonwealth v. Stewart, supra, 493 Pa. [24] at 29, 425 A.2d [346] at 348 [1981]; Commonwealth v. Holmes, 480 Pa. 536, 541, 391 A.2d 1015, 1017 (1978); Commonwealth v. Tarver, supra, 467 Pa. [401] at 408, 357 A.2d [539] at 542 [1976]. “By requiring compulsory joinder of all charges arising from ... (the same criminal episode), a defendant need only once ‘run the gauntlet’ and confront the awesome resources of the state.”

Id. 500 Pa. at 489, 458 A.2d at 180 quoting Commonwealth v. Campana, (Campana I), 452 Pa. 233, 251, 304 A.2d 432, 440-441, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973).

The statute that is the focus of our attention in this appeal, section 110, provides:

§ 110 When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(B) the second offense was not consummated when the former trial began.
(2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.
(3) The former prosecution was improperly terminated, as improper termination is defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.

Since (1) the drug offenses were known to the appropriate authorities at the time of the commencement of the first trial, (2) the charges were within the jurisdiction of a single court and (3) the court did not order separate trials, section 110(l)(ii) will bar the second prosecution if it is determined that the violations charged in the first and second prosecutions were based on the “same criminal episode”.

It strikes me that the decision of the Pennsylvania Supreme Court in Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981), is binding upon this court and our consideration of whether the offenses herein arose from “the same criminal episode”. The police there stopped and frisked an accused and found a pistol on his person as well as ten glassine packets containing what later proved to be heroin lying near him on the street. A criminal complaint for carrying a firearm without a license was filed on the day of the arrest and approximately one month after the arrest appellant was charged with possession of heroin. The Commonwealth first brought appellant to trial on the firearms charge, and it was only after he pleaded guilty and was sentenced that the Commonwealth indicted appellant on the heroin charge. Our Supreme Court declared that section 110 was applicable and that “the two offenses with which appellant was charged were clearly part of the same 'episode’: appellant’s crimes consisted of the possession of heroin and a gun at precisely the same time, 9:20 p.m. on April 25, 1974.” Id., 493 Pa. at 28, 425 A.2d at 348.

While the Pennsylvania Supreme Court in Stewart examined the commission of two distinct violations of the Crimes Code, both violations shared an essential characteristic, namely, possession of a prohibited item, specifically, a controlled substance and an unlicensed firearm. Our Supreme Court then concluded that the “same criminal episode” requirement of section 110 had been met. The instant situation greatly resembles Stewart since the two distinct violations of the Crimes Code here charged also share an essential characteristic, namely, possession of a prohibited item, specifically, stolen goods and illegal drugs. As a result, application of the Stewart decision requires that we hold that the two distinct violations of the Crimes Code here charged were the “same criminal episode”.

The majority asserts the fact pattern in this case is to be distinguished from the pattern in that Stewart case but I fail to observe even a whisper of difference. Nor do I accept the contention that possession of stolen goods sounds in theft. If the prosecution did not see fit to charge appellant with the theft, surely this court is not free to include such a charge in the rationale it would assemble to permit the prosecution to evade its responsibility and duty to have joined these charges for trial.

It should also be noted that our Supreme Court in Commonwealth v. Muffley, 493 Pa. 32, 425 A.2d 350 (1981), expressed a similar view. The defendant there was arrested for possession of marijuana, and later charged with possession of LSD which had been discovered on the body of appellant when he was searched at the police station following his arrest on the marijuana charge. Although the Commonwealth did not argue that the two crimes were separate criminal episodes, our Supreme Court noted that such an argument, if raised, would not have been meritorious.

Justice Nix in Hude, supra, discussed the rationale for the interpretation that the Supreme Court had supplied to the term “same criminal episode” when he stated:

The interpretation of the term “single criminal episode” must not be approached from a hypertechnical and rigid perspective which defeats the purposes for which it was created. Cf. Commonwealth v. Jenkins, [500] Pa. [144], 454 A.2d 1004 (1982) (Davenport rule to be interpreted to “... accomplish the purposes sought to be achieved by the requirement of a prompt arraignment.”) Thus, where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of scarce judicial resources. In such cases, failure to consolidate will bar successive prosecutions.”

Id. 500 Pa. at 494, 458 A.2d at 183. Nor does such an interpretation of the term impose an unreasonable burden on the Commonwealth since the Commonwealth had alternate procedures available to avoid any adverse application of the rule: (1) the Commonwealth could have requested the court to grant separate trials, see 18 Pa.C.S.A. § 110(l)(ii); or (2) the Commonwealth could have requested an extension of time within which to try both cases on the ground that such an extension was needed in order to enable the Commonwealth to comply with its duty to consolidate the charges. See Commonwealth v. Stewart, supra 493 Pa. at 29, 425 A.2d at 349. The Commonwealth here failed to employ either of these alternate procedures and cannot now attempt to circumvent the mandate of section 110 by prosecuting appellant on charges that should have been brought at the same time as the charge of receiving stolen property.

I would, therefore, reverse.

      . 18 Pa.C.S. § 3925. Stewart admitted possession of the motor oil and tools, but at trial he denied that he had had knowledge of their theft or reason to believe they had probably been stolen.

      . 35 Pa.C.S. § 780-113(a)(16).

      . Denial of a pre-trial application seeking discharge on double jeopardy grounds is a "final” order and is immediately appealable. Commonwealth v. Hude II, 500 Pa. 482, 490 n. 13, 458 A.2d 177, 181 n. 13 (1983). See: Commonwealth v. Bolden, 472 Pa. 602, 609, 373 A.2d 90, 93 (1977); Commonwealth v. Beckman, 304 Pa.Super. 239, 241, 450 A.2d 660, 661 (1982).

      . The Commonwealth argued in Muffley that appellant waived any section 110 objection by failing to move for consolidation of the two informations.


author: McEWEN, Judge:

text:
    473 A.2d 167
    George KINLOCH, III, Appellant, v. Habib TONSEY, M.D.
    Superior Court of Pennsylvania.
    Argued June 21, 1982.
    Filed March 2, 1984.

      Lee A. Solomon, Philadelphia, for appellant.
    Thomas L. Delevie, Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   McEWEN, Judge:

This is an appeal from an order granting summary judgment in favor of appellee, Habib Tonsey, M.D., on the grounds that Dr. Tonsey was immune from suit under the provisions of Section 205 of the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 72. We affirm.

Appellant, George Kinloch, sustained an injury to his right leg while engaged in duties within the course and scope of his employment as a rigger for the Budd Company at the company plant located at 2450 West Hunting Park Avenue, Philadelphia. Appellant proceeded to the Budd Company medical dispensary, located on the premises of the plant, where he was treated by Dr. Habib Tonsey, the Medical Director of the Budd Company. Dr. Tonsey concluded that appellant had sustained a contusion of the right thigh, prescribed daily whirlpool baths, wrapped the area with an Ace bandage and restricted appellant’s activities to limited walking and standing. Appellant was directed to return to work and was examined and treated at the Budd Company medical dispensary over the course of the next two months. On February 12, 1978, appellant was admitted to Thomas Jefferson University Hospital by a private physician for quadriplastic repair of the ruptured rectus musculotendinous unit of his right leg.

Appellant subsequently filed a complaint in trespass against Dr. Tonsey seeking damages for personal injuries allegedly incurred when Dr. Tonsey negligently diagnosed and treated appellant’s injury. Dr. Tonsey filed an answer and raised, inter alia, by way of new matter, his immunity from suit under the applicable provisions of the Pennsylvania Workmen’s Compensation Act. Discovery was conducted and depositions and affidavits filed of record. Dr. Tonsey filed a motion for summary judgment on October 14, 1980, on the grounds that as a co-employee of appellant, he was immune from suit under the Workmen’s Compensation Act. The motion for summary judgment filed by Dr. Tonsey was granted on September 22, 1981, on the basis of Dr. Tonsey’s immunity under Section 205 of the Workmen’s Compensation Act. Appellant argues on appeal that the trial court erred in concluding that Dr. Tonsey was an employee rather than an independent contractor of the Budd Company because Dr. Tonsey (1) had complete and unfettered control over the manner in which he performed his duties; (2) maintained an office for the private practice of medicine not connected with the Budd Company; (8) worked for area hospitals on certain nights and weekends for which the hospitals paid him; and (4) earned a substantial portion, approximately one-third, of his income from sources other than the Budd Company.

Appellant argues that Dr. Tonsey’s substantial income from part-time employment at area hospitals and a private physician’s office, in light of the doctor’s complete control over the manner and method of his treatment of Budd employees, precludes a determination that Dr. Tonsey was a co-employee for purposes of immunity under Section 205. The trial court concluded, as a matter of law, that Dr. Tonsey was a co-employee of appellant based upon the following undisputed facts: (1) Dr. Tonsey worked from 8:00 a.m. to 4:00 p.m. five days per week; (2) the doctor was paid a monthly salary by the Budd Company as well as standard fringe benefits which included a Blue Cross/Blue Shield plan, dental and prescription eyeglass plan, vacation, life insurance and an investment plan; (3) the outside employment or “moonlighting” was conducted by the doctor only on nights and weekends and he was paid for his services directly by Dr. Lavofson and the respective hospitals.

In ascertaining whether a plant physician is “in the same employ” as the injured worker, no one factor “absolutely controls the outcome and each case must be determined on its facts.” Budzichowski v. The Bell Telephone Company of Pennsylvania, 503 Pa. 160, 164, 469 A.2d 111, 113 (1983). See also Babich v. Pavich, 270 Pa.Super. 140, 144, 411 A.2d 218, 220 (1980). “ ‘[T]he basic inquiry is whether such person is subject to the alleged employer’s control or right to control with respect to his physical conduct in the performance of the services for which he was engaged . . . .’ Green v. Independent Oil Company, 414 Pa. 477, 483, 201 A.2d 207, 210 (1964) (footnote omitted). An employer-employee relationship may be found even though ‘a particular occupation may involve such technical skill that the employer is wholly incapable of supervising the details of performance.’ Potash v. Bonaccurso, 179 Pa.Super. 582, 588, 117 A.2d 803, 806 (1955).” Budzichowski v. The Bell Telephone Company of Pennsylvania, supra, 503 Pa. at 165, 469 A.2d at 113, quoting Bavich v. Pavich, supra 270 Pa.Super. at 144, 411 A.2d at 220-221.

Section 205 clearly provides immunity for an employee for his negligent acts within the course and scope of his employment which injure a co-employee. The term “employee” for purposes of the Workmen’s Compensation Act includes

[a]ll natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer, and exclusive of persons to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired, or adapted for sale in the worker’s own home, or on other premises, not under the control or management of the employer. Every executive officer of a corporation elected or appointed in accordance with the charter and by-laws of the corporation, except elected officers of the Commonwealth or any of its political subdivisions, shall be an employe of the corporation except as hereinafter provided in sections 302(c), 305 and 321.

77 P.S. § 22 (footnote omitted).

There is no allegation or suggestion that Dr. Tonsey’s employment was “casual” or not within the regular course of the Budd Company’s business. Rather, appellant relies upon the fact that this court in Babich v. Pavich, supra, noted, that the fact that the physician in Babich was prohibited from engaging in any outside practice was a factor to be considered in determining whether he as an “employee”. The trial court in ruling upon appellee’s motion for summary judgment recognized that the plant physician in Babich v. Pavich, supra, was prohibited from engaging in any outside practice but held that this difference alone was insufficient to prevent application of the rationale of Babich to the instant case. We agree. In Babich, this Court found the plant physician to be a co-employee rather than an independent contractor based upon the following factors: “[The plant physician] worked for Bethlehem on a full-time basis; Bethlehem paid him a fixed salary and did not allow him to engage in private practice; his fringe benefits were the same as those received by Bethlehem’s supervisory employees; and Bethlehem controlled the hours and number of days that appellee worked.” Id., 270 Pa.Superior Ct. at 145, 411 A.2d at 221.

While the Superior Court in Babich noted, as a factor to be considered, the prohibition against outside employment, the plant physicians in Budzichowski v. The Bell Telephone Company of Pennsylvania, supra, were not prohibited from engaging in outside practice, although the record upon which the trial court granted summary judgment provided “no evidence that either [physician] engaged in any other medical practice.” Id., 503 Pa. at 166, 469 A.2d at 113. The Supreme Court found the absence of a prohibition against outside practice insufficient to preclude a finding that the physicians were co-employees of the appellant, especially in light of the fact that both physicians were subject to the control and direction of the company’s medical director.

We are persuaded that in the instant case Dr. Tonsey was properly found to be a co-employee, immune from suit under the Workmen’s Compensation Act, in spite of the fact that he was employed by a private physician and several hospitals on nights and weekends. Dr. Tonsey was employed by the Budd Company as its medical director, a position which required that he be present on the plant premises from 8 a.m. until 4 p.m. every weekday. He was compensated in the same manner as other full-time employees and worked similar hours. Dr. Tonsey did engage in the practice of medicine as a private physician on nights and weekends and received substantial income from such “moonlighting”. Dr. Tonsey’s outside employment, however, which was conducted only during periods and in locations not connected in any way with his employment as medical director of the Budd Company, was separate and distinct from his full-time responsibilities as Medical Director for the Budd Company, and was not in any way relevant to his treatment of appellant at the medical dispensary of the Budd Company. See and compare Apple v. Reichert, 443 Pa. 289, 278 A.2d 482 (1971). We decline to find, as urged by appellant, that such “moonlighting” in conjunction with the absence of any control by the Budd Company over the manner in which Dr. Tonsey treated employees provided a sufficient basis to conclude that appellee was an independent contractor. Rather, we are persuaded by the cogent analysis provided by our eminent colleague, Judge J. Sydney Hoffman:

“[Wjere we to accept appellant’s argument that the professional nature of appellee’s position precludes him from being ‘in the same employ’ as appellant [] because he must exercise independent professional judgment, then this same principle would extend to other full-time salaried professionals such as accountants, architects, attorneys and engineers. We refuse to construe section 205 in such a manner to reach a result clearly not intended by the legislature. The determination of whether plant physicians and others in similar circumstances exercising independent professional judgment should be liable for their negligence must be left to the legislature. See Apple v. Reichert, supra. We therefore conclude that appellee was ‘in the same employ’ as appellant’s decedent and thus immune from civil liability for negligence under section 205.”

Babich v. Pavich, supra, 270 Pa.Superior Ct. at 144, 411 A.2d at 221. See also Proctor v. Ford Motor Co., 36 Ohio St.2d 3, 302 N.E.2d 580 (1973); Bergen v. Miller, 104 N.J.Super. 350, 250 A.2d 49 (1969); Anno., Right to Maintain Malpractice Suit Against Insured Employees Attending Physician notwithstanding Employer’s Receipt of Workmen’s Compensation Award, 28 ALR3d 1066 (1969); Anno., Right to Maintain Direct Action Against Fellow Employee for Injury or Death Covered by Workmen’s Compensation, 21 ALR3d 845 (1968).

The order of the learned Judge Murray C. Goldman is hereby affirmed.

      . Judgment was entered against appellant, George Kinloch, III, on October 21, 1981.

      . The legislature added Section 205 to the Act of June 2, 1915, P.L. 736, by the Act of August 24, 1963, P.L. 1175, No. 496, Section 1, 77 P.S. § 72 (Supp. 1983-84). This Section provides:
      Liability of fellow employe
      If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

      . Appellant was injured on December 23, 1977, when a coil weighing approximately 1,000 pounds fell against his right leg. There is no dispute that the injury sustained by appellant is compensable under the Workmen's Compensation Act.

      . Appellant was seen by Dr. Tonsey as well as other plant physicians on these visits to the dispensary.

      . The instant appeal was argued on June 21, 1982. We have, however, delayed decision in this case pending the decision of the Supreme Court in Budzechowski v. The Bell Telephone Company of Pennsylvania. The Supreme Court issued an opinion in Budzichowski on December 7, 1983.

      . The standard to be utilized by the trial court in ruling upon a motion for summary judgment is ably discussed in the opinion of our distinguished colleague Judge John G. Brosky for the court en banc in Christman v. Dravo Corporation, 319 Pa.Super. 378, 380-381, 466 A.2d 209, 210 (1983).


author: WATKINS, Judge:

text:
    473 A.2d 171
    NATIONWIDE MUTUAL INSURANCE COMPANY v. David Lee HASSINGER, Judy D. Harvey, Administratrix of the Estate of Richard L. Harvey, Deceased; and Judy D. Harvey, In her own right. Appeal of Judy D. HARVEY. NATIONWIDE MUTUAL INSURANCE COMPANY v. David Lee HASSINGER, Judy D. Harvey, Administratrix of the Estate of Richard L. Harvey, Deceased; and Judy D. Harvey, In her own right. Appeal of David Lee HASSINGER.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1983.
    Filed March 2, 1984.

      See also, 315 Pa.Superior Ct. 97, 461 A.2d 814.

      Jack E. Feinberg, Philadelphia, for Harvey, appellant (at No. 350) and appellee (at No. 358).
    David E. Lehman, Harrisburg, for Nationwide Mutual Insurance Co., appellant (at No. 358) and appellee (at No. 350).
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from an order of the Court of Common Pleas of Juniata County declaring that since the death of Richard L. Harvey was the result of intentional conduct on the part of the insured, David L. Hassinger, there was no insurance coverage for claims arising out of that death.

In the early morning hours of November 9, 1975, the decedent Richard L. Harvey was struck and killed by a motor vehicle owned and operated by David L. Hassinger. At the time of the incident, the decedent was walking through a parking lot when Hassinger drove his car over the curb, across the sidewalk, and hit the decedent. The decedent was propelled onto the hood of the car, after which he slipped underneath the car and was run over. As a result, the decedent suffered serious injuries which caused his death.

A civil action was commenced in the Huntingdon County Court of Common Pleas by Mrs. Judy Harvey, widow of the decedent. She sought damages against Hassinger in her capacity as administratrix of her husband’s estate and in her own right. As the insurance carrier for the vehicle involved, Nationwide Mutual Insurance Company defended Hassinger subject to a reservation of rights. On March 28, 1979, a verdict was returned in favor of Mrs. Harvey in the amount of $305,000.

Nationwide subsequently petitioned the Court of Common Pleas of Juniata County for a declaratory judgment under its insurance policy with Hassinger claiming that it was not responsible for the liability of Hassinger. It was Nationwide’s contention that Hassinger acted intentionally in striking the decedent. Therefore, he was excluded from coverage under a provision in his insurance policy.

Since both Hassinger and Mrs. Harvey had an interest in the declaratory judgment, both were named as Respondents. They contended that, at the time of the incident, Hassinger was so intoxicated as to be incapable of forming an intent to cause his vehicle to strike and kill the decedent. In the absence of any intent, they believed that Nationwide was liable under the policy for the verdict against Hassinger.

The Petition for Declaratory Judgment proceeded to trial before a jury on November 25 and 26, 1980. After hearing the evidence, the jury was asked for its finding with respect to one question: Did Mr. Hassinger act intentionally? The jury answered the interrogatory affirmatively. The court entered a judgment in favor of Nationwide and Hassinger and Harvey brought the instant appeal.

Appellant’s first contention is that the trial judge erred in admitting a photocopy of the insurance policy which had been issued to Hassinger rather than allowing the jury to decide the existence or non-existence of the policy. Appellants submitted that the copy of the policy indicated that the insurance coverage was applicable to a 1966 vehicle, while the vehicle which struck the decedent was a 1965 vehicle. They also contend that appellee did not sufficiently prove delivery of the policy to Hassinger or that Hassinger intended to be bound by the exclusion for intentional acts. The rationale for making these arguments is difficult to comprehend, since appellants are effectively arguing that there was no insurance at all. If the trial court had agreed with appellants’ arguments, Nationwide would not have been responsible for Hassinger’s liability even if his actions were found to be unintentional. Nonetheless, the trial court properly held that the evidence was sufficient to establish that the copy admitted was a copy of the policy issued to Hassinger and that it provided insurance coverage for the vehicle involved. It is irrelevant whether or not Hassinger intended to be bound by the exclusion for intentional acts, since it is against the public policy of this Commonwealth to provide insurance coverage for intentional acts. Esmond v. Liscio, 209 Pa.Superior Ct. 200, 224 A.2d 793 (1966).

Appellants’ next contention is that the trial judge erred in allowing the prior testimony of a witness from a criminal hearing to be introduced into evidence.

At a hearing before a District Justice which took place six days after the incident, Russell (Jack) Rowles testified that after striking the decedent, Hassinger got out of his car and said: “I told you I would get the son-of-a-bitch.” At the hearing on the Petition for Declaratory Judgment, counsel for Nationwide asked Mr. Rowles whether he could recall of anyone getting out of the car after it struck the decedent. Mr. Rowles replied:

“I really ... I won’t say. I’m not positive. This is the second time it came up to this, and my first testimony was fresh and everything, and I really can’t say. I’m not sure.”

At that time, counsel for Nationwide proposed to introduce the prior testimony of Mr. Rowles. Nationwide argued that the prior testimony was admissible under the doctrine of past recollection recorded.

In order for the contents of a writing to be admissible as post recollection recorded, a foundation must be laid showing that four requirements are met: 1) the witness must have had first hand knowledge of the event; 2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it; 3) the witness must lack a present recollection of the event; and 4) the witness must vouch for the accuracy of the written memorandum. Commonwealth v. Cooley, 484 Pa. 14, 398 A.2d 637 (1979). In addition, it has been held that before a document may be admitted as a recording of a witness’ recollection of a past event, the witness himself must have had an opportunity to review the document. If, after reviewing the document, the witness testifies that this memory has not been refreshed, the document may be admitted into evidence. Commonwealth v. Kendig, 215 Pa.Superior Ct. 139, 257 A.2d 354 (1969).

The requirement that the person must have had first hand knowledge of the event was clearly met since Mr. Rowles was an eyewitness to the incident. Appellants contend that the second requirement was not fulfilled, arguing that testimony recorded at a preliminary hearing held six days after the event does not constitute a memorandum made “at or near the time of the event.” Less than a week had passed between the time of the event and the preliminary hearing. Although Mr. Rowles’ testimony was not recorded immediately after the incident occurred, it was recorded at a time near enough to the event that he could have had a clear and accurate memory of it. Mr. Rowles himself testified that the events had been fresh in his mind when he testified at the preliminary hearing. Therefore, the second requirement for admission of the transcript as past recollection recorded was fulfilled.

The third requirement is that the witness must lack a present recollection of the event. At the hearing on the Petition for Declaratory Judgment, Mr. Rowles was asked questions concerning his testimony at the previous criminal hearing. He stated that he remembered testifying at the preliminary hearing, that the events about which he testified had been fresh in his mind, and that his testimony was true. The following exchange took place between counsel for Nationwide and Mr. Rowles: “Q. And you have no present recollection of whether he got out of his car, is that correct? A. Correct.” This unequivocal response to counsel’s question, coupled with responses such as, “I’m not positive” and “I’m not sure.” established sufficiently that Mr. Rowles had no recollection of the events to which he had previously testified.

In connection with the third requirement, appellants object to the admission of the transcript because Mr. Rowles never had an opportunity to review the document, as required by Commonwealth v. Kendig, supra. Counsel for Nationwide had attempted to lay the proper foundation by offering to show a portion of the prior testimony to Mr. Rowles. Appellants objected and the trial court sustained the objection. Since counsel for Nationwide was precluded by the court from showing this testimony to Mr. Rowles, the lack of present recollection had to be proven by alternative means. Taking into consideration the circumstances and the cumulative testimony elicited from Mr. Rowles, we are satisfied that a sufficient foundation was laid establishing that he had no present recollection of the events about which he had previously testified.

The final requirement for the admission of a document as past recollection recorded is that the witness must vouch for the accuracy of the memorandum. Counsel for Nationwide read Mr. Rowles his previous testimony, which was essentially that the man who was driving the car which struck the decedent got out and said: “I told you I would get the son-of-a-bitch.” When asked whether that was a correct record of what he had said at the preliminary hearing, Mr. Rowles replied affirmatively. The fourth requirement was, therefore, fulfilled.

Appellants’ next complaint is that the trial judge erred in refusing to instruct the jury to disregard a speech made by Nationwide’s counsel after a particular line of questioning by Mrs. Harvey’s counsel. Nationwide had subpoened Robert Poche and Susan Wileman, who had been eyewitnesses to the events of November 9,1975. At the close of the first day of the hearing, Nationwide advised the trial court that they were prepared to release the two witnesses without calling them to testify. Their identity was disclosed to counsel for appellants. The next day, Mrs. Harvey’s counsel called Mr. Poche as a witness and began a series of question regarding who had subpoenaed him and Ms. Wile-man. Counsel for Nationwide objected and explained that the line of questioning was merely an attempt to raise inferences of impropriety on the part of Nation wide in failing to call them as witnesses. The trial judge agreed. Appellant’s counsel then asked the trial judge for an instruction to the jury to disregard the speech made by counsel for Nationwide.

Nationwide’s counsel properly objected to the line of questioning and merely explained the grounds for the objection. The obvious inference raised by the questions asked by Mrs. Harvey’s counsel is that, if Mr. Poche had been called as a witness for Nationwide, he would have testified adversely to Nationwide’s interests. Such an inference is only permitted where the uncalled witness is peculiarly within the reach and knowledge of only one of the parties. It may not arise where the witnesses are equally available to both parties. Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972). The witnesses became equally available to both sides when Nationwide disclosed their identity to appellant’s counsel. Therefore, the line of questioning was improper, and Nationwide’s objection was properly sustained. The statements made by Nationwide’s counsel in an attempt to explain the reasons for his objection were not so prejudicial as to require an instruction to the jury to disregard the remarks.

The final issues raised by appellants relate to the elements of the charge to the jury. Appellants’ first contention in this regard is that the trial judge improperly instructed the jury concerning the legal standards for determining intentional conduct. The trial judge instructed the jury, in pertinent part, that intent means:

“The actor desired to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it... If the actor knows that the consequences are certain, or substantially certain, to result from his act and still goes ahead, he is treated by the law as if he had in fact desired to produce the result... And if you find that the defendant, Mr. Hassinger, did have the intent to harm or kill any individual — not necessarily Mr. Harvey — then that is sufficient to find that that was his intention and that he did act intentionally.”

The charge to the jury with regard to intent accurately recites the Restatement (Second) of Torts, Section 8A, which has been cited as authoritative in Pennsylvania. Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976); Turner Appeal, 44 Pa.Comm.Ct. 326, 403 A.2d 1346 (1979). Intent may also be transferred from the intended victim to another. Restatement (Second) of Torts, Section 16.

Appellants’ contention that the trial judge improperly instructed the jury concerning the legal standards for evaluating the effect of intoxicants upon the ability to commit an intentional act is without merit. In his charge to the jury, the trial judge clearly and precisely instructed the jury that the intoxicants imbibed by Hassinger were to be considered in determining if Hassinger had the ability to formulate an intent. It was also emphasized that if one does not have the ability to formulate an intent, the resulting act is not intentional. The charge was a fair statement of the law of Pennsylvania.

Appellant’s final contention is that the trial judge erred in charging the jury as to the weight to be given the evidence. The trial judge made reference to the scales of justice and, in one sentence, charged the jury to pile onto the scales all of the witnesses produced by either side. Appellants argue that this implied that the jury should find in favor of whatever side produced the most witnesses. They have picked one sentence out of the charge and now ask for reversal on that basis. However, a reading of the charge as a whole reveals that the trial judge instructed the jury that the credibility rather than the sheer number of witnesses was to be considered by the jury. The trial judge also gave a corrective instruction to that effect. Where the court has distinctly corrected an alleged error so as to leave no doubt as to the law to be applied, there will be no reversal. Black v. A.E. Troutman, 385 Pa. 138, 122 A.2d 201 (1956).

Order affirmed.


author: WICKERSHAM, Judge: BECK, Judge,

text:
    473 A.2d 176
    COMMONWEALTH of Pennsylvania v. Victor M. BRACERO, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 10, 1983.
    Filed March 16, 1984.

      Joseph C. Mesics, Public Defender, Lebanon, for appellant.
    William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   WICKERSHAM, Judge:

On February 17, 1981, appellant, Victor Bracero, was arrested and charged with the commission of a burglary at the home of Mr. and Mrs. Steinrock, 225 South Tenth Street in Lebanon, Pennsylvania on February 14, 1981. On June 24, 1981, after a trial held before the Honorable John A. Walter, a jury found the appellant guilty as charged. Post trial motions were filed and denied. On January 22, 1982, appellant was sentenced to pay costs and a fine of $200.00 and to undergo imprisonment for not less than five (5) years or more than twenty (20) years. This appeal timely followed.

Appellant states the sole issue on appeal as follows:

Whether the Trial Court erred in refusing to admit the testimony of a Harry Tobias, a witness whose testimony was offered in Chambers, on two occasions, during the jury trial of the case?

Brief for Appellant at 2.

The record indicates that counsel for the appellant offered the following information in chambers prior to trial:

MR. MESICS [counsel for appellant]: Harry Tobias, who lives at 89 Lebanon Village, will be called as a witness for Victor Bracero and he will testify as follows: That he knows a fellow by the name of Frankie Rodriquez who is also known in the community with an alias of “Spunk”; that he spoke with this fellow “Spunk” on Friday, the 20th of February, 1981. Harry was over at the Down Town Lounge socializing, and he saw “Spunk” there. “Spunk” was talking about going to Florida. “Spunk” told Harry that he would give him a hundred dollars for the ride, so he took “Spunk” with him.
During this trip between Lebanon and Miami, Harry observed that “Spunk” had a lot of money with him. He saw a lot of money in his wallet, and he dropped “Spunk” off in Miami. While they were going down there, “Spunk” told Harry Tobias that he did a robbery on Tenth Street.
They left for Florida on Saturday, the 21st of February, at 4:00 in the afternoon. They got there on Sunday, the 22nd of February, at 8:00 at night, and they drove down in Harry Tobias’ Alpha Romeo Grand Prix automobile. “Spunk” told Harry that while he was committing this burglary, that the lady screamed and then he left the house. The house was several stories in heighth and it was on Tenth Street in Lebanon, and that “Spunk” — he will testify that “Spunk” looks exactly like Victor Bracero.
MR. FEEMAN [assistant district attorney]: I object to that. It’s not admissible. Number one, it’s irrelevant. Number two, it doesn’t exclude the Defendant. Number three, it is all hearsay.
MR. MESICS: Okay. I would like to also state this on the record, that I also have another witness, a Maria Ramos[] who went to Detective Heverling on the 5th of March of 1981 and reported essentially the same thing to Detective Heverling; that she had also talked to this fellow “Spunk” and that “Spunk” had talked to her about how he wasn’t gonna take the rap, and that he had silver that was stolen and he was taking it over to Louie’s Action Center. So, there’s some basis for my offer other than something that Harry Tobias comes in here and tells me.
THE COURT: I don’t know how you can overcome the hearsay.
MR. MESICS: Well, the only basis for my asking that his testimony be admitted was because it was on South Tenth Street in the city of Lebanon and the other facts support what I know about the case from the preliminary hearing and from the details, what happened — you know, how the Defendant or whoever it is that .committed this left the premises; it was when the lady woke up and saw him or parts of his body, screamed and then the person left; and that it was a house with more than one story. So, that’s the basis for my offer, your Honor.
THE COURT: I don’t think that’s enough there. The offer is rejected.

(N.T., 6-23-81, at 3-6). At a later time in the proceedings, counsel for appellant again attempted to have the testimony of Harry Tobias admitted.

MR. MESICS: Now, your Honor, I would again like to make my offer for the testimony of Harry Tobias; and there was something that I neglected to mention today, this morning when I made that offer. There was another item I think which is important in making his offer and hoping that you will admit his testimony, was that he also mentioned — this fellow “Spunk” also mentioned to Harry Tobias that it was a barber shop that was involved in this home, for what that’s worth. This is a beauty parlor here and these are Spanish speaking people.
THE COURT: No. My ruling still stands.

(N.T., 6-23-81, at 58).

Appellant acknowledges that the evidence offered through Harry Tobias is hearsay evidence and is generally inadmissible. Brief for Appellant at 4. Appellant argues, however, that the statements made to Tobias by Rodriguez (“Spunk”) were declarations against penal interest and therefore admissible as an exception to the hearsay rule.

Although our courts have now recognized the admissibility of the declaration against penal interest as an exception to the hearsay rule, it is also clear that not all such statements are per se admissible in evidence. Such declarations must be made under circumstances that provide considerable assurance of their reliability in order to be admissible as exceptions to the hearsay rule.

Commonwealth v. Ayala, 277 Pa.Super. 363, 368, 419 A.2d 1187, 1189 (1980) (citations and quotations omitted).

This court first recognized a declaration against penal interest as an exception to the hearsay rule in Commonwealth v. Hackett, 225 Pa.Super. 22, 307 A.2d 334 (1973). In that case, the defendant was found unconscious in his automobile. Heroin was detected in his bloodstream. Defendant was charged with possession of heroin and operating an automobile under the influence of a narcotic drug. Hackett’s defense was that he had involuntarily consumed heroin when he drank an unfinished soda left at the gas station where he worked by one Dennis Keyser. Defense counsel made an offer of proof, seeking to call the defendant’s former private counsel who would have testified that Keyser told him that he (Keyser) had “fixed” the defendant by putting heroin in the soda bottle. The defense also sought to introduce a signed written statement made by Keyser describing the incident as Hackett alleged it had occurred. The trial court refused to admit either the oral or written statements.

This court reversed. In doing so, the court stated:

Public policy, the fundamental principles of fairness and due process of law require the admission of declarations against penal interest where it can be determined that those statements: (1) exculpate the defendant from the crime for which he is charged; (2) are inherently trustworthy in that they are written or orally made to reliable persons of authority or those having adverse interests to the declarant; and, that they are made pretrial or during the trial itself.

Id., 225 Pa.Superior Ct. at 29-30, 307 A.2d at 338.

Since the Pennsylvania Supreme Court has not as yet issued an opinion concerning declarations against penal interest which has received a majority of votes from its members, we look to our own Hackett, supra, decision for guidance in determining the admissibility of the alleged statements in the instant case.

Basically, Hackett indicates that statements offered as declarations against penal interest are admissible only if they exculpate the defendant and are inherently trustworthy in that they were made to persons of authority or to persons having adverse interests to the declarant. Neither of these criteria are present in the instant case.

First, the offer of proof did not establish that Rodriguez’ alleged statements would exculpate appellant. In contrast, the statements sought to be admitted in Hackett would have actually shown that Hackett’s ingestion of the heroin was involuntary and was caused by Keyser. Instantly, we note that the evidence sought to be admitted through Harry Tobias does not actually exculpate the appellant. Rodriguez apparently never explicitly stated that he committed the burglary with which appellant is charged and that appellant was not involved. Furthermore, it is not clear that the burglary to which Rodriguez allegedly admitted is the same offense with which appellant is charged. The offer of testimony did not indicate on what date Rodriguez allegedly committed the burglary. Also, Rodriguez said only that he burglarized a house on Tenth Street; we do not know that it is the same house as that involved in the instant case.

Neither is the second Hackett criteria met in the instant case. In Hackett, the statements against penal interest were made to defendant and his counsel. One of the statements was written and signed by the declarant. Obviously, both the defendant and his counsel were in a position adverse to that of the declarant. Therefore, the statements were deemed to be trustworthy.

Instantly, the factual situation is much different. The declarations were not made under circumstances that assure us of their reliability. Rodriguez (“Spunk”) allegedly made these statements to Tobias while Tobias was driving him to Florida. We do not believe that it was necessarily against Rodriguez’ penal interest to make these statements to the man who was driving him out of the jurisdiction in which the crime allegedly occurred. Also, Rodriguez never made these statements to anyone in authority or to anyone with an interest adverse to his own. Neither did Tobias report Rodriguez’ statements to the police.

We do not believe that Rodriguez’ alleged statements were made under circumstances that assure us of their reliability. From the record before us, we are unable to say that the trial judge abused his discretion in refusing to admit Harry Tobias’ testimony. We uphold the ruling of the lower court.

Judgment of sentence affirmed.

BECK, J., files a dissenting statement.

BECK, Judge,

dissenting:

I dissent. I would remand for a new trial on the ground that the trial court erred in excluding the proffered testimony by Harry Tobias concerning statements by Frankie “Spunk” Rodriguez against Rodriguez’ penal interest. Although I base my conclusion on the law as it now stands, I suggest that this case demonstrates the need to clarify the law in this area.

The exception to the hearsay rule for declarations against interest originally extended only to statements against the declarant’s pecuniary or proprietary interest. See Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). The United States Supreme Court recognized a limited exception for statements against penal interest “originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability” in Chambers v. Mississippi, 410 U.S. 284, 300, 93 S.Ct. 1038, 1048, 35 L.Ed.2d 297 (1973).

In this Court, the case for admissibility of declarations against penal interest was first presented persuasively in dissent in Commonwealth v. Honigman, 216 Pa.Super. 303, 264 A.2d 424 (1970) (Hoffman, J., dissenting). Judge Hoffman argued that “[t]he distinction between penal and proprietary interests ... is illogical, irrelevant, and usually undetectable.” 216 Pa.Super. 309, 264 A.2d at 427. We first held a declaration against penal interest admissible in Commonwealth v. Hackett, 225 Pa.Super. 22, 307 A.2d 334 (1973). Our holding in Hackett was limited; we admitted only those statements against penal interest which exculpate the defendant and are inherently trustworthy. Statements were trustworthy if they were made to a person in authority or to a person having an adverse interest to the declarant.

After Hackett, the Pennsylvania Supreme Court twice considered the scope of the hearsay exception for declarations against penal interest without reaching a conclusion which commanded a majority of the Court. In Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974), only six Justices heard the case. Two Justices (Nix, J., concurred in the result) joined an opinion of the Court holding that only those declarations against penal interest made “under circumstances that provided considerable assurance of their reliability” were admissible. Id., 457 Pa. at 302, 324 A.2d at 346, quoting Chambers v. Mississippi, 410 U.S. 284, 300, 93 S.Ct. 1038, 1048, 35 L.Ed.2d 297 (1973). The opinion also expressed approval of our decision in Hackett. Three Justices, though, joined in a concurring opinion (which is properly denominated as the plurality opinion, see Commonwealth v. Colon, 461 Pa. 577, 581, 337 A.2d 554, 556 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976)), which would have held that all declarations against penal interest are admissible and circumstances affecting reliability merely go to the weight of the evidence. This analysis, stated by Roberts, J., writing for the plurality in the Nash concurrence, was restated by Justice Roberts while speaking for the Court in Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976), but once again the opinion commanded the agreement of only three Justices (One Justice concurred in a separate opinion and three Justices concurred in the result).

I am of the opinion that the plurality in Nash and Colon stated the better rule. Declarations against interest are admitted under an exception to the rule against hearsay because the very fact that a statement is against the speaker’s interest provides the quantum of reliability needed to overcome the hearsay rule’s bar to admissibility. See Chambers, 410 U.S. at 299, 93 S.Ct. at 1047 (the exception is “founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it is made”). Were I free to do so, I would follow this rule and admit the hearsay statements of Rodriguez simply as declarations against his penal interest, letting the circumstances surrounding the declarations be considered by the trier of fact in weighing the evidence.

However, in the absence of an authoritative statement from oúr Supreme Court, this Court has either felt itself bound by Hackett, see Commonwealth v. Pompey, 248 Pa.Super. 410, 375 A.2d 163 (1977), or has at least required strong indicia of reliability generally as an admissibility condition, see Commonwealth v. Ayala, 277 Pa.Super. 363, 419 A.2d 1187 (1980). Even under Hackett, though, I would find the statements in the instant case admissible.

I emphasize that this case does not involve an attempt by one accomplice or codefendant to exonerate another, a situation which we properly view with considerable skepticism. Commonwealth v. Davis, 308 Pa.Super. 398, 454 A.2d 595 (1982); Commonwealth v. Ayala, supra. Nevertheless, the majority would exclude the proffered testimony. It appears the majority holds that the requisite indicia of reliability are lacking because the statement was not made to someone in authority or with an adverse interest and because it did not specifically refer to the same crime or specifically exculpate the appellant.

It is not necessarily fatal to admissibility, though, that the declarant made the statement to a friend or acquaintance. That was precisely the situation in Nash, where those members of the Court who would require indicia of reliability held that it was improper for the trial court to exclude the proffered evidence as a matter of law without allowing the defendant to demonstrate its reliability. In the words of the United States Supreme Court in Chambers, “[Declarant] stood to benefit nothing by disclosing his role ... [to his friends], and he must have been aware of the possibility that disclosure would lead to criminal prosecution.” Chambers, 410 U.S. at 301, 93 S.Ct. at 1048. Indeed, in the instant case, the declarant’s inculpatory statement itself had the effect of placing the witness Tobias in an adverse position. Declarant disclosed his involvement in a burglary to Tobias while Tobias was driving him to Florida. It would then be quite reasonable for Tobias to become concerned that by assisting a possible felon in fleeing the jurisdiction, he could be guilty of the crime of hindering apprehension (18 Pa.C.S. § 5105). Therefore, the statements in question were made to someone with an adverse interest to the declarant.

The second issue, that of specificity, was addressed in Commonwealth v. Hutchinson, 290 Pa.Super. 254, 264, 434 A.2d 740, 745 (1981), where this Court held that “only those admissions containing specific incriminating facts” are admissible. The declaration found inadmissible in Hutchinson consisted of a statement by the defendant Hutchinson’s brother to the effect that he had taken $600 in a robbery. No other details were given. Contrast this with the detailed statement of Rodriguez which described the premises, gave the street location, and related that in the course of the burglary, a woman in the house encountered declarant and screamed at him, whereupon he fled. Admittedly, declarant did not give an exact date or address and never said in so many words, “Bracero was not involved,” but it is unrealistic to expect such precision of language and it is not mandated by Hackett and Hutchinson. Hackett merely requires that the statement exculpate the defendant; it does not hold that this cannot be done circumstantially. Were this statement offered in a trial of declarant for the burglary at 225 South Tenth Street, Lebanon, on February 14, 1981, we would not hesitate to find that the jury could properly draw an inference of guilt based on this and other circumstantial evidence. Moreover, each of the facts contained in declarant’s statement (the size of the house, the street location, the presence of a barber shop , the woman who screamed at the intruder) was corroborated by evidence admitted at trial of the facts and circumstances of the crime charged. In Chambers, the United States Supreme Court found such corroboration to be strong evidence of the statement’s reliability. Under the circumstances, the inference that the declarant and the witnesses who testified at trial described the same incident is nearly inescapable.

The proffered hearsay declaration, when read in light of the facts and circumstances of the case, clearly exculpates appellant Bracero. First, declarant did not state to Tobias that anyone else entered the home with him or was involved in the burglary in any way. Secondly, Bracero was not charged with conspiracy, and the Commonwealth did not attempt to establish at trial that others had acted in concert with him. A similar situation led the United States Supreme Court in Chambers to state that “[t]o the extent that [declarant’s] sworn confession tended to incriminate him, it tended also to exculpate Chambers.” 410 U.S. at 297, 93 S.Ct. at 1046. Finally, Tobias was also prepared to testify to a close physical resemblance between Bracero and the declarant. Such evidence would be relevant only if there were just one burglar and appellant sought to establish a defense of mistaken identity.

I would hold, therefore, that the declaration of Rodriguez against his penal interest more than meets the admissibility requirements of Hackett and that the trial judge abused his discretion in excluding the evidence. The probative value of this evidence is very high, and it was obviously central to appellant’s defense. Therefore, the case should be remanded for a new trial.

Although my conclusion is based on an interpretation of Hackett, further clarification of this area of the law by the Supreme Court of Pennsylvania would be desirable.

      . 18 Pa.C.S.A. § 3502; Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1.

      . In his post trial motions, appellant claimed that the trial court erred in refusing to admit the testimony of Harry Tobias. The post trial motions, however, make no mention of Maria Ramos’ testimony. Neither does appellant’s issue on appeal refer to Maria Ramos’ testimony. Thus, any question as to the admissibility of Maria Ramos’ testimony has not been properly preserved for review. See Judge Walter’s Opinion for the Court En Banc, 1-4-82, at 2-3.

      . We recognize that the Pennsylvania Supreme Court addressed the issue of a declaration against penal interest as an exception to the hearsay rule in both Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976) and Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974); however, neither opinion commanded the agreement of a majority of the court. Plurality opinions do not have precedential authority, Commonwealth v. Scott, 279 Pa.Super. 8, 420 A.2d 717 (1980); thus, we adhere to the traditional rule as expressed in our Hackett decision.

      . In her dissent, Judge Beck argues that when Rodriguez made the alleged statement to Tobias, “it would then be quite reasonable for Tobias to become concerned that by assisting a possible felon in fleeing the jurisdiction, he could be guilty of the crime of hindering apprehension." Thus, the alleged statement itself placed Tobias in an adverse position. We disagree. While Tobias might legally have been guilty of the crime of hindering apprehension, we don’t believe that this necessarily placed Tobias in a position adverse to the alleged declarant. First, there is no indication that Tobias was aware of any possible legal proceeding that could be brought against him as a result of his actions. Further, we note that Rodriguez was paying Tobias to drive him to Florida. We don’t believe Tobias was in an adverse position to the alleged declarant.

      . Evidence at trial established that the shop in the front of the residence was a beauty parlor, not a barber shop. However, declarant’s mistake as to the probable gender of the customers of the shop is not nearly as significant as the fact that his identification of the business and general description of the building was closely corroborated by the evidence at trial.


author: WICKERSHAM, Judge:

text:
    473 A.2d 183
    Nancy JASKIEWICZ, Appellant v. Robert L. JASKIEWICZ.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed March 16, 1984.

      Henry O. Heiser, III, Gettysburg, for appellant.
    Lovette M. Mott, Gettysburg, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   WICKERSHAM, Judge:

In this child support action, appellant is the mother and appellee is the father of a child, Jennifer, born January 1, 1973. The parties are no longer husband and wife. Appellee has since remarried and is the father of a second child born of his present marriage.

In an order entered on March 9, 1982, appellee was directed to pay support for Jennifer in the amount of $40.00 per week while employed and $26.00 per week while unemployed. At the time of the entry of the order, appellee had remarried and his second wife was pregnant. Upon petition of appellee, a modification hearing was held on February 8, 1983. Appellee’s petition alleged that a reduction in the amount he was to pay for support of Jennifer was necessary because appellee had become the father of a second child on August 26, 1982. Although the evidence presented at the hearing indicated that there had been no material increase in appellee’s expenses, the lower court found that the birth of the second child was a substantial and material change in circumstances requiring a reduction in the original support order. Thus, on February 8, 1983, the court amended its previous order and directed appellee to pay $26.50 per week for support of Jennifer. Appellant filed a timely appeal to the court’s modification of the original support order.

Appellant poses two issues for our consideration:

A. Does the birth of a second child warrant a reduction in support when expenses increased thereby are offset by increased income?
B. Did the lower court commit error in basing the amount of the modified order on a chart guideline which ignores need or expenses and fixes support based solely on income and the number of dependents?

Brief for Appellant at 3.

Because we decide that we must vacate the order of the lower court on the basis that the modification of the original support order was unwarranted, we do not reach appellant’s second issue.

In considering appellant’s first issue, we first note that our scope of review in support proceedings is limited; absent a clear abuse of discretion, we will defer to the order of the lower court. Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 38, 457 A.2d 98, 101 (1983).

A support order may be modified only when the evidence produced at a hearing establishes a substantial change in circumstances. Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976).

The well-settled principles governing requests for modification of child support orders are as follows: First, that the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification, Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 366, 421 A.2d 762, 766 (1980) ..., Commonwealth ex rel. Haertsch v. Haertsch, [267 Pa.Super. 283, 406 A.2d 805 (1979) ]; second, that only material and substantial changes in circumstances, as proven by competent evidence, will warrant modification of a support order, Commonwealth ex rel. Caswell v. Caswell, supra, [280 Pa.Super.] at 366, 421 A.2d at 766 ...; Commonwealth ex rel. Delbaugh v. Delbaugh, 258 Pa.Super. 127, 392 A.2d 717 (1978); and third, that a modification may only be based upon facts appearing in the record which show such permanent change in circumstances as to require such modification, Commonwealth ex rel. Caswell v. Caswell, 280 Pa.Super. 359, 366, 421 A.2d at 766.

Commonwealth ex rel. Stone v. Stone, 293 Pa.Super. 427, 430, 439 A.2d 185, 187 (1981) (quotations and italics omitted).

Instantly, the February 8, 1983 hearing established that appellee’s expenses were about the same as they had been at the time of the support hearing on March 9,1982. Lower ct. op., 3-8-83, at 2. Although the lower court does not compare the appellee’s income at the time of each order, an examination of the record indicates that appellee’s income actually increased between the entry of the March 9, 1982 support order and the modification hearing held on February 8, 1983. Thus, the only basis for the modification of the original support order was the birth of the second child. In fact, the lower court held that “[t]he birth of a second child is considered a substantial and material change in circumstances.” Lower ct. op., 3-8-83, at 4.

We disagree. Since appellee’s income had not decreased and his expenses had not increased, his ability to pay the original order had not changed. The birth of appellee’s second child was not sufficient basis, in and of itself, for modification of the support order. Considering all the pertinent facts of record, we find that appellee failed to meet his burden of proof as to changed circumstances. Thus, the lower court abused its discretion in modifying the original support order.

Of course, if appellee can establish that the birth of his second child has substantially increased his expenses, or has otherwise resulted in a material change in circumstances, he is free to re-petition the lower court for a modification of the support order. Until that time when appellee proves a substantial change in circumstances, however, we cannot approve a modification of the original support ordér. Therefore, we vacate the lower court’s order of February 8, 1983 and reinstate the original support order as entered on March 9, 1982.

Order vacated.