author: JOHNSON, Judge:

text:
    459 A.2d 1285
    COMMONWEALTH of Pennsylvania v. Kenneth S. WARREN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 16, 1982.
    Filed May 6, 1983.
    Brosky, J., concurred in result.

      John Woodcock, Jr., Public Defender, Hollidaysburg, for appellant.
    Oliver Ebner J. Mattas, Jr., District Attorney, Hollidaysburg, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

This appeal arises from appellant’s convictions for involuntary manslaughter and driving under the influence of alcohol. Sentence for involuntary manslaughter was for two to four years imprisonment and a $1,000 fine. Sentence for driving under the influence was for six to twelve months imprisonment and a $200 fine.

The charges were brought as a result of an automobile collision between appellant’s vehicle and a second vehicle on a mountainous stretch of road known as Devil’s Elbow near Altoona, Pennsylvania on August 28, 1978. As a result of the collision, two occupants of the other vehicle were killed. Immediately prior to the collision, appellant was observed driving in an erratic manner, criss-crossing the highway.

The administration of a breathalyzer test indicated appellant’s blood-alcohol level exceeded the legal limit.

Appellant raises five issues on appeal, namely whether the trial court erred: (1) in its charge regarding credibility, (2) in its charge by allegedly referring to the defense testimony as circumstantial, (3) in its charge by unfairly emphasizing the Commonwealth’s evidence and downgrading the defense evidence, thereby permitting a verdict based on insufficient evidence, (4) in permitting the admission of an allegedly inflammatory and prejudicial photograph, and (5) in granting the Commonwealth’s request for extension of the time for trial pursuant to Pa.R.Crim.P. 1100 (Rule 1100).

I. — III.

Appellant alleges various errors concerning the trial court’s charge to the jury. We note that in reviewing a jury charge for prejudicial and reversible error, this court must view the charge as a whole for its general effect and not consider isolated excerpts. Commonwealth v. Vernille, 275 Pa.Super. 263, 418 A.2d 713 (1980). Reviewing the charge in this light, we find no error by the trial court.

Our review of the charge on credibility indicates that it was proper and was not unfair when viewed as a whole.

After the initial charge to the jury, the trial court clarified its charge upon the request of appellant to indicate that it did not intend to indicate that the defense testimony was solely circumstantial. This additional charge made harmless any error in the court’s original charge.

Our review of the charge with respect to appellant’s third issue fails to disclose any unfairness in the court’s emphasis of the evidence. Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981), it is clear that sufficient evidence had been presented to support the jury verdict.

IV.

Appellant’s fourth issue concerns the admission of an allegedly inflammatory photograph at trial. However, appellant’s objection was to the photograph’s status as a duplication only. Therefore, the issue has been waived. See Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982) (where reason for objection is specifically stated, all other reasons for exclusions are waived).

V.

Appellant argues that the trial court erred in granting the Commonwealth’s petition for extension under Rule 1100 because no testimony was taken to support the extension and therefore, appellant was not brought to trial within 180 days as required by section (a)(2) of the Rule.

The record indicates that a complaint was filed on August 29, 1978 for driving under the influence. A second complaint was filed September 8, 1978 containing the charges of involuntary manslaughter, homicide by vehicle and the summary vehicle code offenses. The Rule 1100 run date was February 26, 1979, regarding the filing of the first complaint.

The Commonwealth argues that the run date was March 8, 1979, 181 days from the filing of the second of the two complaints. We disagree.

The speedy trial .rule contemplates commencement of the running of the mandatory period at the point criminal proceedings are initiated. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Therefore, when a complaint is presented to a court, the Rule 1100 period begins to run. Commonwealth v. Thomas, 266 Pa.Super. 381, 404 A.2d 1340 (1979), petition for allowance of appeal denied.

Furthermore, we agree with the discussion of this issue as found in Commonwealth v. Earp, 476 Pa. 369, 373-4, 382 A.2d 1215, 1217 (1978) (per now Chief Justice Roberts, with two Justices concurring and former Chief Justice Eagen concurring in the result):

Accordingly, we have held that Rule 1100(a)(2) “contemplates the commencement of the running of the mandatory period at the point criminal proceedings are initiated.” Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826, 829 (1977). Moreover, our Rules provide that all charges arising out of a criminal transaction shall be treated as a single case:
“When more than one offense is alleged to have been committed by one person arising out of the same incident, the issuing authority shall accept only one complaint, and shall docket the matter as a single case.”
Pa.R.Crim.P. 131(b).

Earp then held that the 180 day period begins to run on all charges arising out of a criminal transaction upon the initiation of proceedings charging defendant with any offense involved in that transaction.

We note that the facts in the instant case differ markedly from those cases where the initial complaint filed is dismissed in its entirety and a second complaint subsequently filed. See Commonwealth v. Finfrock, 257 Pa.Super. 555, 391 A.2d 621 (1978).

All charges brought against appellant in the instant case arose out of a single incident, namely the collision. Therefore, those charges should have been brought in a single complaint. Pa.R.Crim.P. 131(b). Although two complaints were filed, each containing different charges, the filing of the first complaint commenced the 180 day period.

Trial was scheduled for February 8, 1979. However, pursuant to original defense counsel’s petition to withdraw, filed January 22, 1979, the trial court entered an order dated February 8, 1979 permitting trial counsel to withdraw and extending the time for trial to April 13, 1979, stating that this extension was made with appellant’s consent. On February 16, 1979, the public defender’s office entered an appearance for appellant. The Commonwealth filed its petition for an extension of time for trial on February 22, 1979. Appellant’s motion to dismiss was filed March 8, 1979.

The hearing on the Commonwealth’s extension petition was held March 15, 1979. At that hearing, the Commonwealth reiterated the allegations in its petition which stated that trial could not be brought within 180 days because of original defense counsel’s withdrawal on the date of trial. The Commonwealth’s attorney also requested the court to take judicial notice of the procedural history of appellant’s case. Finally, the Commonwealth’s attorney stated that because of trial counsel’s withdrawal, "... there was no way conceivably possible for the District Attorney’s Office to bring the matter on for trial during the January term of trial court.”

The trial court then issued an order dated March 15, 1979 denying appellant’s motion to dismiss and granting the Commonwealth’s petition for extension, extending the trial date to April 13, 1979.

Appellant was brought to trial April 2, 1979 and after a mistrial, retried and convicted in June of 1979.

At the conclusion of the March 15 hearing, counsel for appellant stated:

BY THE COURT:
Mr. Wall, any statement you want to make for the record?
BY MR. WALL: (counsel for appellant)
Only based on the allegations the District Attorney has made and the fact that we have an application received from this individual on February 8, 1979, which would be consistent with those allegations; I would feel that there’s no further motion by this office to dismiss this action.

We note that the motion to dismiss merely alleged that Appellant had not been brought to trial within 180 days. That portion of the hearing transcript quoted above does not indicate any argument in support of appellant’s motion; on the contrary, it indicates that the motion to dismiss was either withdrawn or abandoned at that time. To be preserved for review, an issue must not only be raised by post-trial motion, but also, not abandoned when the case is argued to the trial court. Commonwealth v. Urbina, 290 Pa.Super. 117, 434 A.2d 157 (1981). See also Commonwealth v. Johnson, 450 Pa. 575, 301 A.2d 632 (1973) (issue based on objection withdrawn by defense counsel at trial cannot be raised later on appeal).

Therefore, this issue has been waived.

Judgment of sentence is affirmed.

BROSKY, J., concurs in the result.

      . 18 Pa.C.S.A. § 2504.

      . 75 Pa.C.S.A. § 3731. Appellant was also convicted of two summary motor vehicle code violations, which sentences were suspended.

      . We note that appellant in his brief states that a proper objection was made; however, appellant has failed to indicate where such an objection was made, in violation of Pa.R.A.P. 2119(e). In any event, our review of the record fails to disclose an objection relating to the alleged inflammatory nature of the photograph.

      . February 25, 1979, the 180th day, was a Sunday, therefore the 26th becomes the final date for trial.

      . The correct run date from the filing of the second complaint would have been March 7, not March 8, 1979.

      . The reference to January term apparently refers to the February trial list.


source: Caselaw Access Project

license: Public Domain

text:
    459 A.2d 1289
    In re ESTATE OF Jesse F. MACFARLANE a/k/a Jesse Fletcher Macfarlane, Deceased. Appeal of Malcolm MACFARLANE, Elizabeth Macfarlane and Louise Macfarlane Walthour.
    Superior Court of Pennsylvania.
    Argued June 15, 1982.
    Filed May 6, 1983.

      Thomas F. Nelson, Pittsburgh, for appellants.
    John D. Truxall, Pittsburgh, for Pgh. Nat. Bank, participating party.
    David Max Baer, Pittsburgh, for Noble, participating party.
    Malcolm F. Macfarlane, Pittsburgh, participating party, in pro. per.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

The instant appeal involves the interpretation of a provision in the will of the deceased testator, Jesse F. Macfarlane. The testator died on December 11, 1979 leaving a valid will dated October 2, 1979 which was duly admitted to probate.

The will provisions relevant to this appeal state:

FIRST: A. I give all my tangible personal property, together with any existing insurance thereon, to my wife, ELIZABETH P. MACFARLANE, or if she does not survive me, I give such items of my tangible personal property to the following named individuals who are then living. [Followed by nine numbered subparagraphs containing directions for the disposition of specific items and a tenth subparagraph disposing of the balance of testator’s tangible personal property to appellants.]
SECOND: I give the residue of my estate to PITTSBURGH NATIONAL BANK, as trustee, to hold under the terms of my trust agreement dated October 2, 1979, ... or if such agreement is not in effect at the time of my death, to hold in trust under the terms specified in such agreement on the date of this will....

The trust agreement referred to established a marital and a residuary trust for the benefit of testator’s wife, Elizabeth P., during her lifetime. Upon her death, the trusts were to be divided into three separate trusts for the benefit of testator’s brother Malcolm, his sister Elizabeth and his niece Louise Macfarlane Walthour, individually.

Testator’s wife died two months after testator, accelerating the secondary life estates in the individual trusts. These secondary trust beneficiaries, appellants in the instant case, challenge the ruling by the trial court that certain gold and silver coins, owned by the testator at the time of his death, constitute tangible personal property and therefore pass under Article FIRST of testator’s will, rather than pass to the trusts for testator’s wife, as part of the residue of testator’s estate.

Appellants argue that the testator’s intent was for the coins to pass to the trusts created for his wife and not directly to her through the provision FIRST of testator’s will. They specifically argue that testator considered the coins to be an investment or cash, thus constituting intangible personal property. Appellants further support their argument by referring to evidence presented that (1) testator was concerned with providing for his wife who was in poor health and (2) testator failed to specifically mention the coins in his will, which enumerated numerous specific bequests of tangible personal property.

A hearing was held in the trial court and evidence presented by appellants to ascertain testator’s intent concerning the disposition of the coins. The testimony presented the following facts:

Testator was not a numismatic collector of coins. He believed it prudent to accumulate gold and silver as a “hedge” against a collapsing economy and a failing dollar. Testator was interested in gold as an investment, as indicated by his alleged statement that “[y]ou have it in your hand and you feel well.” Testator was also concerned for his wife’s poor health and inability to manage her affairs, hence the creation of the trust for her benefit. Testator, prior to entering the hospital, told his sister Elizabeth that he had hidden silver coins in his home and also gave her his gold coins for safe keeping, with the provision that she not tell anyone of their existence. The scrivener of testator’s will testified that he was unaware of testator’s accumulation of coins and that testator never mentioned them in regard to the preparation of the will or the trusts.

From this testimony, appellants make four arguments: (1) that the trial court erred in narrowly interpreting testator’s comprehension of the coins as tangible personal property, (2) that the facts and circumstances presented from the evidence demonstrate testator’s intention to add his accumulation of coins to the trust, (3) that the doctrine of ejusdem generis compels the exclusion of the coins from the term “tangible personal property” and (4) that the lifting of the prohibition against holding gold has changed the character of gold coins held for investment purposes.

Initially, we must formulate our scope of review in will interpretation matters.

It is now hornbook law (1) that the testator’s intent is the polestar and must prevail; and (2) that his intent must be gathered from a consideration of (a) all the language contained in the four corners of his will and (b) his scheme of distribution and (c) the circumstances surrounding him at the time he made his will and (d) the existing facts; and (3) that technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting or the testator’s intent is for any reason uncertain[.]

In re Burleigh’s Estate, 405 Pa. 373, 376, 175 A.2d 838, 839 (1961) (citations omitted). See also Estate of Houston, 491 Pa. 339, 421 A.2d 166 (1980).

An ambiguity in a will must be found without reliance on extrinsic evidence; extrinsic evidence is admissible only to resolve, not create, an ambiguity. See In re Estate of Kelly, 473 Pa. 48, 373 A.2d 744 (1977).

Furthermore, in construing a will, technical words must ordinarily be given their legal effect since it must be presumed that they were intentionally and intelligently employed. In re Baldwin's Estate, 377 Pa. 268, 105 A.2d 52 (1954). See also In re Estate of Grier, 403 Pa. 517, 170 A.2d 545 (1961). Therefore, it is not what the court thinks the testator might or would have said in the existing circumstances, or even what the court thinks he meant to say, but what is the meaning of his words. In re Estate of Baker, 495 Pa. 522, 434 A.2d 1213 (1981); In re Beisgen’s Estate, 387 Pa. 425, 128 A.2d 52 (1956).

The issue turns on the testator’s use in his will of the technical words “tangible personal property.” In distinguishing tangible property from intangible property, it has been stated that:

Tangible property is that which may be felt or touched; property capable of being possessed or realized; ... that which is visible and corporeal; having substance and body as contrasted with incorporeal rights such as franchises, choses in action, copyrights, the circulation of a newspaper, annuities and the like____ Intangible property is property which has no intrinsic or marketable value, but is merely the representative or evidence of value, such as certificates of stock, bonds, promissory notes, and franchises.

73 C.J.S. Property § 5 at p. 156 (1951) (footnotes omitted). See also Spring v. Lonigro, 6 Mass.App. 68, 372 N.E.2d 1309 (1978), app. denied, 375 Mass. 788 (1978).

Tangible personal property has been defined as “[property such as a chair or a watch which may be touched or felt in contrast to a contract.” Black’s Law Dictionary (5th ed. 1979). "

We now turn to the first issue raised by appellants; that the trial court erred in narrowly interpreting testator’s comprehension of the coins as tangible personal property.

Appellants argue that this narrow interpretation of testator’s intent concerning his use of the phrase “tangible personal property” in effect defeats what they believe to be testator’s true intent. However, as stated in Battles’ Estate, 379 Pa. 140, 143-44, 108 A.2d 688, 690 (1954):

[T]his Court has consistently decided that in construing a will, it is not what testator may have meant but the meaning of the language used ... The intention of the testator, however, must be determined from what appears upon the face of the will. Extrinsic evidence of surrounding facts must only relate to the meaning of ambiguous words of the will. It cannot be received as evidence of testator’s intention independent of the written words employed.

(emphasis in original; citations omitted).

Therefore, only if the language of testator’s will is ambiguous on its face, may the court look to evidence outside of the will for assistance in interpretation. Battles ’ Estate, supra.

Upon an analysis of the four corners of testator’s will, we discern no ambiguity. The will utilizes the technical words “tangible personal property,” which words have a specific legal definition, as previously set forth. The gold and silver coins clearly are tangible property, in that they can be felt or touched. Also, because the coins have both intrinsic and marketable value in and of themselves, they cannot be considered intangible property, without more. The coins are more than the mere representation or evidence of value, as opposed to stock certificates or paper currency. See Lawson Estate, 28 D & C 2d 642 (Phila.Co. 1962) (coin collection passes through provision of will regarding tangible personal property; coin collection is not cash).

Therefore, as the language of testator’s will is not ambiguous on its face, no oral testimony can be used to prove testator’s intent. We hold that the trial court was correct in narrowly determining whether the coins were tangible personal property, without regard to the evidence presented by appellants regarding the testator’s alleged intent. Our holding on appellants’ first issue also settles the second issue as being without merit.

The third issue concerns the application of the ejusdem generis rule of construction to the instant case.

Appellants refer us to testator’s specific disposition of various items of his personal property in the event that testator’s wife fails to survive him. Appellants then note that the coins are specifically not mentioned in any of those provisions. Appellants would have this court apply the ejusdem generis rule of construction which states that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. Black’s Law Dictionary (5th ed. 1979). See also In re Beisgen’s Estate, supra. However, this rule of construction is inapplicable to the instant case, as the will is not ambiguous. See In re Burleigh’s Estate, supra.

Finally, we find no merit in appellants’ final argument concerning the lifting of the prohibition against holding gold coins as an investment.

The order of December 8, 1981 is affirmed.

      . The date of death value of the coins was appraised at $19,006.86, consisting of over 5000 individual coins.

      . Testator also held over $75,000 in gold stocks at his death.

      . Appellants do not argue that the coins were not testator’s personal property.


author: HOFFMAN, Judge:

text:
    459 A.2d 1292
    Rosemarie DeTorro McDONALD, Appellant, v. KEYSTONE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1983.
    Filed May 6, 1983.
    Petition for Allowance of Appeal Denied Aug. 23, 1983.

      Eugene Spector, Philadelphia, for appellant.
    Dennis Veneziale, Philadelphia, for appellee.
    Before CERCONE, P.J., and CAVANAUGH, WIEAND, CIRILLO, POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in vacating an arbitrators’ award granting her $15,000 in uninsured motorist benefits. She argues that: (1) she was entitled to recover uninsured benefits because the driver’s legal minimum policy limits were too low to fully compensate her; and (2) appellee, her insurer, was estopped from denying her coverage because it had failed to comply with her request for “full and complete “coverage” or to adequately explain how the legal minimum coverage she purchased would fall short of being full and complete. Finding no merit in appellant’s contentions, we affirm the order of the lower court.

When appellant applied for automobile insurance she requested “full and complete” coverage. Appellee’s agent sold her a standard no-fault and uninsured motorist policy with legal minimum limits of $15,000 per person. The agent never explained the circumstances in which the insurer would not pay “uninsured” motorist benefits, nor did he explain that, if appellant wished to purchase insurance with higher policy limits, she could also obtain a form of excess, or underinsured motorist, coverage that would pay her the difference between her policy limits and those of a liable third party with lower policy limits.

On January 19, 1979, while appellant was a passenger, Frieda Larr drove her car into a utility pole, seriously injuring appellant. Appellant sought no-fault benefits from appellee and eventually received $7,500. Appellant threatened a tort action against Ms. Larr, whose insurer settled, paying appellant Ms. Larr’s policy limits of $15,000. Appellant then sought additional recovery from appellee under the “uninsured” motorist provision of her policy. After a hearing, the arbitrators awarded appellant $15,000 in uninsured motorist benefits. The lower court, however, reversed the award as being an error of law. This appeal followed, and we granted this en banc review.

An arbitrators’ award under the Act of 1927 is subject to judicial correction if it is “against the law, and is such that had it been the verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.” 5 P.S. 171(d); State Farm Mutual Ins. Co. v. Williams, 481 Pa. 130, 392 A.2d 281 (1978). See 42 Pa.C.S.A. § 7302(d)(2).

Appellant contends that, because the driver of the car in which she was injured did not have enough insurance to fully compensate appellant’s losses, that driver was underinsured, and therefore “uninsured” as to appellant’s remaining losses, so as to entitle appellant to uninsured motorist benefits. Our courts have specifically rejected this contention on grounds that the legislature, by the Uninsured Motorist Act, 40 P.S. § 2000, intended only to create a means to provide minimum coverage to persons injured by financially irresponsibile motorists carrying less than the legal minimum or no insurance. Our legislature did not intend to provide additional insurance to those who although they suffered severe injury had recourse to at least the legal minimum of insurance through the other motorist. Davis v. Government Employees’ Ins. Co., 500 Pa. 84, 454 A.2d 973 (1982). It is undisputed that the driver here carried the legal minimum of insurance, $15,000 per person, see 40 P.S. § 1009.104, and that the driver’s insurer paid that amount to appellant. Thus, the driver was not “uninsured,” and appellant is not entitled to recover from appellee under the uninsured motorist provision of her policy.

Appellant contends also that appellee is estopped from denying her uninsured motorist coverage because appellee’s agent failed to comply with her request for “full and complete” coverage or to adequately explain how the minimum coverage she purchased would fall short of being full and complete. Our courts have held that if an insurance policy contains unusual provisions that might defeat the reasonable expectations of the insured, the insurer has a duty at the time of application to volunteer information explaining the insured’s rights. Failure to do so will prevent the insurer from enforcing those provisions against the insured. E.g., Collister v. Nationwide Life Ins. Co., 479 Pa. 579, 388 A.2d 1346 (1978); Kelmo Enterprises v. Commercial Union Ins. Co., 285 Pa.Superior Ct. 13, 426 A.2d 680 (1981); Klischer v. Nationwide Life Ins. Co., 281 Pa.Superior Ct. 292, 422 A.2d 175 (1980); Hionis v. Northern Mutual Ins. Co., 230 Pa.Superior Ct. 511, 327 A.2d 363 (1974). See generally Keeton, Insurance Rights at Variance with Policy Provisions, 83 Harv.L.Rev. 961 (1970). This special rule is based on the adhesive nature of insurance transactions and the parties’ disparity in bargaining power. Collister v. Nationwide Life Ins. Co., supra. Our courts also recognize traditional estoppel theories in the insurance context, as when the insured justifiably relies, to her detriment, upon the representations or promises of the insurer or its agent. E.g., DeRosa v. St. Paul Ins. Co., 222 Pa.Superior Ct. 424, 295 A.2d 157 (1972); Barth v. State Farm Fire and Casualty Co., 214 Pa.Superior Ct. 434, 257 A.2d 671 (1969). See Restatement (Second) of Contracts, § 90. No such unusual provisions existed here. Appellee’s not paying “uninsured” motorist benefits when another motorist’s insurer has already paid amounts equal to appellant’s policy limits did not defeat appellee’s reasonable expectations about “uninsured” motorist coverage. Nor is appellee estopped from denying coverage by its agent’s failure to explain how appellant’s coverage was less than “full and complete.” Appellant, although unschooled in insurance, could understand that, because of the policy limits, she would not receive more than $15,000 from her insurer for a given accident. Collister v. Nationwide Life Ins. Co., supra (parties can bargain over amount of monetary coverage). However, appellant was probably unaware of the circumstances when another insurer rather than her own would pay for her losses. See, e.g., 40 P.S. § 1009.204 (priority scheme for sources of no-fault benefits). Likewise, she was probably unaware of the categories of damages— medical expenses, work loss, other personal injury damages, and property loss — that would be recoverable only under no-fault or only in third party actions. Nonetheless, she reasonably relied, even after the agent’s failure to explain, that by full and complete coverage she would be compensated at least to $15,000 in the event of an auto accident. That expectation was fulfilled here by her receiving $15,000 from the driver’s insurer in addition to the $7,500 no-fault benefits she received from appellee. Thus, in the circumstances, appellee is not required by the agent’s failure to explain to afford appellee any additional coverage. Accordingly, we affirm the lower court’s order vacating the arbitrators’ award.

Affirmed.

      . Although appellee’s evidence contradicts certain of these facts, we are bound by the arbitrators’ credibility determinations and findings of fact supported by the record. See N.T. September 10, 1980 at 41, 44-45, 61.

      . McDonald v. Keystone Ins. Co., Court of Common Pleas of Philadelphia County, No. 3335 March Term 1980 (unappealed arbitrators’ award).

      . Appellant contends that the lower court erred in reviewing the arbitrators’ award under the standards of the Act of 1927, permitting reversal for errors of law, rather than under the narrower standards for reviewing common-law arbitration. Appellant argues that because the insurance department’s model policy for uninsured motorist coverage provides for common-law arbitration, 31 Pa.Code § 63.2(a); Exhibit C, Condition 8; but see Ellison v. Safeguard Mutual Ins. Co., 209 Pa.Superior Ct. 492, 229 A.2d 482 (1967), and because he alleges our courts do not permit parties to waive arbitration, see Allstate Ins. Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969), then parties, particularly insurers, should not be permitted to waive the finality of common-law arbitration by providing in their policies, as here, for statutory arbitration. Appellant, however, waived this contention by failing to present it to the court below. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). In fact, appellant’s petition to confirm the arbitrators' award specifically stated that the arbitration, and thus review of it, was pursuant to the Act of 1927. Thus, the lower court’s and our review is pursuant to that Act.

      . Although the Act of 1927 has been repealed and replaced by statutory arbitration provisions that only permit judicial review of arbitrators’ errors of law in certain enumerated circumstances, see 42 Pa.C.S.A. §§ 7302(d)(2); 7315, the J.A.R.A. Continuation Act of 1980, § 501(b) preserves the error of law standard of review under any agreements, such as here, "expressly providing] for arbitration pursuant to ... the Act of ... 1927.” reprinted in 42 Pa.C.S.A. § 7302, Historical Note.

      . Examples of such unusual provisions that defeat reasonable expectations are exclusions and limitations, Kelmo Enterprises v. Commercial Union Ins. Co., supra, and denials of coverage even after acceptance of premiums, Collister v. Nationwide Life Ins. Co., supra.


author: WICKERSHAM, Judge: SPAETH, Judge,

text:
    460 A.2d 253
    COMMONWEALTH of Pennsylvania v. Michael KEYS, Appellant. COMMONWEALTH of Pennsylvania v. Kerry McNEIL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1982.
    Filed April 8, 1983.
    Reargument Denied June 15, 1983.
    Petition for Allowance of Appeal Denied July 25 & Nov. 8, 1983.

      Spaeth, J., filed concurring statement.
    William T. Cannon, Philadelphia, for appellants.
    Eric Beller, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   WICKERSHAM, Judge:

On January 9, 1980, appellants Kerry McNeil and Michael Keys were arrested and charged with murder and other related offenses arising from the shooting of Charles Vincent Wright, Jr., in Philadelphia on December 18, 1979. McNeil and Keys were also charged with drug offenses as a result of the presence of illegal drugs at the residence where they were arrested on the other charges. Specifically, McNeil was charged with bills of information, January Term, 1980, as follows: no. 1419-possession of controlled substance with intent to deliver, no. 1420-possessing an instrument of crime, no. 1421-criminal conspiracy, no. 1422-involuntary manslaughter, no. 1423-murder and voluntary manslaughter, no. 1424-criminal conspiracy.

Keys was charged with bills of information, January Term, 1980, as follows: no. 1425-possession of controlled substance with intent to deliver, no. 1426-criminal conspiracy, no. 1427-possessing an instrument of crime, no. 1428-criminal conspiracy, no. 1429-involuntary manslaughter, and no. 1430-murder and voluntary manslaughter.

The drug charges against both Keys and McNeil were severed from the murder and related charges on the motions of the Commonwealth.

This case proceeded to trial on May 12, 1980 on the bills of information for murder and voluntary manslaughter (nos. 1423 and 1430), possessing an instrument of crime (nos. 1420 and 1427) and criminal conspiracy (nos. 1421 and 1428). On May 16, 1980, McNeil was found guilty of murder in the first degree (no. 1423) and conspiracy (no. 1421): Keys was found guilty of murder in the first degree (no. 1430), possessing an instrument of crime (no. 1427) and conspiracy (no. 1428). Both defendants filed post-verdict motions which were denied.

On December 18, 1980, McNeil was sentenced to consecutive terms of life imprisonment for the first degree murder and not less than five nor more than ten years imprisonment for the conspiracy: Keys was sentenced to life imprisonment for the murder and to two terms of not less than two and one-half years nor more than five years imprisonment for possessing an instrument of crime and for conspiracy, such sentences to be served concurrently with each other but consecutively to the murder sentence. After the verdict, Keys and McNeil had been advised of their right to appeal and of their right to free counsel to prepare the appeal (Record at 1321-27).

Appellant Keys filed a notice of appeal on December 22, 1980, listing his appeal as being from bill of information no. 1425, January Term 1980, a crime he was not convicted of at this trial. Similarly, on December 24, 1980, appellant McNeil filed a notice of appeal listing his appeal as being from bill of information no. 1419, January Term, 1980, a crime he was not convicted of at this trial.

On May 5, 1981, McNeil’s counsel filed a petition to amend the caption of the notice of this appeal to reflect that it was an appeal from the bills McNeil was convicted of here. Keys’s counsel filed a similar petition on May 29, 1980. On June 18, 1980, by per curiam order, the Superior Court granted McNeil’s petition to amend; Keys’s petition was similarly granted on July 24, 1981 “without prejudice to the Commonwealth’s right to argue the jurisdictional propriety of amendment in its brief.”

A notice of appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). “[T]he court may not enlarge the time for filing a notice of appeal____” Pa.R.A.P. 105(b). We also note Judge Spaeth’s statement in Commonwealth v. Dozier, 294 Pa.Super. 249, 252 n. 1, 439 A.2d 1185, 1186-87 n. 1: “Appellant was also convicted on Bill of Information Number 591 February Term 1979 of simple assault. We cannot consider appellant’s arguments challenging that conviction, however, for appellant’s notice of appeal listed only Bill of Information Number 590 February Term 1979, on which he was convicted of rape.” See also Commonwealth v. Hill, 267 Pa.Super. 140, 142 n. 1, 406 A.2d 558, 559 n. 1 (1979):

Appellant argues that the evidence was insufficient to sustain the conviction of conspiracy, and that Section 906 of the Crimes Code precludes his conviction of both conspiracy and possession of an instrument of crime. We shall not consider appellant’s first argument because he failed to file a Notice of Appeal from the judgment of sentence on Indictment No. 1480, which is the indictment that charged him with conspiracy. Failure to file a timely Notice of Appeal is fatal to that appeal.

Here, McNeil and Keys did not petition to amend their notices of appeal to show their appeals were from the relevant bills until long after the time for filing a proper notice of appeal had passed.

In Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), the Pennsylvania Supreme Court allowed the filing of a late appeal that was caused by the illness of the secretary of appellant’s counsel; the court stated that “we are presented with a non-negligent failure to file a timely appeal ____” 485 Pa. at 259, 401 A.2d at 1135. In the present case, however, we note, as did the court in State Farm Mutual Auto Insurance Co. v. Schultz, 281 Pa.Super. 212, 218 n. 7, 421 A.2d 1224, 1227 n. 7 (1980): “There is no indication in the record that the late filing here was caused by non-negligent happenstance.”

We are aware that in Commonwealth v. Brown, 264 Pa.Super. 127, 399 A.2d 699 (1979), the Superior Court interpreted a notice of appeal from bill nos. “136 & 138” as a typographical error and decided that what was actually meant was that an appeal was being taken from bill nos. “136-138”, however, we note that the Superior Court was subsequently reversed by the Pennsylvania Supreme Court (see Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592) and the judgments of sentence reinstated. In so ruling, the Pennsylvania Supreme Court noted that because of its disposition of the appeal on other grounds it was unnecessary to rule on the merits of this issue. In any event the magnitude of the error in the present case (listing only a bill number from a severed charge and completely failing to indicate in any way that other bills were also being appealed from) is of a much higher degree than writing an ampersand rather than a dash and is, in fact, not so much indicative of a typographical error as it is of a negligent misapprehension as to which sentences on which bills are actually being appealed.

As we are without authority to extend the time for the filing of a notice of appeal, and as no timely appeal concerning the presently considered bills was filed, we must quash these appeals.

Appeals quashed.

SPAETH, J., files a concurring statement.

SPAETH, Judge,

concurring:

I don’t agree that Commonwealth v. Brown, 264 Pa.Super. 127, 399 A.2d 699 (1979), is distinguishable: both there and in this case the error was to omit typing the number of a bill or information on the notice of appeal. In my view the appeals should be quashed on the authority of Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), which I regard as sub silentio overruling Brown. In Bass the Supreme Court reaffirmed the rule that “[t]he negligence of an appellant, or an appellant’s counsel, or an agent of appellant’s counsel, has not been considered a sufficient excuse for the failure to file a timely appeal.” Id., 485 Pa. at 259, 401 A.2d at 1135. Here, both appellants were negligent.


author: PRICE, Judge:

text:
    460 A.2d 255
    COMMONWEALTH of Pennsylvania, v. Stanley DENNIS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed April 22, 1983.

      John P. Joyce, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, submitted a brief on behalf of Commonwealth, appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   PRICE, Judge:

Following a jury trial, appellant, Stanley Dennis, was found guilty of aggravated assault and sentenced to a term of not less than two nor more than five years imprisonment. On appeal from the order of the Court of Common Pleas of Allegheny County denying post-conviction relief, appellant alleges essentially three grounds of error. He contends that: (1) he was denied a fair trial because the court below refused to permit him to introduce evidence of the acquittal of the principal defense witness on charges stemming from the same incident; (2) the trial court erred in admitting three photographs depicting the victim’s injuries and the testimony of a medical records librarian as to an operation performed on the victim; and (3) the prosecuting attorney engaged in misconduct at trial which warranted the declaration of a mistrial. We find these contentions to be without merit, and affirm.

At trial, the alleged victim, Doyle Rose, Jr. testified that on April 29, 1979, he met his fiance, Elaine White, at “Big Daddy’s” bar on Pittsburgh’s Northside. While drinking at the bar, Mr. Rose heard a disturbance outside. When he went outside to investigate, he discovered a friend, Donald Brown, arguing with Robert Dennis, appellant’s brother. Mr. Rose spoke with Mr. Brown as appellant and Robert Dennis looked on. Mr. Rose testified that he knew neither of the Dennis brothers, and that he directed no hostile comment or gesture to either. According to Mr. Rose, when the conversation ended he turned to re-enter the bar, whereupon he was suddenly punched in the face by appellant. Mr. Rose and appellant then engaged in an exchange of blows for approximately five minutes, until they were separated by an onlooker. Mr. Rose testified that after the fighting had stopped, Robert Dennis punched him in the head, causing him to fall to the ground, and that as he lay on the ground, Robert Dennis and appellant kicked him repeatedly in the head, rendering him semi-conscious. Mr. Rose required surgery for injuries sustained during the fight.

Elaine White testified that when she left the bar, the fight was already in progress. According to Ms. White, the men were separated, and then Mr. Rose was attacked by the Dennis brothers and kicked in the head by Robert Dennis.

Robert Dennis, who was acquitted at an earlier trial of a charge of aggravated assault arising from the same incident, testified that he was attacked by Mr. Rose after Mr. Rose had initiated a fight with no provocation from either brother and had knocked appellant unconscious.

Appellant’s contention that the trial court erred in refusing to permit the jury to hear evidence of Robert Dennis’s acquittal is largely premised on the mistaken notion that “Robert Dennis was acquitted of the charges against him and could not as a matter of law be construed ... to be thereafter an ‘accomplice’.” Appellant’s Br. at 11. Thus, he urges that it was improper for the trial court to instruct the jury that appellant could be found guilty on a theory that he was an accomplice of Robert Dennis.

It is clear that under Pennsylvania law [a]n accomplice may be convicted on proof of the commission of the offense and his complicity therein, though the person claimed to have committed the offense ... has been acquitted.

18 Pa.C.S.A. § 306(g). See Commonwealth v. Brown, 473 Pa. 458, 375 A.2d 331 (1977) (previous acquittal of principal not a bar to prosecution of accomplice for same killing). Section 306(g) was patterned after a similar provision of the American Law Institute’s Model Penal Code, the comments to which explain that the statute

... does open up. the possibility that an accomplice may be prosecuted though the person charged with the commission of the crime has been acquitted. While inconsistent verdicts of this kind present a difficulty, they are intrinsic to the jury system and appear to be a lesser evil than granting immunity to the accomplice because justice has miscarried in the charge against the person who committed the offense.

Model Penal Code, Comments § 2.04(6) (Tent. Draft No. 1, 1953) (footnotes omitted). In Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980), our Supreme Court held that the subsequent acquittal of all alleged co-conspirators did not preclude upholding the defendant’s conspiracy conviction. In that case, the court noted that

an acquittal at any trial is never a guarantee that no crime has been committed. Rather it signifies only that the Commonwealth has not proved its case to the satisfaction of the jury. Thus, in the present case, different verdicts may well have been due to a variety of other circumstances, including a difference in the proof offered at trial.

Byrd, supra, 490 Pa. at 552, 417 A.2d at 177.

We are, of course, mindful that when there is Commonwealth evidence which tends to show that a defense witness is an accomplice, the defense may introduce evidence of the witness’s acquittal, for the limited purpose of restoring the value of the defense witness’s testimony. Commonwealth v. Meredith, 493 Pa. 1, 425 A.2d 334 (1981) (per Roberts, J. with two Justices concurring and one Justice concurring in the result). No such limited use was sought in this case, however. Rather, it is clear that evidence of Robert Dennis’s acquittal was offered generally, as proof of appellant’s innocence, and thus was properly excluded as irrelevant. Commonwealth v. Meredith, supra; Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972); Commonwealth v. Quaranta, 295 Pa. 264, 145 A. 89 (1928).

Appellant offers several arguments in support of his contention that evidence of Mr. Rose’s injuries were improperly admitted at trial. First, he maintains that such evidence was irrelevant, the defendant having been charged on the theory that he attempted to cause serious bodily injury to Mr. Rose, rather than that such injury in fact occurred. We cannot agree. Criminal intent may be proved by direct or circumstantial evidence. Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Gregory, 267 Pa.Superior Ct. 103, 406 A.2d 539 (1979). As intent is a subjective state of mind, it is, of necessity, difficult of direct proof. Evidence of injuries actually sustained by a victim will be an indication of the force and violence used, a factor clearly relevant to the degree of harm intended by an assailant.

Secondly, appellant maintains that three color photos depicting Mr. Rose’s injuries were inflammatory and should have been excluded on this basis. We do not agree. The question of the admissibility of photographs is a matter within the discretion of the trial court, and only an abuse of that discretion will constitute reversible error. Commonwealth v. Batty, 482 Pa. 173, 393 A.2d 435 (1978); Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974).

The general rule is that evidence is admissible where it is relevant and competent. This basic rule applies to the admission- of photographs as well as other types of demonstrative evidence. Commonwealth v. Sehroth, 479 Pa. 485, 487, 388 A.2d 1034, 1036 (1978). The challenged photographs were clearly relevant. The trial judge carefully separated the three photos from others available, finding them not to be inflammatory. (N.T. 55, 56). Having seen the challenged photos, we agree with the court below that they were neither gruesome nor inflammatory, and were properly admitted.

Appellant’s final objection to the evidence of Mr. Doyle’s injuries is that the trial court erred in permitting a medical records librarian to testify concerning an operation performed on Mr. Rose. It is far from clear that the hospital records were inadmissible as proof of Mr. Rose’s operation. In any event, the trial judge immediately instructed the jury to disregard the witness’s references to the operation. Under these circumstances, we can conceive of no possible prejudicial effect stemming from this testimony-

of most gang-type assaults from prosecution. See, U.S. v. Farries, 328 F.Supp. 1034, (M.D.Pa.1971), aff'd. 459 F.2d 1057 (3rd Cir.1972), cert. den. 409 U.S. 888, 93 S.Ct. 143, 34 L.Ed.2d 145 (1973). (Photos admissible not only against defendants charged with assaulting correctional officers, but against all defendants to show force and violence used by rioters).

Appellant’s third contention, that the prosecuting attorney engaged in misconduct warranting a mistrial, is based upon three remarks made by the district attorney during trial. The first remark was an indirect reference to the defense witness, Robert Dennis, as a “co-defendant”, the second a mistaken allusion made in summation to the victim as having injured his “tibia”, as opposed to his “femur” (another leg bone,) and the third, a comment, also in closing argument, concerning Donald Brown, who was not called as a witness at trial.

Of course, not every improper remark made by a prosecutor requires the granting of a new trial. Commonwealth v. Crittenton, 326 Pa. 25, 191 A. 358 (1937); Commonwealth v. Raffensberger, 291 Pa.Superior Ct. 193, 435 A.2d 864 (1981). Furthermore, allegedly prejudicial remarks must be read in the context of the case as a whole, with a particular view to the evidence presented and reasonable inferences drawn therefrom, in order to determine whether they are indeed prejudicial. See Commonwealth v. Boone, 286 Pa.Superior Ct. 384, 428 A.2d 1382 (1981), Commonwealth v. Bullock, 284 Pa.Superior Ct. 601, 426 A.2d 657 (1981).

Viewed in context, the isolated reference of the prosecutor to a “co-defendant” appears to have been a mere slip of the tongue, not necessarily referable to Robert Dennis from a juror’s view point. This remark was made during an objection to defense counsel’s insistence upon admitting testimony concerning Robert Dennis’ case (N.T. 105, 106). In context, the allegedly prejudicial comment was:

MR. HARPER: Your Honor, I am going to object to any further testimony pertaining to a co-defendant or anything else in this case. They have no merit as to this case.

(N.T. 106). As the jury was clearly aware from observation of the trial that Robert Dennis was not a co-defendant, we cannot see how this chance remark was prejudicial to appellant’s case. Similarly, the district attorney’s error in confusing the names of two leg bones in his argument to the jury was a minor mishap which can hardly have resulted in . any prejudicial effect.

Finally, appellant contends that a comment made by the prosecutor to the effect that the Commonwealth had made an evaluation of the case and determined that the testimony of Donald Brown was unnecessary was prejudicial and warranted the declaration of a mistrial. We note that after defense counsel objected to this remark, the Court promptly gave clear and specific instructions to the jury to disregard the statement and to draw no inference from the absence of Mr. Brown. We are satisfied that under these circumstances, the trial judge did not abuse his discretion in denying the motion for mistrial, and that this remark does not now warrant the granting of a new trial.

Order affirmed.

       This Decision was Reached Prior to the Death of Judge Price.

      . 18 Pa.C.S.A. § 2702(a)(1).

      . Section 2702(a)(1), under which appellant was charged provides that A person is guilty of aggravated assault if he ... attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to human life.

      . Appellant also maintains that evidence of Mr. Rose’s injuries should have been excluded because the Commonwealth could not show specifically which injuries were caused by appellant, as opposed to those caused by his brother. This argument clearly goes to the weight of the evidence, rather than its admissibility, and as such was a matter for determination by the jury. A rule which would exclude evidence of a victim’s injuries on such a basis would insulate the perpetrators

      . Where relevant photographs of a victim’s injuries are offered in evidence, a two-stepped analysis is employed. First, the court must decide whether a photograph is inflammatory in nature. If, but only if, the photo is deemed to be inflammatory, the court must then apply a balancing test, and determine whether the photo is of "such evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.” Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128, 134 (1980), cert. den. 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); Commonwealth v. Batty, 482 Pa. 173, 177, 393 A.2d 435, 437 (1978). - The three photos in the instant case merely depict Mr. Rose lying in a hospital bed with his eyes closed, showing some discoloration and swelling in the eye area. No blood appears and we see nothing in these photos which would be likely to inflame the minds or passions of the jurors.

      . Appellant argues that medical records are not admissible to show “treatment”, but only “treatment prescribed”, so that the fact that an operation was performed could not be shown in this manner. Our reading of the case law in the area indicates that the terms "treatment” and "treatment prescribed” are generally used interchangeably. See Commonwealth v. Mobley, 450 Pa. 431, 301 A.2d 622 (1973), Jumper v. Jumper, 240 Pa.Superior Ct. 99, 362 A.2d 411 (1976).

      . The jury was instructed that
      Mr. Harper was discussing Donald Brown prior to our sidebar and has apparently made some comment as to Donald Brown's non-appearance and to certain evaluations which may or may not have been made by the Commonwealth or the District Attorney’s office in evaluating this case.
      Now I am going to' ask you to disregard those comments ... because he did not testify it is improper for anybody to speculate on what Donald Brown may have said in this particular case had he been brought in to testify.
      (N.T. 227, 228).


author: WIEAND, Judge:

text:
    460 A.2d 260
    JOHN F. HARKINS CO., INC., v. SCHOOL DISTRICT OF PHILADELPHIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1982.
    Filed April 22, 1983.
    Petition for Allowance of Appeal Denied Dec. 27, 1983.

      Martin Horowitz, Philadelphia, for appellant.
    Robert W. Maris, Philadelphia, for appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal we are asked to review the trial court’s determination of the amount of increased compensation which a plumbing contractor was entitled to receive after the School District of the City of Philadelphia had temporarily advanced the date for completing a school construction project. The trial court’s award of additional compensation was determined by the difference between the contractor’s actual labor costs and the amount of the estimated labor costs included in his original bid, plus 15 percent for profit and overhead. In addition, the court made an award representing a ten percent saving which the contractor might have been able to make on the estimated labor costs contained in his original bid.

On April 28, 1969, a contract was entered between John F. Harkins Co., Inc., appellee, and the School District of Philadelphia, appellant, by the terms of which Harkins was to do the plumbing work in connection with the construction of West Philadelphia University City High School. The contract price was $1,092,920, and the contract terms established a completion date of 1,000 consecutive calendar days following receipt of notice to proceed. After construction had commenced, the school district, in an attempt to achieve an earlier occupancy date, issued a change order accelerating performance of the contract by approximately five months, from January 30, 1972 to September 1, 1971. In order to permit early completion, the district placed Harkins on overtime for a period of 26 weeks. On or about February 1, 1970, the school district revoked its earlier change order and reinstated the original completion date.

The contract between the parties permitted the school district to make changes and modifications so long as they were within the contract’s general scope. The contract provided for an “equitable adjustment” by the school district in the event changes or modifications resulted in an increase or decrease in the contractor’s cost of performance of the contract. The contract’s general conditions, in paragraph 22(b), stipulated as follows:

(b) The determination of the increase or decrease in compensation to be paid the contractor for additions to or reductions to the work, respectively, shall be determined by application of unit prices as set forth in the special conditions of the contract, or, in those cases where unit prices are not applicable, by a lump sum mutually agreed upon by the Board and the contractor. If, however, unit prices are not applicable, and if the parties cannot agree upon a lump sum then additional compensation to be paid the contractor shall be determined by the actual net cost in labor and materials plus fifteen per centum (15%) for profit and overhead.... The School District will make the final determination as to net cost of labor and materials.

The school district paid the contractor the sum of $57,241 to compensate him for the actual cost of overtime which he paid to his employees. However, Harkins was dissatisfied with this amount and commenced an action in assumpsit to recover additional damages allegedly sustained because of the overtime required before the accelerated completion date was revoked. The trial court, sitting without a jury, entered a general finding in favor of Harkins for $197,907, plus interest. The school district filed exceptions, alleging that the damages awarded by the court were improper and not supported by the evidence. In dismissing the school district’s exceptions, the trial judge authored an opinion explaining the manner in which he had calculated damages.

In awarding damages, the trial court had determined the difference between the contractor’s total labor costs of $481,803 and its initial bid estimate for labor in the amount of $276,513. This amount had then been reduced by the sum of $57,241 previously paid to the contractor by the school district to compensate him for actual overtime expenses incurred while the accelerated completion date remained in effect. The court had then added to this amount the sum of $27,651, which represented 10 percent of the original bid estimate. This additional sum, the court had concluded, was necessary to compensate the contractor for a built-in or engineered profit margin which might have been realized if the construction project had proceeded according to the original time schedule. Finally, the court had awarded the contractor an additional sum of $22,207, which represented profits and overhead at the rate of 15 percent on the labor overrun. After exceptions had been dismissed, judgment was entered on the findings of the trial court, and the school district appealed.

The proceeding in the trial court was not an action for breach of contract. It was a claim for an equitable adjustment of the contract price because of the school district’s change order which required the contractor to place his employees on overtime to meet an accelerated completion date. The school district had early conceded that an adjustment was necessary because of the contractor’s additional labor costs and had paid to the contractor an additional sum of $57,241. This amount had been determined according to actual overtime costs incurred by the contractor, plus profit and overhead. The school district, therefore, denied further liability. At trial, appellant offered no evidence. It argued, however, as it does on appeal, that the contractor failed to prove that it was entitled to recover additional sums. It contends on appeal that the trial court erred by making an award and that in doing so the court adopted a measure of damages which was imprecise, speculative and improper. We agree.

In order to prove additional damages, the contractor showed that his total labor costs had exceeded the estimated labor costs upon which the contract price had been based by $205,290. This measure of damages was a variation of the “total cost” approach which requires that the estimated cost under the contract be subtracted from the actual cost to determine damages.

The total cost method of determining damages is “inseparably connected with the rule that the amount of damages need not be ascertained with mathematical certainty to sustain an award in the [contractor’s] favor.” Rubin, “The Total Cost Method of Computing an Equitable Adjustment — An Analysis,” 26 Fed.B.J. 303, 304 (1966). It is premised on the fact that where a contractor is entitled to an adjustment, the governmental body should not be exonerated merely because the contractor is unable to prove his increased costs with precision. However, because the total cost method of measuring damages is imprecise it is fraught with danger and must be applied with caution.

This measure of damages has not been favored by the courts. It “ ‘has been tolerated only when no other mode was available and when the reliability of the supporting evidence was fully substantiated____ The acceptability of the method hinges on proof that (1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiffs bid or estimate was realistic; (3) its actual costs were reasonable; and (4) it was not responsible for the added expenses.’ ” Boyajian v. United States, 423 F.2d 1231, 1243 (Ct.Cl.1970) quoting W.R.B. Corp. v. United States, 183 Ct.Cl. 409, 426 (1968). The necessity for showing an accurate bid estimate prior to utilization of the total cost method is basic. In Great Lakes Dredge & Dock Co. v. United States, 96 F.Supp. 923, 119 Ct.Cl. 504 (1951), cert. denied, 342 U.S. 953, 72 S.Ct. 624, 96 L.Ed. 708 (1952), a case frequently cited in support of the total cost approach, the court considered the amount of an equitable adjustment to which the contractor was entitled on account of latent conditions encountered which differed from those which had been anticipated. The contractor sought to recover the difference between its estimated and actual costs, with certain adjustments. The court found, however, that the contractor’s bid had underestimated the cost of the work. Part of the contractor’s loss, therefore, was attributable to an underestimated bid and not to unexpected difficulties in completing performance. The court, accordingly, recalculated the estimate and awarded the contractor the difference between his increased costs and the court’s determination of what the anticipated job should have cost.

Several years after the Great Lakes Dredge & Dock Co. decision, the same court, in F.H. McGraw & Co. v. United States, 130 F.Supp. 394, 131 Ct.Cl. 501 (1955), termed the total cost method of calculating equitable adjustments unsatisfactory “because, among other things, it assumes plaintiff’s costs were reasonable and that plaintiff was not responsible for any increases in cost, and because it assumes plaintiffs bid was accurately computed, which is not always the case, by any means.” F.H. McGraw & Co. v. United States, supra at 400. The Court cautioned, therefore, that the Great Lakes decision was “not intended to give approval to this method of proving damage, except in an extreme case and under proper safeguards.” Id. In Lilley-Ames Co. v. United States, 293 F.2d 630, 154 Ct.Cl. 544 (1961), the contractor sought to recover the difference between its bid estimate and costs as a result of the government’s providing materials not in accord with the contract specifications. Rejecting the total cost method, the court allowed recovery only for the additional expenditures occasioned by the ill-sized materials. The contractor could not, the court held, include all of its costs arising from the contract’s performance as the basis of its recovery. The government was not obliged to reimburse the contractor for all losses, notwithstanding their nature.

Again in Wunderlich Contracting Co. v. United States, 351 F.2d 956, 173 Ct.Cl. 180 (1965), the Court of Claims rejected the total cost theory on the grounds that the contractor had failed to establish the government’s responsibility for the increased costs incurred. The court found that the only thing shown by the claimant had been the fact that he incurred a significant net loss in performing the contract. There had been no attempt to distinguish between expenses arising out of deficiencies in plans provided by the government and expenses attributable to purely extraneous factors. The court noted that the total cost approach was not to be used to afford the contractor a blanket recovery of all unrecouped costs on the contract, regardless of source. Rather, it remained necessary for the contractor to establish liability, causation and resultant injury. See also: Boyajian v. United States, supra at 1236, (“On [the record before the court] it is not possible to conclude that plaintiffs total contract loss, i.e., the difference between plaintiff’s contract expenditures and its contract receipts, is reasonably to be equated with the increased costs directly resulting from defendant’s alleged breaches.”); G.C.S., Inc. and I.C.S., Inc. v. Foster Wheeler Corp., 437 F.Supp. 764 (W.D.Pa.1977), aff'd, 578 F.2d 1374 (3d Cir.1978); G.C.S., Inc. and I.S. C., Inc. v. Foster Wheeler Corp., 437 F.Supp. 757 (W.D.Pa.1975).

In 1980, however, the Court of Appeals for the Third Circuit held that the district court for the western district of Pennsylvania had incorrectly rejected the total cost method. It did so in E. C. Ernst, Inc. v. Koppers Co., Inc., 626 F.2d 324, 327 (3d Cir.1980),

“because we believe that Pennsylvania, if faced with the question, would approve of that approach. Generally, under Pennsylvania law, damages need not be proved with mathematical certainty, only reasonable certainty. E.g., Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 261 A.2d 319, 324 (1970). Moreover, evidence of damages may consist of probabilities and inferences. See generally 11 P.L.E. Damages, § 158. We believe that a method that permits subtraction of contract cost from actual cost satisfies those standards. The objections normally made to the approach, such as that the bid may not be a reasonable estimate, can be adequately handled by making them a question of fact in each case.”

We have concluded, after reviewing the decided cases and the facts of the instant case, that the “total cost” method of determining damages is imprecise and frequently an inaccurate measure of damages. It should be used only when the circumstances are exceptional. It should not be used unless no other method of determining damages is available and, then, only when its reliability has been established by supporting evidence.

In the instant case, the trial court found that an adjustment based on net cost of overtime plus 15 percent was inadequate to compensate appellee for work done on account of the temporary change order. It also found “no evidence that Harkins’ costs were unreasonable or that its bid was inaccurately computed____” Trial Court Opinion at 5. It concluded, therefore, that it had no alternative but to award damages for the difference between the total labor costs incurred by the contractor and the original estimate of such costs upon which the contract price had been determined.

Our independent review of the record persuades us that this was error. In the first place, the school district was to be the final arbiter of the contractor’s net cost. Pursuant to the provisions of the contract, it made a determination of appellee’s net increase in the cost of labor and made payment accordingly. The burden of proving by a fair preponderance of the evidence that additional damages had been incurred was on the contractor. To base an additional award on the “total cost” concept, it was essential for the contractor to prove that its initial estimate had been accurate, that its actual labor costs were reasonable and that the “total cost” measure of damages was reliable. If, as the trial court’s opinion implies, there was an absence of evidence upon which to base a finding that the initial estimate was either accurate or inaccurate and if it could not be determined from the evidence that the increased labor costs had been caused solely by the school district’s change order, an award of total labor costs was improper. The burden was not on the school district to prove the “total cost” approach inapplicable.

The contractor’s evidence in this case demonstrated clearly the unreliability of the “total cost” method of determining damages. The construction contract was a multi-year contract. On September 8, 1969, the contractor was required by the school district to accelerate performance by only five months and was placed on overtime for which additional compensation was paid for 26 weeks in the amount of $57,241. On or about February 1, 1970, the school district revoked its change order, reinstated the contract’s completion date of January 30, 1972, and instructed the contractor to discontinue the expenditure of moneys to meet the earlier completion date. Despite this relatively brief period of overtime, i.e., five months of a multi-year contract, appellee’s total labor costs exceeded his original estimate by approximately 70 percent. Moreover, between February 1, 1970, the approximate date of the revocation of the change order, and the completion of the contract — a period during which appellee was not required to be on overtime — his labor costs equalled his entire estimated cost of labor.

It seems clear, therefore, either that appellee’s initial estimate was inaccurate or that his increased labor costs were caused by factors other than the school district’s temporary order accelerating the completion date of the contract. This objective evidence of inaccuracy was not overcome by John Harkins’ general testimony, unsupported by documentary evidence and wholly uncorroborated, that appellee’s estimate of labor costs was similar to that of other bidders.

The trial court also erred when it awarded an additional sum to compensate the contractor for a ten percent built-in or engineered profit margin in his original labor estimate which he believed might have resulted in additional profit if construction had proceeded as originally contemplated. This “engineered saving” was entirely speculative and unwarranted. See: Oliver-Finnie Co. v. United States, 279 F.2d 498, 150 Ct.Cl. 189 (1960). See generally: Nakles v. Union Real Estate Co. of Pittsburgh, 415 Pa. 407, 411, 204 A.2d 50, 52 (1964) (Evidence of damage for loss of profits “must be reasonably precise so as to provide ... an adequate framework upon which to base a verdict.”); Highway Express Lines, Inc. v. Winter, 414 Pa. 340, 346, 200 A.2d 300, 303 (1964) (“[T]he law takes cognizance of neither speculative contracts nor speculative damages, but only such as are fixed and definite.”); Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 453-454, 197 A.2d 721, 727 (1964) (“[A] claim for damages must be supported by a reasonable basis for calculation; mere guess or speculation is not enough.”); Pollock v. Morelli, 245 Pa.Super. 388, 397, 369 A.2d 458, 463 (1976).

For the foregoing reasons we are constrained to conclude that appellee failed to produce evidence from which it could be found that it was entitled to an equitable adjustment in excess of the sum of $57,241 previously paid by appellant-school district. The difference between his estimated cost of labor and his total cost of labor was too imprecise and inaccurate under the circumstances of this case to support an award for additional sums. The award of damages in the amount of $197,907, plus interest, therefore, must be reversed.

Judgment reversed and now entered for appellant.


text:
    460 A.2d 266
    Charles W. HAWTHORNE, Sr., Administrator of the Estate of Richard Daniel Hawthorne, Deceased, Appellant, v. DRAVO CORPORATION, KEYSTONE DIVISION, v. BOROUGH OF INDUSTRY.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1982.
    Filed April 22, 1983.

      John Albert Miller, Beaver, for appellant.
    Oran W. Panner, Beaver, for Dravo, appellee.
    Bernard J. McAuley, Pittsburgh, for Borough of Industry, appellee.
    Before CERCONE, P.J., and WIEAND and BECK, JJ.
   WIEAND, Judge:

Richard D. Hawthorne was drowned when the vehicle which he permitted to drift into the shallow waters of the Ohio River suddenly plunged into deep water because of dredging operations which had been conducted unexpectedly close to the river’s edge. The administrator of his estate commenced an action in trespass against Dravo Corporation, which had conducted dredging operations pursuant to permit granted by the Pennsylvania Department of Environmental Resources (DER). After the plaintiff’s evidence had been presented, the trial court entered a compulsory nonsuit, which the court en banc refused to remove. Plaintiff appealed. We reverse and remand.

When we review the entry of a compulsory non-suit, this “ ‘Court must accept as true the facts presented by appellant, read the evidence in the light most favorable to the appellant and give the appellant the benefit of all reasonable inferences and deductions arising from such evidence. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977). When the trial court is presented with a choice between two reasonable inferences, the case must be submitted to the jury. Paul v. Hess Bros., Inc., 226 Pa.Super. 92, 312 A.2d 65 (1973).’ ” Lavely v. Wolota, 253 Pa.Super. 196, 199, 384 A.2d 1298, 1300 (1978), quoting Norton v. The City of Easton, 249 Pa.Super. 520, 523-524, 378 A.2d 417, 419 (1977). Accord: McNally v. Liebowitz, 498 Pa. 163, 170, 445 A.2d 716, 719 (1982); Kline v. Ball, 306 Pa.Super. 284, 285, 452 A.2d 727, 728 (1982); Barney v. Foradas, 305 Pa.Super. 404, 407, 451 A.2d 710, 712 (1982); Treadway v. Ebert Motor Co., 292 Pa.Super. 41, 46, 436 A.2d 994, 997 (1981); Duke and Co. v. Anderson, 275 Pa.Super. 65, 66-67, 418 A.2d 613, 614 (1980); Gill v. McGraw Electric Co., 264 Pa.Super. 368, 378, 399 A.2d 1095, 1100 (1979).

The record, when examined in the light most favorable to appellant, discloses that at or about midnight on November 11, 1974, the decedent drove a borrowed vehicle down Canton Street, in the Borough of Industry, Beaver County, to the edge of the Ohio River at a place known as Maude’s Landing. There, he, his girlfriend, Betsy Wardle, and two other passengers sat and looked at the lights on the opposite side of the river. The night was dark and foggy, however, and Betsy made several requests that they leave. Appellant’s decedent acceded to Betsy’s requests and began to shift the vehicle’s standard transmission into reverse. As he did so, the vehicle drifted forward a short distance and suddenly plunged into deep water. Betsy and the two additional passengers escaped by exiting the vehicle through a rear window. The vehicle came to rest on its roof in 20-25 feet of water at a distance of 10-15 feet from the shore.

The area at the end of Canton Street, known as Maude’s Landing or the “public ramp,” had been used for many years by area residents for launching boats, washing cars, swimming, wading and fishing. The river bottom in that vicinity had been leveled and filled with cement and slag many years before to facilitate boat launching, and a sand and gravel bar extended from the shoreline toward the middle of the river. Thus, the floor of the river had sloped gradually from the shoreline for a distance of between 30 and 50 feet. The sand bar had been covered by water varying in depth from a few inches at river’s edge to a few feet further from the shore. Area residents, including the decedent and his family, had driven their cars into the shallow water at the end of Canton Street in order to wash them and had backed their boat trailers and cars into the water in order to launch boats into and retrieve boats from the Ohio River. Sometime between September 30, 1974 and November 11, 1974 the sand bar at Maude’s Landing was removed by Dravo’s dredging operation, and a steep drop-off into deep water was created at or near the river’s edge.

Appellant contended in his complaint and at trial that Dravo had been negligent in removing the sand bar and in creating a sharp drop-off into deep water by dredging in violation of the permit which allowed its operations only at a distance of 25 feet from the shore. He also alleged that Dravo had been negligent for failing to remedy the resulting dangerous condition and for failing to warn members of the public that a concealed, dangerous condition had been created. Paragraph 18 of the permit issued by DER provided: “this permit is only valid for channel dredging no closer than the depth of dredging but no closer than 25 feet from the channel shoreline or island shorelines at normal pool elevations.” No evidence was offered concerning the depth of the dredging being conducted by Dravo. There was evidence, however, that substantial dredging had been accomplished much closer to the shoreline than twenty-five feet. The trial court concluded that this restriction on appellee’s dredging operations was not intended to protect occupants of vehicles which intruded upon the waters of the river. When the decedent allowed his vehicle to enter the river, his conduct was not foreseeable; and, therefore, he was not within the orbit of care which Dravo was required to exercise in conducting dredging operations. As to the decedent, the court held, Dravo owed no duty and could not be found negligent.

The permit which had been issued to Dravo was for commercial dredging pursuant to provisions of Section 1908-A of the Administrative Code of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-8. This section provided:

“The Department of Environmental Resources shall have the power and its duty shall be:
(3) To enter into agreements to sell, lease or otherwise dispose of any iron, coal, limestone, fire-clay, oil, gas and other minerals, except sand and gravel and minerals deposited as silt in pools created by dams, that may be found in or beneath the beds of navigable streams or bodies of water within the Commonwealth and non-navigable streams or bodies of water where the beds thereof are owned by the Commonwealth, on such terms and conditions as the board deems to be in the best interest of the Commonwealth____ Nothing herein contained shall authorize anyone to interfere with the free navigation of said streams or bodies of water or to undermine the bed thereof or to interfere with the rights of any person or persons holding property on the banks thereof.”

Under the authority of this statute, DER was permitted to impose conditions, such as precluding dredging within an established distance from shore, for the purpose of preserving the integrity of land and improvements along the river and also to protect the safety of persons who might enter the water. See: DER v. Warren Sand & Gravel Co., Inc., 62 D & C 2d 679 (Environmental Resources Board, 1973), aff'd, 20 Pa.Cmwlth. 186, 341 A.2d 556 (1975).

“ ‘[A] party to a contract by the very nature of his contractual undertaking may place himself in such a position that the law will impose upon him a duty to perform his contractual undertaking in such manner that third persons — strangers to the contract — will not be injured thereby; Prosser, Torts (2nd ed. 1955), § 385, pp. 514-519. It is not the contract per se which creates the duty; it is the law which imposes the duty because of the nature of the undertaking in the contract.’ ” Prost v. Caldwell Store, Inc., 409 Pa. 421, 425, 187 A.2d 273, 275 (1963) quoting Evans v. Otis Elevator Co., 403 Pa. 13, 18, 168 A.2d 573, 575 (1961). Accord: Doyle v. South Pittsburgh Water Company, 414 Pa. 199, 207, 199 A.2d 875, 880 (1964); St. Clair v. B & L Paving Co., 270 Pa.Super. 277, 279, 411 A.2d 525, 526 (1979); Printed Terry Finishing Company, Inc. v. City of Lebanon, 247 Pa.Super. 277, 290, 372 A.2d 460, 466-467 (1977). So, Dravo had a duty, unconnected with its contract, to exercise reasonable care to avoid subjecting persons who were not parties to the contract to an unreasonable risk of harm.

“ ‘A normal human being is held to foresee those injuries which are the consequence of his acts of omission or commission which he, as a reasonable human being, should have foreseen.’ ” Krisovich v. John Booth, Inc., 181 Pa.Super. 5, 10, 121 A.2d 890, 892 (1956) quoting Bisson v. John B. Kelly, Inc., 314 Pa. 99, 110, 170 A. 139, 143 (1934). “ ‘[Wjhether a person charged with negligence or negligent acts or omissions should have foreseen the injuries resulting from those acts or omissions is for the jury, if there is any credible evidence from which a reasonable conclusion can be drawn in support of the claim of neglect of duty.’ ” Prost v. Caldwell Store, Inc., supra 409 Pa. at 427, 187 A.2d at 276 quoting Bisson v. John B. Kelly, Inc., supra 314 Pa. at 110, 170 A. at 143 (emphasis supplied). Accord: Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 138-139, 153 A.2d 477, 480 (1959); Lavely v. Wolota, supra 253 Pa.Super. at 202, 384 A.2d at 1302; Printed Terry Finishing Company, Inc. v. City of Lebanon, supra 247 Pa.Super. at 291, 372 A.2d at 467; McNett v. Briggs, 217 Pa.Super. 322, 327-328, 272 A.2d 202, 205 (1970).

The evidence in this case was sufficient to permit a finding that Dravo Corporation knew or should have known that the sand bar at the foot of Canton Street had been used widely by members of the public for various activities, including vehicular intrusions of the river. It also knew or should have known that its dredging operations had removed the sand bar and substituted a steep, sudden drop-off into deep water, a condition close to but not readily visible from the shore. This evidence included testimony by Paul Walton, Jr., a resident of Industry and a former employee of Dravo who had worked on the dredge while it was in the area of Maude’s Landing, that employees of Dravo had frequently parked their cars at Maude’s Landing and had used a wooden skiff or yawl to reach the dredge. Supplies for the dredging operation, he said, were generally unloaded at Maude’s Landing and transferred by boat to the dredge. He testified that when he observed that the sand bar had been removed by Dravo’s dredging he requested his father to notify the Coast Guard that Dravo might be in violation of drédging regulations, and that it may have created a hazard to the community. Other witnesses testified that the sudden drop-off to the river bottom was not readily visible to persons on the shore. George A. Brown, an area resident who assisted in the rescue operations, testified that as he began to walk towards the river to wade into the water on the night of November 11, 1974, an employee of Dravo yelled from the dredge that he should watch out for the drop-off. William Tichy, a volunteer fireman who assisted in the recovery of Hawthorne’s body, testified that a Dravo employee on the dredge had hollered, “Now, watch, it’s deep there. There’s a dropoff there.” Appellant’s evidence also established that several members of the community, although they had observed the dredge in the river; were unaware that the dredge had removed the sand bar at the foot of Canton Street. It was also shown that Dravo had posted neither signs nor barricades to warn members of the public that the sand bar had been removed or that a sharp drop-off into deep water had been created close to the shore. This evidence, we conclude, was sufficient to submit to a jury the nature and extent of the duty of care owed by Dravo to persons entering the water at the edge of the Ohio River. It was sufficient to require that the jury decide whether appellee had violated a duty of care owed to appellant’s decedent under the circumstances of this case. See and compare: Yoffee v. Pennsylvania Power and Light, 385 Pa. 520, 123 A.2d 636 (1956); Bersani v. School District of Philadelphia, 310 Pa.Super. 1, 456 A.2d 151 (1982); Treadway v. Ebert Motor Company, supra.

The trial court concluded that even if there had been sufficient evidence of Dravo’s negligence to require the submission of that issue to the jury, a nonsuit was nevertheless proper because the decedent had been guilty of contributory negligence as a matter of law. We must respectfully disagree.

A “decedent is presumed to have exercised due care for his safety, and a finding as a matter of law that he was contributorily negligent requires evidence so clear, direct and positive as to preclude any difference in the minds of fair and reasonable men with regard to it.” Skoda v. West Penn Power Co., 411 Pa. 323, 332, 191 A.2d 822, 827 (1963). “ ‘[Contributory negligence may be adjudged as a matter of law only in clear cases where the facts are indisputably fixed and there can be no reasonable doubt as to the inferences properly to be drawn from them .... ’ Sargeant v. Ayers, 358 Pa. 393, 397, 57 A.2d 881, 883 (1948) (citations omitted)____‘if there is any evidence upon the consideration of which reasonable minded individuals might disagree as to whether or not the [decedent] was guilty of negligence which contributed to the accident, then the question of such contributory negligence is for the jury, not for the court, to determine____’ Heffernan v. Rosser, 419 Pa. 550, 555, 215 A.2d 655, 658 (1966) (citations omitted).” Perigo v. Deegan, 288 Pa.Super. 93, 96, 431 A.2d 303, 305 (1981). Accord: Marinetti v. The Montour Railroad Co., 278 Pa.Super. 403, 417, 420 A.2d 603, 610 (1980); Landy v. Romeo, 274 Pa.Super. 75, 77, 417 A.2d 1260, 1261 (1979); Weitz v. Baurkot, 267 Pa.Super. 471, 473-474, 406 A.2d 1138, 1139 (1979); Lavely v. Wolota, supra 253 Pa.Super. at 202, 384 A.2d at 1302; DeGregoris v. Stockwell Rubber Company, Inc., 235 Pa.Super. 71, 74, 340 A.2d 570, 572 (1975).

Appellant’s evidence tended to establish that casual observation from the shore was insufficient to alert an individual to the sharp drop-off into deep water which had been created close to the shoreline. Appellee, on the other hand, contended that the decedent should have been aware of the altered condition of the river bottom because of frequent visits which he had made to Maude’s Landing during the dredging operations. These operations had commenced in the area of the landing on September 30, 1974, but there was no evidence of the date on which the sand bar had .been removed. Whether the decedent, on November 11, 1974, knew or should have known that the sand bar had been removed and that a hidden danger lurked beneath the dark surface of the previously shallow waters of the river was for the jury to determine. See and compare: McNally v. Liebowitz, supra.

Order vacated and case remanded for a new trial.

      . The action was commenced by praecipe for summons and named as defendants both Dravo Corporation and the Borough of Industry. A judgment of non pros was entered in favor of both defendants but subsequently removed as to Dravo Corporation. Thereafter, the Borough of Industry was joined as an additional defendant by Dravo Corporation on grounds that it had been negligent in failing to post signs of warning or barriers to protect citizens against dangers of dredging in the river.

      . The appeal was initially taken from the order refusing to remove the compulsory nonsuit. Thereafter, in apparent reliance upon decisions of panels of this Court holding that an appeal would not lie from an order refusing to remove a compulsory nonsuit, appellant caused a judgment to be entered and filed an amended notice of appeal more than thirty days after the court’s order. In Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982), we clarified this area of the law and held that an appeal is properly taken from the order refusing to remove a compulsory nonsuit. Thus, appellant’s appeal was properly and timely filed. The amended notice of appeal was surplusage.

      . The Water Obstructions Act of June 25, 1913, P.L. 555, as amended, 32 P.S. § 681 et seq. was amended by the Act of May 6, 1937, P.L. 559 to apply to dredging. See: Warren Sand & Gravel Co., Inc. v. Commonwealth, Department of Environmental Resources, 20 Pa.Cmwlth. 186, 195, 341 A.2d 556, 561 (1975). Authority to enter agreements pertaining to dredging was thereby vested in the Water and Power Resources Board. However, the Act of December 3, 1970, P.L. 834, No. 275, § 20, effective January 1, 1971, 71 P.S. § 510-1, abolished the Water and Power Resources Board and transferred its powers and duties to DER. The Water Obstructions Act was repealed by the Act of October 23, 1979, P.L. 204, No. 70, § 27.

      . Current Pennsylvania Code regulations for commercial dredging provide:
      "Dredging shall not occur within a distance of the channel or island shoreline at normal pool less than the depth of the dredging, but in no event, less than 50 feet.” 25 Pa.C. § 105.381(c).