author: BECK, Judge: WIEAND, Judge,

text:
    521 A.2d 459
    Richard C. ASKEW, An Incompetent, by Carol ASKEW, His Guardian, and Carol Askew, Individually, Appellant, v. Darrel J. ZELLER and Ulla Olsson, Commonwealth of Pennsylvania, Department of Transportation and Camp Hill Borough, Appellees.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Feb. 19, 1987.

      Lewis S. Kunkel, Jr., Harrisburg, for appellant.
    P. Daniel Altland, Harrisburg, for Olsson, appellee.
    Sarah S. Smith, Harrisburg, for Dept. of Transp., appellee.
    Virginia W. Hersperger, Carlisle, for Camp Hill, appellee.
    Before WIEAND, BECK, and WATKINS, JJ.
   BECK, Judge:

Richard Askew was driving his motorcycle when he was severely injured. His wife, appellant Carol Askew, as guardian for Richard, now an incompetent, and on her own behalf brought a trespass action against the two drivers involved in the accident, appellees, Darrell J. Zeller and Ulla Olsson. The Askews allege that both drivers were negligent and their negligence was the legal cause of Richard’s injuries. Olsson moved for summary judgment alleging no genuine issue as to any material fact existed and that she was entitled to summary judgment as a matter of law. The court granted Olsson’s motion and the Askews appeal. We affirm.

In reviewing summary judgment, the Court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.

Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983).

The accident occurred at a T-shaped intersection. Olsson was stopped in a long line of traffic traveling west on State Street in the Borough of Camp Hill. Zeller had been traveling east on State Street and was waiting at the intersection to turn left onto Sixteenth Street. The intersection was clear. When Zeller indicated his intention to turn left onto Sixteenth Street, by flashing his directional signal, Olsson signaled him by waving her hand from left to right. She did not look to her right or her rear before making the hand signal. From his car Zeller had a clear view of approaching traffic on Olsson’s right. Askew, like Olsson, was travelling west on State Street and was in the lane to the right of Olsson. He intended to proceed straight through the intersection. Zeller made a smooth, continuous turn in front of Olsson onto Sixteenth Street. Askew proceeded straight through the intersection and struck the side of Zeller’s vehicle. Olsson’s vehicle was not physically involved in the accident.

I.

The Askews contend that Olsson acted negligently by signaling Zeller to turn left without first determining whether another vehicle was about to occupy the lane to her right. They argue that Olsson assumed a duty of care to Askew when she voluntarily and gratuitously signaled to Zeller.

Their argument is premised on Section 324A, subsections (a) and (c) of the Restatement (Second) of Torts (1965), which imposes a duty to act with due care upon an individual performing a gratuitous undertaking:

§ 324 A. Liability to Third Person for Negligent Performance of Undertaking.
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

“It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276 (1922).

The Pennsylvania Supreme Court first considered Section 324A in Cantwell v. Allegheny County, 506 Pa. 35, 483 A.2d 1350 (1984). In Cantwell, the court noted that the essential provisions of this section have been the law in Pennsylvania for many years. The Cantwell court interpreted the scope of Section 324A as follows:

In order to state a cause of action under § 324A, a complaint must contain factual allegations sufficient to establish the legal requirement that the defendant has undertaken “to render services to another which he should recognize as necessary for the protection of a third person”____ This is essentially a requirement of foreseeability.... Thus, even if the defendant has undertaken to render a service to another, and the plaintiff (third person) has suffered physical harm, if there was no reason that the defendant should have foreseen that his actions were necessary for the protection of the plaintiff, no cause of action will lie under § 324A.

506 Pa. at 41, 483 A.2d at 1353-54 (citation omitted).

For decisional support of their position, the Askews cite Farley v. South Eastern Pennsylvania Transportation Authority, 279 Pa.Super. 570, 421 A.2d 346 (1980) (Watkins, J.; Cercone, P.J., and Hoffman, J. concurring in the result). We note that Farley is not binding precedent because it is not the view of a majority of the panel. Trust of Bachman, 338 Pa.Super. 546, 488 A.2d 27 (1985). Unless an issue in a panel decision commands a majority both as to the result and as to rationale, the principle embodied in the issue is not precedential. We, therefore decline to consider Farley.

There are two major views in the United States relating to the liability of a signaling motorist. The first holds that the signal cannot reasonably be interpreted as anything other than a yield of the right of way or a gesture of courtesy, and without more the signaling motorist is not liable as a matter of law. Shank v. Government Employees Ins. Co., 390 So.2d 903 (La.1981); Dix v. Spampinato, 278 Md. 34, 358 A.2d 237 (1976); Van Jura v. Row, 175 Ohio St. 41, 191 N.E.2d 536 (1963); Devine v. Cook, 3 Utah 2d 134, 279 P.2d 1073 (1955); Nolde Bros., Inc. v. Wray, 221 Va. 25, 266 S.E.2d 882 (1980).

The second view holds that it is for a jury to determine the significance reasonably attributable to a motorist’s hand signal. Cunningham v. National Service Industries, 174 Ga.App. 832, 331 S.E.2d 899 (1985); Sweet v. Ringwelski, 362 Mich. 138, 106 N.W.2d 742 (1961); Thelen v. Spilman, 251 Minn. 89, 86 N.W.2d 700 (1957); Miller v. Watkins, 355 S.W.2d 1 (Mo.1962); Riley v. Board of Education, 15 A.D.2d 303, 223 N.Y.S.2d 389 (1962); Armstead v. Holbert, 146 W.Va. 582, 122 S.E.2d 43 (1961).

Both views have been considered in Frey v. Woodard, 565 F.Supp. 386 (E.D.Pa.1983), rev’d, 748 F.2d 173 (3d Cir.1984). The trial court, sitting in Pennsylvania and applying North Carolina law, adopted the view that the signaling motorist was not liable as a matter of law. In that case, the driver signaled pedestrians to cross in front of him. Another vehicle passed the signaling driver and struck the pedestrians. The trial court granted the driver’s motion for summary judgment finding that the hand signal could not reasonably be relied upon for any purpose other than to indicate that the driver was yielding his right of way. 565 F.Supp. at 388. The Third Circuit, however, reversed and held that when reasonable minds could differ regarding the meaning of a hand signal, it was impermissible for the trial court to grant summary judgment. The question was one for the trier of fact. 748 F.2d at 176. We find the Askews’ argument and the Third Circuit’s reasoning in Frey to be persuasive and would hold that where reasonable minds could differ as to the meaning of the signal the question becomes one for the trier of fact.

In order to determine if the signaling motorist’s action was something other than a mere courtesy or a yielding of the right of way, it is necessary for the trier of fact to examine the circumstances surrounding the signaler’s act. The trier of fact must assess factual issues such as the type of signal the motorist made, what reasonable interpretation the other driver could have given the signal, whether the signaler’s act was negligent and whether the signaler’s act was the legal cause of the accident. These are the kinds of inquiries the jury must address. We therefore conclude that the better view is that the evaluation of the signaler’s act is usually a question for the trier of fact. Of course, where the facts are clear and, based on the facts, no inference of negligence may reasonably be drawn, the judge may rule as a matter of law that the signaler is not liable.

II.

However, in the instant case the trial court’s first line of inquiry is causation; i.e. whether the driver’s signal can support an inference that the act of signaling was the legal cause of the victim’s injury. It is only after this inquiry has been addressed that it is proper to address the question of whether the motorist acted negligently in signaling. In this case, the court determined that the facts could not support legal causation and granted summary judgment on that basis. We find that the trial court’s determination was correct.

It is the function of the court to determine the questions of causation in cases in which a jury could not reasonably differ. Restatement (Second) of Torts § 434(l)(c). As Dean Prosser explains:

If the facts bearing upon the issue of causation in fact are not in dispute and reasonable persons could not differ about the application of the legal concept of causation in fact, the court determines that issue. But if reasonable persons might differ, either because relevant facts are in dispute or because application of a legal concept (such as a “substantial factor” formulation) is an evaluative determination as to which reasonable persons might differ, the issue is submitted to the jury with appropriate instructions on the law____

Prosser, The Law of Torts § 45 (5th ed. 1984).

The focus of our inquiry is therefore whether the court was correct in finding as a matter of law that legal causation was not present. Where relevant facts are not in dispute and the remoteness of the causal connection between the negligence of the original actor and the injury is so clear, the issue becomes one of law. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). Summary judgment is proper where facts are undisputed and only one conclusion may reasonably be drawn from them. Gans v. Mundy, 762 F.2d 338 (3d Cir.1985) and Colloi v. Philadelphia Electric Co., 332 Pa.Super. 284, 481 A.2d 616 (1984).

Although the Askews have asserted the existence of a dispute regarding Zeller’s interpretation of Olsson’s signal, nothing in the record supports their assertion. Zeller’s own statements remain uncontradicted.

In his deposition, Zeller clearly and unequivocally stated that he interpreted Olsson’s signal only to mean she would remain stopped and he could proceed in front of her. He maintained that he never relied on Olsson’s signal as an indication that no other traffic was approaching the intersection. Zeller may have acted negligently in making the turn, but the act of turning does not reasonably permit an inference that he relied on Olsson’s signal as a representation that it was safe to make a complete turn. As to Zeller, Olsson’s hand signal had no connection with the accident. Even if we were to conclude, which we do not, that Olsson’s act of signaling was negligent, her act was not in the legally responsible chain of events that caused the accident that injured Askew. Therefore, the trial judge was correct in awarding summary judgment in her favor.

III.

The Askews also rely on the Nanty-Glo rule, Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), to argue that summary judgment is inappropriate. We quote with approval from the disposition of this issue by the trial court:

The Nanty-Glo rule maintains that one is not entitled to a directed verdict if one’s position depends on the uncontra-dicted oral testimony of one’s own witnesses. The other party is entitled to have a jury evaluate the credibility of the witnesses, even if their testimony is not contradicted, and the jury may choose not to believe their testimony. When applied to a motion for summary judgment, the Nanty-Glo rule prevents a court from granting the motion solely on the basis of oral testimony or undocumented affidavits of tlie moving party’s witnesses. Bremmer v. Protected Home Mutual Life Insurance Co., 436 Pa. 494, 260 A.2d 785 (1970).
Plaintiff’s argument would be well-taken if Olsson’s motion depended on her own testimony or the testimony of one of her witnesses. Here, however, Olsson relies on the testimony of Zeller, whose interests in the action are adverse to her own. The uncontradicted deposition testimony of a co-defendant, who is an adverse party and equally liable to the plaintiff, is a sound basis for summary judgment. Reading Company v. United States Fidelity and Guaranty Co., 64 Pa.D. & C.2d 476 (Phila.1973) aff'd per curiam, 228 Pa.Super. 747, 311 A.2d 335 (1973).

Trial court op. at 9-10.

The Askews argue that if no cross complaints are filed between co-defendants, there is no issue between them and the parties. Therefore it is important to note that in Reading Company, the court properly refers to the co-defendants as adverse even though there were no cross complaints filed between them. The Nanty-Glo rule is not applicable in. the instant case.

Order granting summary judgment affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I concur in the result achieved by the majority and join that portion of the majority opinion which holds that Ols-son’s act of signalling to Zeller, as a matter of law, was not the legal cause of Askew’s injury. In light of the majority’s resolution of the causation issue, however, I find it unnecessary to determine whether Olsson owed any duty of care to Askew, who was not the driver of the crossing vehicle to whom the signal was given, and who was operating his motorcycle on the shoulder of the road and passing stopped vehicles on the right. Therefore, I do not join the portion of the majority opinion which seeks to address this issue.

      . Carol and Richard Askew will be referred to as the Askews or appellant.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    521 A.2d 464
    COMMONWEALTH of Pennsylvania v. Anthony L. ERIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 3, 1986.
    Filed Feb. 17, 1987.

      Robert J. Casey, Jr., Philadelphia, for appellant.
    John M. Dawson, District Attorney, Meadville, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, Anthony L. Erie, was convicted by a jury of rape and terroristic threats. After denying post-trial motions, the court sentenced the appellant to concurrent terms of imprisonment of five (5) to ten (10) years on the rape charge and one (1) to two (2) years on the terroristic threats 'charge.

A notice of appeal to the Superior Court was filed, and appellant’s new counsel subsequently filed a motion to remand for a hearing on the issue of ineffective assistance of counsel and supplemental post-trial motions. This court granted appellant’s motion and directed the lower court to conduct an evidentiary hearing. The lower court then denied ‘ appellant’s motion for a new trial, and this appeal followed. After a careful study of the record, we must reverse and remand for a new trial.

On appeal, appellant alleges that trial counsel was ineffective for: (1) failure to preserve the issue of the introduction of evidence for the complainant’s motive to fabricate, i.e. the complainant’s Juvenile Court record and court orders; (2) failure to object to the introduction of a purported tacit admission by appellant at the time of his arrest; (3) failure to call exculpatory -witnesses; (4) stipulation to the testimony of a lab expert regarding evidence of intercourse since it impeached appellant’s credibility; and, (5) failure to object to repeated introduction of good character evidence of the complainant.

The standard for evaluating the effectiveness of counsel is set forth in Commonwealth ex rel. Washington v. Maro-ney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967):

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives wé must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

However, our initial inquiry is whether the issues counsel is charged with not pursuing were of arguable merit. If we conclude that issues were of arguable merit, then and only then do we proceed to inquire whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Hubbard, 472 Pa. 259, 276-79, 372 A.2d 687, 695-96 (1977).

[21 Counsel is presumed to have rendered effective assistance. The burden of proving to the contrary rests with the defendant. Commonwealth v. Murray, 338 Pa.Super. 580, 582, 488 A.2d 45, 46 (1985). “Moreover, the courts of this State have repeatedly said that counsel will not be deemed ineffective in the absence of some showing that the defendant was prejudiced by counsel’s alleged shortcomings.” Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482, 482 A.2d 968, 974 (1984).

We look first to appellant’s allegation that trial counsel was ineffective for failing to preserve the issue of the introduction of evidence for the complainant’s motive to fabricate, i.e. the complainant’s Juvenile Court record and court orders. After a careful study of the record, we agree that the issue is of arguable merit.

The record shows that prior to the commencement of trial, the Commonwealth filed a motion in limine, seeking to prevent reference at trial to the complainant’s juvenile adjudication as a dependent child. The request was granted by the lower court over the objection of appellant’s trial counsel. As a result of the lower court’s decision, appellant was unable to cross-examine the complainant regarding her Juvenile Court record, including her relationship with her boyfriend, Ronald Faulk, or introduce copies of the record or court orders for the jury’s consideration. Appellant’s trial counsel did not raise the issue in his post-trial motions.

The juvenile order in question shows that the complainant was restricted from seeing her boyfriend, Ron Faulk, under certain circumstances and that Juvenile Court had imposed a curfew on her that required her to be home by 11:00 p.m. on Friday and Saturday evenings.

Thus, appellant’s new counsel on appeal contends that, had trial counsel been able to present this evidence to the jury, he could have argued that, because the complainant went across the street after 11:00 p.m. at the invitation of appellant to look for his younger brother, went with appellant to the cemetery and did not return home until 3:00 a.m., she was in jeopardy of possible punishment by the court or her family for curfew violation. He could have further argued that the complainant would not only be interested in fabricating the alleged rape in order to avoid such punishment but also to protect her relationship with Mr. Faulk. Instead, when trial counsel asked appellant at trial if he knew of any reason why the complainant would be lying, appellant was unable to produce an answer:

Q. Sixty-four thousand dollar question, if you know the answer; why would this young lady come in here for a day and a half or a day, tell us that you did all of these things, if you know, sir, is she lying?
A. Yes, I don’t know what to say to the lady, I don’t know.
Q. Can you give this jury one reason why she would lie about this?
A. No, I can’t.
(N.T. November 15, 1984, p. 436).

In addition, during his closing argument to the jury, defense counsel was forced to state:

One problem I am going to have, ladies and gentlemen and I will admit it, yes, I don’t know, I don’t know why, I don’t know why her story does not gibe with Tony’s. I can’t give you motive.
(Closing Argument of Defense Counsel, November 16, 1984, p. 11).

The Commonwealth took advantage of appellant’s handicap when it cross-examined the appellant:

Q. Mr. Erie, yesterday you testified in response to a question by your attorney, he said to you, “Mr. Erie, can you think of any reason why Paula Ramey would say these things, would put herself through this, and testify to what she has in this trial and at the preliminary hearing,” and your answer was, “I can’t say why she would lie,” is that correct?
A. That’s correct.
(N.T. November 16, 1984, p. 524).

In its Opinion, the lower court held that it used good discretion in excluding the complainant’s juvenile file and court orders from the jury’s consideration. The lower court stated that it could find “no reason why the adjudication of dependency or the terms and conditions of this Order were matters for the jury’s consideration in passing upon the factual situation presented to them.” (Opinion, p. 25).

We find that the lower court erred in its determination that the complainant’s juvenile file and court orders should be excluded from the jury’s consideration. In Davis v. Alaska, 415 U.S. 308, 320, 94 S.Ct. 1105, 1111-12, 39 L.Ed.2d 347 (1974), the United States Supreme Court ruled that evidence of a motive to fabricate or bias is admissible at trial despite any interest in protecting the privacy of a juvenile. In Davis, the prosecution witness testified that he had found abandoned stolen property near his home and reported his findings to the police. He then identified the defendant as the man whom he had seen in the vicinity the night before the discovery of the stolen property. Thus, the defendant sought to impeach the witness by introducing evidence of the witness’ juvenile record for burglary and his current probationary status. The defendant argued that, since the stolen property was discovered so close to the witness’ home, the witness himself could be considered a suspect. The defendant further argued that the witness would be interested in falsely identifying the defendant in order to shift attention away from himself. The lower court in Davis excluded evidence of a witness’ juvenile record, relying on a state statute which prohibited admission of such evidence against the juvenile in subsequent proceedings. In holding the lower court’s application of the state statute had violated the defendant’s Sixth Amendment right of confrontation, the Davis Court ruled:

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. “Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965).

Davis v. Alaska, supra, 415 U.S. at 315, 94 S.Ct. at 1110, 39 L.Ed.2d at 353.

Moreover, in Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), this court held in instances where the Rape Shield Law purports to prohibit the admission of evidence which may demonstrate a witness’ bias, interest or prejudice or which properly attacks the witness’ bias, interest or prejudice or which properly attacks the witness’ credibility, the law infringes upon an accused’s right of confrontation under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. In Black, the defendant was charged with statutory rape and various other charges. On appeal, the defendant successfully challenged the lower court’s application of the Pennsylvania Rape Shield Law, 18 Pa.C. S.A. § 3104, which prevented him from introducing at trial evidence of the complainant’s prior sexual conduct with one of her brothers, and was granted a new trial. During the original trial, the complainant testified that the defendant, her father, asked her to come into his bedroom and raped her. The defendant confirmed that he was with his daughter in the room but stated that no sexual assault occurred. The complainant did not report the alleged rape until three months later. At that time, there was an argument between the defendant and one of the complainant’s brothers, following which the brother left home. Evidence presented at trial showed that the complainant wanted her brother back home. Other testimony indicated that, once the defendant was arrested and removed from the house, the complainant’s brother sought to return home. In his defense, the defendant desired to show, but was erroneously restricted from showing, the complainant’s possible bias against him by revealing that the complainant maintained an ongoing consensual sexual relationship with her brother and that the relationship had been terminated by the defendant’s dispute with her brother.

In the case at bar, as in Black, the complainant and the appellant provided the only direct evidence of what actually happened. Thus, credibility was the key factor since the jury’s decision came as the result of whose version they found more believable.

After a careful study of the record, we find a close case. The testimony at trial disclosed the following: At about 11:30 p.m. on June 7, 1984, appellant crossed the street from his home and knocked on the front door of the complainant’s, Paula Ramey’s, home in order to ask her to help him locate his brother, Dennis Erie. Miss Ramey accompanied the appellant across the street to his house where they waited for Dennis in the yard. The complainant was unaware that appellant had been drinking earlier. He continued to drink while they were in the yard. During this time, the complainant testified appellant made undesired advances including attempts to fondle her and throw her to the ground. Miss Ramey further testified that she was frightened and struggled with appellant. During this time, Paula Ramey’s stepmother called her from their home across the street; Dennis Erie passed by them on his way into the house; and, appellant’s father passed them in the yard on his way to the store and told Paula that she should go home since her stepmother had been calling her. The complainant testified that she made no attempt to respond to her stepmother’s call or seek the assistance of appellant’s brother or father. Instead, the complainant testified that she agreed to walk with appellant to a cemetery which was .7 miles from their homes. There is no evidence that the complainant screamed or protested in order to attract attention during their walk.

In the cemetery, appellant and Miss Ramey engaged in vaginal and oral intercourse. Appellant contended that the complainant consented to have intercourse with him. The complainant claimed that their relations were non-consensual and that she screamed at one time in order to protest and to attract attention. A witness at trial, who had been partying near the cemetery during that time, testified that she heard what she believed to be the scream of a woman in pain or fear. The complainant also testified that, at the conclusion of intercourse, the appellant told her that he would kill her if she told anyone what happened. After leaving the cemetery, appellant and the complainant walked home together.

Upon entering her home at approximately 3:00 a.m., Paula Ramey was met by her stepmother who was upset about her absence. Miss Ramey, upset and not wishing to speak with anyone, fled into the bathroom and did not come out until she spoke with her friend, Ron Faulk. She was taken to the hospital by Mr. Faulk and his father. The examining physician, Dr. Luis Gomez, testified that her injuries were consistent with rape but that it was not a clear case situation as the previous rape case that he had handled.

Appellant, on the other hand, testified that Paula Ramey was not crying when they returned but appeared “happy”. He further testified that, when Paula finally gained access to her home (the door was locked), “everybody started raising hell over there.” (N.T. November 15, 1984, pp. 429-430).

In the instant case, appellant was prevented by the lower court from showing the existence of a possible ulterior motive on the part of the complainant, which could have caused her to fabricate the alleged rape. Due to the lower court’s ban with regard to exposure of Paula Ramey’s Juvenile Court record and court orders to the jury, defense counsel was unable to cross-examine the complainant effectively or introduce copies of the record and court orders for the jury’s consideration.

In Davis v. Alaska, supra, 415 U.S. at 316-18, 94 S.Ct. at 1110-11, 39 L.Ed.2d at 353-55, the Supreme Court held that cross-examination is very important in that it is the principal means by which the believability of a witness and the truth of his testimony are tested and that, if a defendant is denied the right of effective cross-examination, the result “ ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed. 314.” Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968).

Based on the facts as presented in the case at bar, we find that defense counsel should have been permitted to expose to the jurors, as the sole trier of facts and credibility, all the facts from which they could appropriately draw inferences relating to the reliability of the complainant, Paula Ramey. This court cannot speculate as to whether the jury, as sole judge of the credibility of a witness in this case, would have accepted defense counsel’s theory of the existence of a possible ulterior motive on the part of the complainant, which could have caused her to fabricate the alleged rape, had defense counsel been permitted to present it fully. But, we do conclude that the jurors were entitled to have the benefit of the defense theory before them in order that they could make an informed judgment as to the weight to place on the complainant’s testimony as opposed to the appellant’s testimony. Based on the limited cross-examination of the complainant that was permitted, the jury might well have thought that defense counsel was engaged in a baseless speculative attack on the credibility of an apparently blameless witness. Davis v. Alaska, supra, 415 U.S. at 319, 94 S.Ct. at 1111, 39 L.Ed.2d at 355.

Therefore, since the complainant’s Juvenile Court record and court orders should not have been excluded from the jury’s consideration at trial under Davis and Black, we find that defense counsel was ineffective for failing to raise this matter in post-trial motions. Although defense counsel did raise the issue at pre-trial, during argument on the Commonwealth’s motion in limine, he neglected to raise the issue again in post-trial motions, causing the issue to be waived. When questioned at the evidentiary hearing on December 10, 1985, defense counsel stated that his failure to preserve the issue in post-trial motions was an “oversight”. (N.T. December 10, 1985, p. 70).

Moreover, since appellant was denied the right of effective cross-examination, the result is a constitutional error of “the first magnitude and no amount of showing of want of prejudice could cure it.” Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 354. Thus, we find defense counsel clearly ineffective for not pursuing such a serious matter by preserving the issue for appeal by raising it in post-trial motions.

In view of our disposition of this issue, we do not need to address the remaining questions of ineffectiveness of counsel raised in this appeal.

Accordingly, the judgment of sentence of the Court of Common Pleas is vacated, and the case is remanded for a new trial.

Jurisdiction is relinquished.


author: OLSZEWSKI, Judge:

text:
    521 A.2d 469
    Ernest JACKSON and Helen Jackson, His Wife, Appellants, v. SUN OIL COMPANY OF PENNSYLVANIA, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1986.
    Filed Feb. 24, 1987.

      Michael F. Wenke, Media, for appellants.
    Stephen J. Sundheim, Philadelphia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the grant of summary judgment in favor of appellee, Sun Oil Company of Pennsylvania (“Sun”), and against appellants, Ernest and Helen Jackson. The Jacksons brought this suit based upon the tort of intentional infliction of emotional distress. Finding no basis for such a claim, we affirm the order of the trial court.

Initially, we note the standard of review to be applied.
When reviewing the grant of summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. In order to uphold a grant of summary judgment, the record must demonstrate both an absence of genuine issues of material fact and an entitlement to judgment as a matter of law.

Chicarella v. Passant, 343 Pa.Super. 330, 340, 494 A.2d 1109, 1114 (1985). Accepting as true all appellants’ well-pleaded facts, the following is a summary of the events giving rise to this action.

Mr. Jackson had been employed by Sun as a burner service mechanic for some time. In that position, Jackson would travel to the homes and businesses of Sun’s customers and inspect or repair their heating equipment.

On September 19, 1979, Jackson was assigned to inspect and repair a furnace at the home of Mr. and Mrs. Miersky. Shortly after completing this work assignment, Jackson was summoned to the office of Sun’s service manager, A1 Kuntz, who told him that the Mierskys’ daughter had accused Jackson of making sexually suggestive comments and advances. Kuntz also told Jackson that pending an investigation by Sun, Jackson would not be permitted to make service calls. Rather, he would be assigned to work inside the terminal. Jackson denied the allegations.

Upon Sun’s request, Jackson took and passed a lie detector test on October 12, 1979. It is undisputed that, at that time, he was told of the test results. Following this test, Sun permitted Jackson to resume his normal duties servicing heating equipment.

In December of 1984, Jackson had a chance meeting with Mr. Kuntz during which time Kuntz stated to Jackson, and in the presence of others, that Ms. Miersky was lying. Jackson filed a claim for intentional infliction of emotional distress based upon: (1) Sun’s alleged failure to tell Jackson’s co-workers that he had passed the lie detector test and (2) Sun’s failure to tell Jackson and his co-workers that Ms. Miersky had recanted her allegations. The trial court granted Sun’s motion for summary judgment, holding that the law imposed no such obligations on Sun.

The essence of appellants’ claim is that Sun failed to remove the taint of the incident from the mind of Mr. Jackson and the minds of his co-workers. In effect, appellants seek relief pursuant to Section 46 of the Restatement (Second) of Torts because Sun “intentionally” failed to clear Jackson’s name. Section 46 defines such a claim as follows:

Sec. 46. Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Restatement (Second) of Torts, Sec. 46 (1965). Liability is not recognized pursuant to Section 46 absent proof that the defendant’s intentional or reckless act caused the plaintiff’s emotional distress. “The requisite ‘intention’ which one must display for liability to be imposed under the tort of outrage is ‘knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct.’ ” Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 381, 492 A.2d 1382, 1385-1386 (1985), quoting Forster v. Manchester, 410 Pa. 192, 199, 189 A.2d 147, 151 (1963) (emphasis in original). There is no liability pursuant to Section 46 for the mere negligent infliction of emotional distress. Pierce v. Penman, 357 Pa.Super. 225, 231-232, 515 A.2d 948, 951 (1986).

There is no cognizable claim under Section 46 where the failure to act, i.e., negligence of a party, forms the basis of the claim. Contrary to appellants’ assertions, the law imposes no burden on Sun to make public the results of the investigation. Indeed, if Sun had published this information to Jackson’s co-workers, Sun may have been exposed to a different type of tortious liaiblity.

Further, there is no indication here that Sun intended to cause distress to Jackson or knew with substantial certainty that such a result would occur. The only evidence of record which sheds light on Sun’s intentions is the undisputed fact that after Jackson passed the polygraph test, Sun considered him innocent and authorized Jackson to resume his normal duties.

The claim based upon the alleged recantation by Ms. Miersky must also fail. Under these circumstances, there is no basis for a claim based upon Sun’s alleged failure to tell Jackson of her recantation.

This claim also fails, however, for an additional reason. There is simply no evidence of record that Ms. Miersky did, in fact, recant her story. Appellant’s argument in this regard is based upon the statement of Jack Kettrick, an individual who was present at the chance meeting in 1984 between Kuntz and Jackson and Kuntz’s statement to Jackson. In his affidavit, Mr. Kettrick recalls that Kuntz stated: “we found out the girl was lying.” (R. 87a). This statement does not even imply that Ms. Miersky confessed to Kuntz and recanted her allegations. Kuntz avers that he did not speak to or see Ms. Miersky after the initial encounter and appellants do not dispute Kuntz’s averments that the Miersky’s prohibited him from speaking with their daughter after Jackson passed the polygraph test.

We also reject appellants’ inference that Kuntz’s statement gave rise to an alleged recantation. Kuntz testified at his deposition that in 1984 he told Jackson, “Ernie, when you passed that lie detector test and we found out the girl was lying, we gave you a clean bill of health and never held it against you ever.” (Deposition of Jackson, 88). Kuntz never stated that Ms. Miersky recanted her story and appellants present no evidence which puts this contention into dispute. Appellants cannot oppose a motion for summary judgment by argument alone. Because they have presented no evidence indicating that the recantation, in fact, took place and that Sun was aware of the recantation, we must conclude that appellants’ claim is without basis.

Order affirmed.

      . In their complaint as well as throughout their arguments, appellants have based this action on Sun’s alleged failure to clear his name. The pertinent averments provide as follows:

        13. In or about December, 1984, Plaintiff-Husband discovered that Mr. A1 Kuntz, who had made him an object of ridicule by having him do the janitorial work in the office, had personal knowledge that the accusing woman, Rene Miersky, was confronted with Plaintiff-Husband having passed a lie detector test and confessed that he was wrongly accused.
      14. The Defendant, through its employees and agent, expecially Mr. A1 Kuntz, knew this prior to Plaintiff being returned to his job as a service technician but never attempted to rectify the outrageous conduct so as to restore Plaintiff-Husband's status and character.

      19. As a direct and proximate result of defendant’s outrageous and despicable conduct, including, but not limited to, their failure to inform Plaintiffs and Plaintiff-Husband’s fellow Sun Oil Company of Pennsylvania employees that Plaintiff-Husband had passed a lie detector test regarding Ms. Miersky’s accusations and/or that Ms. Miersky had recanted said accusations, Plaintiff-Husband has suffered severe emotional distress and has incurred unnecessary expenses and debts.

        k k * *
      26. Defendant’s extreme and outrageous conduct, as is more specifically set forth above, was done with intent to inflict severe emotional distress upon Plaintiff-Husband or with knowledge that such severe emotional distress was certain, or substantially certain, to result from such extreme and outrageous conduct, or with reckless and deliberate disregard of a high degree of probability that severe emotional distress would follow.
      Complaint at 4, 5, 7 (emphasis added). We note that Sun’s conduct regarding the investigation of the allegations and its decision to remove Jackson from his normal duties pending the results of the investigation are not in question here. Jackson agrees that Sun acted properly in placing him inside the terminal pending the outcome of the investigation. (Deposition of Jackson, 49-50). Jackson also admitted that he had no complaints regarding Sun’s methods of conducting the investigation and no complaint arising from Sun’s request that he submit to a polygraph examination. (Deposition of Jackson, 68).


author: DEL SOLE, Judge:

text:
    521 A.2d 472
    COMMONWEALTH of Pennsylvania v. Michael J. McANDREW, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1986.
    Filed Feb. 25, 1987.

      George F. Schoener, Jr., Philadelphia, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.
    Before McEWEN, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

An order granting a Commonwealth petition for temporary assignment of a District Justice, pursuant to Pa.R. Crim.P. 23(d) is being questioned in this appeal.

From the record we can discern the following facts. On March 27, 1986, Appellant was charged with the murder of his wife. A preliminary hearing was held before District Justice M. William Peterson on April 8, 1986. Following the presentation of testimony and argument District Justice Peterson held that the Commonwealth failed to establish a prima facie case and ruled that Appellant be discharged. The Commonwealth filed a Petition for Temporary Assignment of a District Justice on April 14, 1986. The Petition alleged that District Justice Peterson was “unable to comprehend the complex factual ... and legal issues” presented at the preliminary hearing and that he “had a predisposition to dismiss the charges” which necessitated a temporary assignment of a different issuing authority to insure a fair and impartial proceeding. Notice of the Petition was given to Appellant and he responded with an Answer and Memorandum of Law. Thereafter, the court scheduled a “hearing" on the petition for April 25, 1986.

At the time for the appointed “hearing”, there were no witnesses sworn, no testimony taken and no evidence introduced. The court did hear the arguments of counsel and did review the transcript of the preliminary hearing before granting the relief requested by the Commonwealth. In its Opinion the court gave the following reasons for its ruling:

Inasmuch as the Commonwealth has presented evidence establishing District Justice M. William Peterson’s predisposition, his lack of understanding of the relevant law and his intent to recuse himself if reassigned to the case, the temporary appointment was properly granted to insure fair and impartial proceedings and the efficient administration of justice.

Appellant filed the instant appeal alleging that there was no evidence presented to support the court’s finding. We agree, and accordingly, reverse the order of court which granted the Commonwealth’s Petition.

Pa.R.Crim.P., Rule 23(d) is applicable in this case and it provides:

A motion may be filed requesting a temporary assignment under paragraph (b) on the ground that the assignment is needed to insure fair and impartial proceedings. Reasonable notice and opportunity to respond shall be provided by the parties.

As recounted in the facts, the Commonwealth filed a petition requesting a temporary assignment under Rule 23, notice of the petition was given to Appellant who had an opportunity to respond, an a “hearing” date was set. However, the “hearing” was really no hearing at all. No witnesses were sworn and there was no testimony upon which the court could base its finding of predisposition, misunderstanding and intent to recuse on the part of District Justice Peterson.

By its Brief the Commonwealth argues that Rule 23 does not require a hearing and alternatively that the argument presented by counsel before the court constituted a hearing.

We agree with the Commonwealth that Rule 23 may not require a hearing in every instance where a motion requesting a temporary assignment is filed. The Comment to Rule 23 states:

The motion procedure of paragraph (d) is intended only to apply when a party requests temporary assignment to insure fair and impartial proceedings. The president judge may, of course, order a response and schedule a hearing with regard to such a motion.

In Mun. Pub. v. Court of Common Pleas et al., 507 Pa. 194, 489 A.2d 1286 (1985), the Supreme Court was considering a recusal motion and noted that “where, fabricated, frivolous or scurrilous charges are raised against the presiding judge during the course of the proceedings, the court may summarily dismiss those objections without hearing where the judge is satisfied that the complaint is wholly without foundation”. Id., 507 Pa. at 202, 489 A.2d at 1290.

We believe this reasoning is applicable to Rule 23 and contemplated by the Comment to that Rule. Accordingly, a petition may be summarily dismissed without a hearing where the petition is wholly without foundation. Where, however, the judge finds arguable merit in the petition sufficient to conclude that the allegations justify an evidentiary hearing, then such a hearing must be held and thereafter, the court will be able to rule, based on the evidence presented, whether a temporary assignment is needed to insure fair and impartial proceedings.

In the instant case the Commonwealth’s motion was granted solely on the basis of the petition. No testimony was elicited to support the petition. It is abhorrent that a District Justice could be removed from his position and another assigned in his place based on mere allegations. The situation herein may be likened to that where a party seeks to have a judge recused. When a party asserts that a judge should be disqualified, he or she bears the burden of producing evidence establishing bias, prejudice or unfairness necessitating the recusal, and failure to adduce competent evidence will result in a denial of the recusal motion. Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585 (1982). If without cause shown a judge could be removed at the whim of the Commonwealth, based solely on allegations contained in the petition, the purpose of an independent judiciary would be frustrated.

The Commonwealth also submits that a “hearing” was indeed held in this case since argument was heard on the issue. We cannot subscribe to such a definition of the term hearing. As we have stated, some evidence in support of the Commonwealth’s allegations must be received by the judge in order for the judge to make a finding that the appointment of a temporary district justice is proper to insure a fair and impartial proceeding. The term hearing is defined in Black’s Law Dictionary as:

Proceeding of relative formality (though generally less formal than a trial), generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and parties proceeded against have right to be heard, and is much the same as a trial and may terminate in final order.

H. BLACK’S LAW DICTIONARY 649 (5th ed. 1979).

In the instant case, no hearing was held and therefore there is present in the record no evidence to support the court’s ruling. For this reason, we must reverse the order granting the Commonwealth’s petition for the temporary assignment of a District Justice.

Order reversed.


text:
    521 A.2d 474
    Robert E.J. CURRAN, Esquire, Executor of the Estate of Victor S. Panaccion, Appellant, v. Herman P. EBERHARTER, Appellee. Robert E.J. CURRAN, Esquire, Executor of the Estate of Victor S. Panaccion, Appellee, v. Herman P. EBERHARTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1986.
    Filed Feb. 6, 1987.

      Garland D. Cherry, Sr., Media, for appellant in No. 1086 and for appellee in No. 1112.
    Edward C. Mengel, Jr., Philadelphia, for appellant in No. 1112 and for appellee in No. 1086.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is a cross appeal from the grant of defendant Herman P. Eberharter’s (“Eberharter”) motion for judgment n.o.v. Finding no error in the trial court’s ruling, we affirm the judgment.

Background

Upon review of the grant of a motion for judgment n.o.v., all of the evidence, and all reasonable inferences therefrom, must be viewed in a light most favorable to the verdict winner. Northwest Savings Assoc. v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986). Using this standard, the evidence adduced at trial can be summarized as follows.

The cause of action against Eberharter for breach of an escrow agreement dates from January of 1974, when Panac-cion entered into an agreement for the sale of his lumber business with Herman F. Yerger (“Yerger”), a nonparty in the present suit. A new corporation, Clifco Millwork and Lumber Co. (“Clifco”), was formed and designated in the sales agreement as the actual buyer. After Panaccion signed the agreement of sale, he met with an attorney from the law firm of Stradley, Ronon, Stevens & Young (“Strad-ley”). The attorney advised Panaccion that the terms of the agreement of sale were not in Panaccion’s best interests. In an effort to improve Panaccion’s lot, another attorney from Stradley, defendant Eberharter, was brought in to renegotiate an agreement that was more favorable to Panaccion.

The closing took place on February 18, 1974, at which time Panaccion received a down payment of $100,000.00. The balance of the total sale price of $661,886.40 was to be paid during the course of eleven years. At the time of the closing the parties discussed the terms of an escrow agreement that was required pursuant to the terms of the agreement of sale. It was agreed that Eberharter would prepare the escrow agreement and act as escrow agent. Eberharter subsequently drafted an escrow agreement and forwarded it to the attorney for Clifco and Yerger. That agreement provided, in part, as follows:

ESCROW AGREEMENT

Escrow Agreement dated as of February 18, 1974, by and among Victor S. Panaccion (“Seller”), Clifco Millwork and Lumber, Inc. (“Buyer”), Herman F. Yerger and Edward D. Sullivan, shareholders of Buyer (“Shareholders”) and Herman P. Eberharter of Stradley, Ronon, Stevens & Young (“Escrow Agent”).

WITNESSETH:

1. Pursuant to an Agreement dated December 27, 1973, as amended, between Buyer and Seller (the “Agreement”), shareholders have delivered to Escrow Agent certificate No. 1 for 800 shares and certificate No. 2 for 200 shares representing all of the 1,000 outstanding common shares of Buyer, for the purpose of securing payment of the purchase price of certain assets purchased by Buyer from Seller pursuant to the Agreement.
2. Escrow Agent shall retain said shares until such time as the obligations of Buyer under the agreement have been satisfied in full and, specifically, shall release said shares only upon written direction to do so signed by Buyer and Seller, or Seller’s personal representative if Seller be then deceased.
3. In the event of any dispute as to whether Buyer’s obligations under the Agreement have been satisfied, Escrow Agent shall be authorized in his discretion to apply to any court of competent jurisdiction for instructions, and to abide by the decision of such court. The costs of any such action shall be the responsiblity of Buyer, Seller and Shareholders or such of them as the court may direct.
4. The Shareholders shall be entitled to vote the escrowed shares registered in their respective names during the term of this Escrow Agreement.
5. It is expressly agreed that if additional shares of stock of Buyer are issued during the term of this Escrow Agreement, with or without consideration, or whether by way of recapitalization, stock dividend, merger or reorganization of any kind, such additional shares shall be delivered to Escrow Agent to be held by him subject to the terms of this Escrow Agreement.
6. Escrow Agent may resign at any time by appointment as successor Escrow Agent any partner of Stradley, Ronon, Stevens & Young, or such other person as Buyer, Seller and Shareholders may approve.
7. Escrow Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by him in reliance upon affidavit, statement, certificate, request, consent, agreement or other instrument whatsoever, not only as to its due execution and validity and the effectiveness of its provisions, but also as to the truth and accuracy of any information therein contained, which Escrow Agent in good faith believes to be genuine and to have been signed or presented by a proper person or persons duly authorized. Escrow Agent may perform any of his duties hereunder by or through agents or employees and he shall not be answerable or acountable for any act, default, neglect or misconduct of any such agent or employee, provided that reasonable care has been exercised in the selection and in the continued employment of any such agent or employee; nor shall he be otherwise answerable or accountable in any circumstances whatsoever except for the safekeeping of the certificates deposited hereunder and for gross negligence or bad faith. He may consult with counsel relating to his duties or responsibilities hereunder and shall not be liable for any act taken, suffered or omitted by him in good faith on advice of such counsel.
8. This Escrow Agreement may be executed in several counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties have signed or caused this Escrow Agreement to be signed as of the day and year first written.
CLIFCO MILLWORK & LUMBER, INC.
Attest: Buyer
By:_President
Herman F. Yerger
Witness:
Victor S. Panaccion, Seller
Herman F. Yerger, Shareholder
Edward D. Sullivan, Shareholder
Herman P. Eberharter, Escrow Agent

Panaccion executed the agreement and returned it to Eberhart. Thereafter, the attorney for Clifco proposed to amend paragraph 5 of the escrow agreement to provide as follows:

5. It is expressly agreed that if additional shares of stock of Buyer are issued during the term of this Escrow Agreement, or if during the term of this Escrow Agreement any or all of the shares of stock of Buyer initially issued ate re-issued, either in the same or in varying amounts to the original stockholders or to others, with or without-consideration, or whether by way of recapitalization, stock dividend, merger or reorganization of any kind, such additional or substituted shares, as the case may be, shall be delivered to the Escrow Agent, to be held by him subject to the terms of this Escrow Agreement.

In a letter to Panaccion dated March 15, 1974, Eberharter stated that both he and another Stradley attorney believed the amendment had “no legal effect whatsoever” and was proposed by the buyer “to satisfy Mr. Yerger’s whim.” (R. 272a). Panaccion signed the amendment and returned it to Eberharter.

Pursuant to the terms of the agreement, all of the issued and outstanding shares of Clifco stock would be held in escrow. There were 1,000 issued and outstanding shares of Clifco, 800 shares in the name of Yerger, which was represented by certificate No. 1, and 200 shares in the name of Edward D. Sullivan, which was represented by certificate No. 2. Ebérharter took custody of these stock certificates.

In October of 1974, Eberharter learned from Clifco’s attorney that Yerger had transferred ownership of his Clifco shares to Emblem-Flag Company (“Emblem”), another entity which he controlled. Upon receiving a written confirmation of the request to transfer the ownership in the Clifco shares from Yerger’s attorney, Eberharter released certificate No. 1 from escrow and substituted certificate No. 3 which identified Emblem as the owner of the Clifco stock. In September of 1975, the other Clifco shareholder, Edward D. Sullivan, died and pursuant to a buy-back agreement between Clifco and this shareholder, Clifco was required to purchase his shares. Eberharter learned that Emblem had decided to acquire the remaining shares of Clifco so that it would become the 100% owner of Clifco. Eberharter agreed to the transfer and on November 18, 1975, he substituted certificate No. 4 in the name of Emblem for certificate No. 2 that was issued in Sullivan’s name. Panac-cion was not notified of the two exchanges of the certificates.

The escrow agreement permitted the owners of the Clifco shares to vote the share without the approval of Panaccion. In February of 1976, Emblem passed a shareholder resolution permitting the directors of Clifco to sell the real estate to the Great A & P Tea Co. (“A & P”) for $243,000.00.

In June of 1977, Panaccion learned that the assets of the lumber business in which he had a secured interest had been dissipated. On October 8, 1980, Panaccion filed suit against Eberharter claiming the latter breached his duties under the escrow agreement in the following ways: by failing to take steps to notify him of the transfer of the escrowed stock; by failing to get his approval for the transfer; and by failing to insist on the compliance of the escrow agreement.

The jury returned a verdict in Panaccion’s favor and against Eberharter in the amount of $548,000.00. The trial court granted Eberharter’s motion for judgment n.o.v., finding that there was no evidence on the record supporting Panaccion’s claim that Eberharter acted in breach of the escrow agreement. In so ruling, the trial court reversed its earlier interpretation of the escrow agreement. During trial, the court determined that pursuant to paragraph 2 of the escrow agreement, Eberharter was required to obtain Panaccion’s written approval before releasing the stock certificates. The court reasoned that the same restriction applied to paragraph 5, which governed when the stock was reissued. In instructing the jury, the court stated that, as a matter of law, Eberharter violated the escrow agreement by releasing the certificates without first obtaining Panaccion’s approval but that the question of whether the breach was the cause of the loss was for the jury’s determination. The court reversed itself when, on review of the post-trial motions, it ruled that paragraph 5 did not impose a duty on the escrow agent to secure Panaccion’s approval before exchanging the certificates. In short, the court found there was no evidence on the record indicating that Eberharter had failed to perform his duties under the escrow agreement.

Panaccion’s Appeal

In contesting the grant of the judgment n.o.v., Panaccion claims that Eberharter was not authorized to release the escrowed shares without Panaccion’s approval under paragraph 5 of either the original escrow agreement or the amended agreement. The resolution of this claim requires us to interpret the language of the escrow agreement.

The parties agreed at trial that the construction of a writing, such as the escrow agreement, is a question of law subject to the determination of the court. Upon review of a question of. law, this Court need not defer to the finding of the trial court. Erie Insurance Exchange v. Transamerica Insurance Co., 352 Pa.Super. 78, 507 A.2d 389 (1986). In making our determination, we are guided by general principles of contract law as well as by specific rules which govern when an escrow agreement is implicated.

When a written agreement is questioned, the intent of the parties is ascertained by that writing and where the words are clear and unambiguous, the language of the agreement is determinative. See e.g. Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982). An agreement must, however, be interpreted as a whole and effect given to all of its provisions. Central Dauphin School District v. American Casualty Co., 493 Pa. 254, 258, 426 A.2d 94, 96 (1981). Of particular importance here is the rule that an escrow agent is bound to follow the terms of the escrow agreement. Paul v. Kennedy, 376 Pa. 312, 315, 102 A.2d 158, 159 (1954); Mursor Builders, Inc. v. Roddy Realty, Inc., 459 F.Supp. 1317, 1322 (M.D.Pa.1978). Further, the powers of an escrow agent are limited to those enumerated in the escrow agreement. In re Dolly Madison Industries, Inc., 351 F.Supp. 1038, 1042 (E.D.Pa.1972). See generally Angelcyk v. Angelcyk, 367 Pa. 381, 80 A.2d 753 (1951).

The question here is whether the escrow agent acted outside of his grant of authority. We agree with both the reasoning and conclusion of the trial court that there is no evidence on the record supporting a claim that Eberharter breached his duties under the escrow agreement.

After carefully reviewing the escrow agreement, particularly paragraph 5, we find no language that obligated Eberharter to first notify Panaccion and to obtain his approval before transferring the certificates. To the contrary, the agreement expressly contemplates the transaction that occurred here, e.g., the reissuance of the original shares. The only limitation in this regard is the requirement that the reissued shares (called “substituted” shares in the language of the agreement) be held by the escrow agent and subject to all the terms of the escrow agreement. As the trial court found, there are no facts of record indicating that this was not done. At all times, the escrow agent held all of the issued and outstanding shares of stock and retained control over those shares.

We believe that such an interpretation of the escrow agreement is both reasonable and consistent with the spirit of the agreement. Because the shares always remained in the escrow agent’s control, the purpose of the agreement— securing the unpaid obligation — was respected. If we were to accept Panaccion’s argument that his prior authorization was necessary, paragraph 5 of the escrow agreement would be meaningless; no stock could be reissued — even upon the death of a shareholder — without first obtaining Panaccion’s prior approval. In short, Panaccion’s interpretation of the escrow agreement is overly restrictive and'inconsistent with the language of the agreement.

Panaccion argues, however, that this conclusion is unwarranted because the provision of the escrow agreement upon which the trial court relied, paragraph 5, as amended, is inapplicable. Panaccion asserts that the amendment to paragraph 5 changed the legal effect of the original provision, but that Eberharter told him that the amendment had no legal effect. According to Panaccion, Eberharter is estopped from relying on the amended version of the escrow agreement.

In our opinion, the circumstances here do not trigger the invocation of the estoppel doctrine. “Equitable estoppel arises when a party by acts or representation intentionally or through culpable negligence, induces another to believe that certain facts exist and the other justifiably relies and acts upon such belief, so that the latter will be prejudiced if the former is permitted to deny the existence of such facts.” Straup v. Times Herald, 283 Pa.Super. 58, 71, 423 A.2d 713, 714 (1980). In short, the doctrine is one of fairness; it prevents a party from taking a position that is inconsistent to a position previously taken and, thus, disadvantageous to the other party. Commonwealth ex. rel Gonzalez v. Andreas, 245 Pa.Super. 307, 311-312, 369 A.2d 416, 418 (1976).

In view of these principles, we conclude that Panaccion’s argument is misdirected. There is no evidence on the record that Eberharter’s construction of amended paragraph 5 was inconsistent with his interpretation of the original version of paragraph 5. Eberharter has never maintained that Panaccion’s approval was required prior to the exchange of the certificates. In our view, the “inconsistency” of which Panaccion speaks arose not out of Eber-harter’s word, act, or silence, but out of a determination made in hindsight that the final version of the escrow agreement did not express his wishes.

In addition, there is no indication on the record that Eberharter induced Panaccion to believe that certain facts existed which Eberharter now attempts to deny. “An ‘inducement’ sufficient to create an estoppel may consist of words or conduct that intentionally or negligently causes another to believe that a promise has been made or that a particular state of facts exists.” Havas v. Temple University of the Commonwealth System of Higher Education, 357 Pa.Super. 353, 356, 516 A.2d 17, 19 (1986). There is no evidence that Eberharter, in advising Panaccion to accept the amendment, made a promise for a future performance. Nor can Eberharter’s representation be construed as an expression of fact which was sufficient to induce reliance. See Northcraft v. Edward C. Michener Assoc., 319 Pa.Super. 432, 466 A.2d 620 (1983) (ambiguous statements made in writing were insufficient to establish estoppel). Compare Straup, 283 Pa.Super. 58, 423 A.2d 713 (1980) (statements, acts and silence by newspaper clearly demonstrated that a contract existed by estoppel). At most, Eberharter’s statement that the amendment had “no legal effect” was a legal opinion as to the implications of that provision.

Based upon Ebherharter’s opinion regarding the amendment, Panaccion could not have been deceived into thinking that his approval was necessary before any action whatsoever was taken with the certificates. Such an interpretation conflicts with the language of both the amended agreement and the original provision. In any event, there is no evidence that Panaccion ever received any assurances that his approval was necessary pursuant to the escrow agreement. In essence, Panaccion faults Eberharter either for failing to grasp the legal significance of the amendment or for failing to explain the implications of the amendment. Such allegations would more properly impose liability on Eberharter for negligence under a claim brought in trespass, not in assumpsit. No such claim of malpractice was brought against Eberharter.

Having determined that there is no basis for estoppel, we conclude that Eberharter’s performance as escrow agent must be evaluated pursuant to the terms of the final agreement. As we interpret that agreement, the issuance or reissuance of the Clifco stock was permissible and Eber-harter was not required to obtain Panaccion’s prior written approval before substituting the certificates. The only limitation on Eberharter’s authority was the requirement in paragraph 5 that the stock shares remain in the control of the escrow agent and subject to the provisions of that agreement. There is no evidence that this was not done. Accordingly, there was no material fact at issue to be submitted to the jury regarding Panaccion’s claims that Eberharter breached the escrow agreement. Thus, the trial court properly entered judgment in Eberharter’s favor.

In a cross appeal by Eberharter, he questions whether this cause of action is actually one for malpractice and, thus, time-barred pursuant to the two year statute of limitations on such actions. Our determination of this case has made it unnecessary to address the statute of limitations issue.

Order affirmed.

      . Panaccion also brought suit against Yerger. That action is not before this Court.

      . A cause of action for legal malpractice was brought against Stradley. After the jury returned a verdict in favor of Panaccion, the court granted a partial judgment n.o.v. in Stradley’s favor and reduced the award of damages. The cross appeal of Panaccion and Stradley is addressed in a separate opinion by this Court.

      . Eberharter was successful in obtaining several modifications to the agreement of sale, most noteably the addition of a security agreement giving Panaccion a secured interest in the assets of the lumber business. There is no claim against Eberharter in regard to the security agreement.

      . Yerger owned 75% of the stock of Emblem and his wife owned the remaining shares. The transfer of ownership to Emblem had actually occurred in April of 1974, and was apparently accomplished for tax purposes.

      . In January of 1976, Yerger transferred his 75% ownership interest in Emblem to the other Emblem shareholder, his wife.

      . Panaccion asserts the estoppel theory in order to avoid an unfavorable construction of the agreement. We note, however, that Panaccion did not attempt to void the agreement on grounds of fraud or the like. We note also that the amended agreement is the final contract between the parties and was in effect when the acts which gave rise to thi's dispute occurred. For these reasons, the amended version should be given effect.

      . Panaccion refers us to the testimony of Eberharter regarding his interpretation of the escrow agreement:
      Q. Mr. Eberharter, do you agree that this Escrow arrangement would have prevented the sale of the corporation to people that Panaccion did not have confidence in?
      A. Yes. You could have used it to prevent that.
      (N.T. 135, R. 39a). For two reasons, Eberharter’s statement is not inconsistent with his interpretation of the escrow agreement. First, it is evident that his answer was in response to a hypothetical question. Second, this response cannot be taken out of context. On cross examination Eberharter’s testimony as to this matter was as follows:
      Q. Mrs. Eberharter, do you agree that this Escrow Arrangement would have prevented the sale of the corporation to people that Panaccion did not have confidence in?
      A. Yes. You could have used it to prevent that.
      ******
      THE WITNESS: It would have prevented the sale of shares of the corporation.
      BY MR. CHERRY:
      Q. In January of 1976, who controlled Clifco Millwork and Lumber? Who controlled C.M.L., do you know?
      A. In January of '76?
      Q. Yes.
      A. Well, we had the shares in escrow.
      Q. My question was: who controlled the corporation?
      ******
      A. Well, Emblem Flag owned—
      Q. —who was supposed to pay Mr. Panaccion?
      A. Emblem Flag Company owned its shares.
      Q. Well, who owned Emblem Flag?
      A. Yerger.
      ******
      Q. On January 4th of 1976, Herman Yerger was not the owner and had no interest in Emblem; were you aware of that?
      A. No.

        Q. Well, according to you the Escrow Agreement would have prevented the sale of the corporation to people that Mr. Panaccion didn’t have confidence in?
      A. Yes, if I’d known about it.
      Q. Well, how were you going to know about if under the Escrow Agreement he could switch shares.?
      ******
      BY MR. CHERRY:
      Q. Mr. Eberharter, you had no control over a transfer of the Emblem shares, did you?
      A: It didn’t make any difference, because I had control over the Clifco shares. I could take Clifco away from Emblem Flag, I could have taken it away from anybody.
      ******
      A. I don’t know how to answer that other than the way I answered it. I had control of the Clifco shares. If I had been advised of anything — any impairment of the payment or anything wrong, or any suspicion that Mr. Panaccion had, I could have looked into it, and if there had been violations of any of the agreements I could have taken Clifco away from whoever owned it.
      Q. Was it a violation of the agreement when Mr. Yerger gave his shares to his wife on January 4th of 1976?
      A. What agreement?
      Q. Of any agreement? Was it a violation of any agreement? Would that have triggered any right on your part as an Escrow Agent?
      A. It depends upon what the circumstances of giving them to his wife were. I would not think so, as long as they were still married.
      (N.T. 135-139).
      When asked to explain the language of amended paragraph 5, Eberharter testified as follows:
      A. (The amendment to paragraph 5) broadened and strengthened the escrow agreement because it specified another thing which I believe was encompassed within the original language anyway, but it did make it specific, and if at the time I agreed to this I was imagining what might have happened it would have been pure speculation as to what, you know, particular type of substitution might happen in the future, just like I would be speculating on whether there was ever going to be a merger or recapitalization.
      Q. Did you ever discuss the provisions of paragraph 5, the amended paragraph 5, with Mr. Panaccion?
      A. I don't have a specific recollection. I believe I — I just don’t — I did send it to him to be signed of course.
      Q. Well, when you sent it to him to be signed did you explain to him or talk to him by phone and say that this language makes it clear that they can sustitute shares for No. 1 and No. 2? A. I have a recollection I may have remarked that I didn’t think it made any legal difference in the obligations. Now, whether I make that remark to (Clifco’s attorney) or what, I just don’t recall.
      (N.T. 100). There is no evidence of record that Eberharter ever told Panaccion that his approval was necessary prior to the transfer of the certificates.


author: CIRILLO, President Judge: KELLY, Judge,

text:
    521 A.2d 936
    Beverly K. THOMPSON v. ROYAL INSURANCE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Dec. 18, 1986.
    Reargument Denied March 6, 1987.

      Andrew Siegeltuch, Philadelphia, for appellant.
    George F. Schoener, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and WICKERSHAM and KELLY, JJ.
   CIRILLO, President Judge:

Appellant, Royal Globe Insurance Company (Royal), appeals from an order denying its petition to vacate, modify or correct an award of arbitrators. The trial court held that the arbitrators committed no error of law in concluding that the Pennsylvania Workmen’s Compensation Act did not bar appellee’s recovery of uninsured motorist benefits under her employer’s fleet policy. The trial court similarly supported the arbitrators’ conclusions that the insurance contract at issue afforded appellee coverage in excess of the limit of $15,000 indicated in documents produced by Royal. We affirm in part and reverse in part.

The issues raised on appeal are as follows:

I. Whether Thompson’s claim for uninsured motorist benefits is barred by Section 481(a) of Pennsylvania’s Workmen’s Compensation Act;
II. If Thompson is entitled to recover uninsured motorist benefits, whether she may not stack the coverages applicable to Sun’s fleet of vehicles and her recovery must be limited to $15,000; and
III. Whether there was a legal basis for the arbitration panel to have found that Royal acted in bad faith during the conduct of the arbitration and to have awarded damages based on that finding.

Appellee, Beverly K. Thompson, was injured in an automobile accident involving an uninsured motorist on October 20, 1976. At the time of the accident, Thompson was driving a vehicle leased from Penske Leasing, Inc. by her employer, Sun Oil Company. Sun assigned the vehicle to Thompson for her exclusive use. Thompson was operating the vehicle within the course and scope of her employment at the time of the accident. Thompson sought and received Workmen’s Compensation benefits from her employer.

Sun voluntarily provided insurance for the vehicle pursuant to a fleet policy issued by Royal. However, Thompson was required to pay $25 per month to Sun for automobile insurance premiums. Those insured under the policy produced by Royal included Sun and 107 affiliated companies. Thompson was not listed by name as insured under the policy. Sun had between 293 and 1000 vehicles in its fleet at the time of the accident.

Pursuant to the Arbitration Act of 1927, the uninsured motorist claim went before an arbitration panel. The panel found in favor of Thompson and against Royal in the amount of $1,750,000.00, and the court denied Royal’s petition to modify, correct or vacate the award.

This Court recently considered whether an employee who collects workmen’s compensation benefits following an employment related motor vehicle accident is precluded from obtaining uninsured motorist benefits. In Boris v. Liberty Mutual Insurance Co., 356 Pa.Super. 532, 515 A.2d 21 (1986), we held that an injured employee’s recovery of workmen’s compensation benefits did not bar a subsequent recovery of uninsured motorist benefits. Accordingly, based on the reasoning set forth in Boris, we affirm the trial court’s determination that Thompson is not precluded from recovery of uninsured motorist benefits.

We next consider the propriety of the arbitrators’ conclusions regarding the extent of uninsured motorist coverage. The standard of review in this case is governed by Section 7302(d)(2) of the Uniform Arbitration Act which provides as follows:

(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this sub-chapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the. court would have entered a different judgment or a judgment notwithstanding the verdict.

42 Pa.C.S. § 7302(d)(2).

The arbitration panel concluded that Royal acted in “bad faith” by intentionally withholding and concealing the complete insurance policy at issue in the instant case. Therefore, the panel determined, the arbitrators’ ability to ascertain the limits of coverage and the names of those designated as insured was hampered, and an “ambiguity” was created. The panel was constrained to decide the “ambiguities” in Thompson’s favor, citing Cowden v. Aetna Casualty & Surety Co., 389 Pa. 459, 134 A.2d 223 (1957), Ehrlich v. U.S. Fidelity & Guaranty Co., 356 Pa. 417, 51 A.2d 794 (1947), Hart v. State Farm Mutual Automobile Insurance Co., 288 Pa.Super. 53, 431 A.2d 283 (1981), and Shearer v. Read, 286 Pa.Super. 188, 428 A.2d 635 (1981). Accordingly, Thompson was awarded an amount far in excess of the standard coverage limit of $15,000.00. The panel found that a document tendered by Royal purporting to limit uninsured motorist benefits to $15,000 per person was “not indicative of the total parameters of recovery available to the plaintiff____” The panel found additional support for their coverage determination in evidence indicating the existence of a $1,000,000 deductible for uninsured motorist protection pursuant to the Royal-Sun contract.

We hold that the panel’s conclusions regarding the amount of coverage were contrary to law. The trial court erred in refusing to modify the award.

We first consider the “ambiguities” created by Royal’s purported refusal to supply a complete contract of insurance. Initially, we note that the burden was on Thompson to prove each element of a cause of action entitling her to a recovery under the contract. As stated in Benjamin v. Allstate Insurance Co., 354 Pa.Super. 269, 511 A.2d 866 (1986):

“As in other civil actions, the burden is on the plaintiff, in an action on an insurance policy, to prove every fact in issue which is essential to his cause of action or right of recovery.” 19 P.L.E. Insurance § 461. See: Marlowe v. Travelers Insurance Co., 320 Pa. 385, 181 A. 592 (1935); Allen v. Insurance Co. of North America, 175 Pa.Super. 281, 104 A.2d 191 (1954). Thus, it is the plaintiff who is required to establish that his claim is within the coverage provided by the policy. See: Appleman, Insurance Law and Practice § 12094.

Id., 354 Pa.Superior Ct. at 272, 511 A.2d at 868. The panel’s conclusion that “Royal’s failure to present evidence allowed the majority to go beyond that which was presented ...” effectively shifted the burden of proof to Royal. To the extent that the panel placed the burden of disproving the existence of coverage upon Royal, it erred.

We recognize that Royal was obligated to produce the governing insurance policy pursuant to a court order entered prior to the arbitration. However, we believe that upon Royal’s failure to produce as ordered, it was incumbent upon Thompson to seek sanctions as provided for by Pa.R.C.P. 4019(c). This she did not do with respect to the policy. Royal’s failure or refusal to produce discoverable items to Thompson’s satisfaction or in violation of the court’s order may have placed Thompson in a position to seek a judgment by default or other court imposed sanctions. However, the panel was not thereby imbued with authority to manufacture policy terms out of thin air.

Thompson argues that the panel and the trial court had the authority to construe “ambiguities,” created by Royal’s failure or refusal to produce the policy, in Thompson’s favor. She cites D’Allessandro v. Durham Life Insurance Co., 503 Pa. 33, 467 A.2d 1303 (1983) in support of this proposition. This argument is without merit. Our Supreme Court in D’Allessandro reiterated the rule regarding the construction of ambiguous language in insurance policies.

[Wjhere the language of a policy prepared by an insurer is either ambiguous, obscure, uncertain or susceptible to more than one construction, courts will construe the language most strongly against the insurer and accept the construction most favorable to the insured. Ehrlich v. U.S. Fidelity & Guaranty Co., 356 Pa. 417, 423, 51 A.2d 794, 797 (1947).

503 Pa. at 37, 467 A.2d at 1305 (emphasis added).

In Ehrlich, the Supreme Court explained the application of this rule of construction: “That rule, like corresponding artificial aids for the ascertainment of intent, becomes germane only when the meaning of the writing in action is doubtful, uncertain or ambiguous.” 356 Pa. at 423, 51 A.2d at 797.

The rule applies only when the meaning of the language in a policy is so doubtful, uncertain, or ambiguous as to obscure the intent of the drafter. In the instant case, the panel made no finding that any specific portion of the policy was ambiguous. The panel determined that it did not have the complete policy before it. Thus, the panel was not concerned with ambiguous or conflicting contract language of terms in need of construction, but rather a perceived lack of language as a result of Royal’s conduct. The panel erred when it determined that the lack of an insurance policy or part of a policy entitled it to “construe” terms which, according to the panel’s findings, were never before the panel in the first place.

[41 The panel appears to have based its decision at least in part upon its determination that Royal acted in “bad faith” under the holdings in Cowden and Shearer, supra. While Royal may or may not have been in violation of a court order and thereby deserving of court imposed sanctions, its conduct clearly does not constitute the type of “bad faith” conduct recognized by Cowden and its progeny. Quite simply, the panel erred to the extent that it relied upon Cowden and the cases which have followed it. Cow-den and Shearer concerned bad faith suits brought against an insurance company as a result of the insurer’s failure to settle a third party liability claim against its insured. The principles espoused in Cowden and restated in Shearer have nothing to do with the instant case. Here, the insured has not pursued a bad faith claim against Royal but rather an action based on the uninsured motorist provisions of the insurance policy.

We next consider the panel’s reliance upon the existence of a $1,000,000 deductible for uninsured motorist protection. We fail to see how the existence of such a deductible is in any way determinative of limits of uninsured motorist coverage. Thompson presented no evidence establishing a relationship between the deductible and the disputed limits of uninsured motorist coverage. What Sun and Royal did in negotiating a deductible is wholly irrelevant to Thompson’s claim and unrelated to the issue of the limit on uninsured motorist coverage.

Finally, having determined that the panel’s award could not have been based upon (1) “ambiguities” created by the absence of a policy; (2) a “bad faith” action against Royal; or (3) the mere existence of a deductible, we next consider whether the panel’s award may nonetheless be supported on some other ground. A decision may be affirmed if it is correct for any reason, even though the reasoning employed by the trial court may have been faulty. Dauphin County Technical School Education Assoc. v. Dauphin County Area Vocational-Technical School Board, 483 Pa. 604, 398 A.2d 168 (1978). In the instant case, neither the panel nor the trial court addressed the question of whether Thompson might be entitled to stack the uninsured motorist coverages provided pursuant to the commercial fleet policy. Thompson argues that stacking is appropriate inasmuch as she is a “class one” insured pursuant to Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). In Contrisciane, our Supreme Court “reserve[d] for another day the question of whether a ‘class one’ insured may stack coverages under a fleet policy....” Id., 504 Pa. at 338-39 n. 4, 473 A.2d at 1010-11 n. 4. This question was raised and answered in Miller v. Royal Insurance Co., 354 Pa.Super 20, 510 A.2d 1257, wherein a panel of this Court concluded that even a class one insured is not entitled to stack uninsured motorist coverages under a fleet policy. We find the reasoning employed in Miller .to be dispositive in the instant case. Thus, assuming arguendo that Thompson was a class one insured, we conclude that she was not entitled to stack coverages.

Having determined that no basis exists for the panel’s award, we next consider whether the evidence adduced at the arbitration hearing would justify a modification or correction of that award. At the hearing, Thompson presented a copy of the insurance policy to the panel. The policy indicates a standard minimal uninsured motorist liability coverage of $15,000 per person. Further, deposition examination of William Arnold, the account executive responsible for the Sun account in 1976, established that the uninsured motorist endorsement set forth the limitation of liability as $15,000 per person. In sum, the evidence produced by Thompson establishes that the uninsured motorist coverage afforded in this case is limited to $15,000. Accordingly, we vacate the order of the trial court and enter judgment in favor of Thompson in the amount of $15,000.

Order vacated. Judgment entered in favor of appellee in the amount of $15,000.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

I respectfully dissent. Appellant insurance company presented the arbitration panel with a plethora of documentation concerning their insurance contract with appellee’s employer. However, appellant could not or would not direct the arbitration panel to the complete parameters of coverage existing at the time of appellee’s accident. The arbitration panel, therefore, needed to construe segments of the evidence of coverage into a coherent whole; the policy fragments, as presented to the panel, constituted an ambiguity which the panel properly construed against appellant and in favor of appellee. D’Allessandro v. Durham Life Insurance Co., 503 Pa. 33, 467 A.2d 1303 (1983). Accordingly, I would affirm the order of the trial court.

      . Act of December 5, 1974, P.L. 782, No. 263, as amended 77 P.S. § 481(b).


author: CAVANAUGH, Judge:

text:
    521 A.2d 940
    COMMONWEALTH of Pennsylvania, Appellee, v. Paula ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1986.
    Filed Jan. 6, 1987.
    Reargument Denied March 20, 1987.

      Edward R. Eidelman, Public Defender, Allentown, for appellant.
    Harold S. Stevens, Assistant District Attorney, Allentown, for Com., appellee.
    Before CAVANAUGH, McEWEN and MONTEMURO, JJ.
   CAVANAUGH, Judge:

The sole issue raised in this appeal is whether the lower court erred in granting a Commonwealth motion to consolidate and in denying a defense motion to sever three charges of prostitution, 18 P.S. § 5902(a)(1) and (2).

Appellant was arrested on August 24, 1984 for a prostitution offense which occurred on August 21, 1984; she was arrested on November 9, 1984 for an offense committed on November 8, 1984; and she was arrested on February 1, 1985 for the offense committed on January 30, 1985. Appellant was held over on all charges in separate informa-tions. The lower court granted the Commonwealth’s motion to consolidate the cases, and denied the defense motion to sever because it found that evidence of each offense would be admissible at a separate trial for the others since appellant employed a distinctive modus operandi. The modus operandi, the lower court found, was revealed in the following similarities:

1. Appellant loitered in an area of Allentown known as the “tenderloin;”
2. Only white males were solicited;
3. These men drove cars on public streets; and
4. The verbal exchanges were similar.

From these circumstances, the Commonwealth asks us to find that the separate crimes were so nearly identical that it was very unlikely that anyone other than appellant committed all three. This we decline to do. Rather, we find that the lower court abused its discretion in consolidating the trials.

The standard for consolidation of informations is contained in Pa.R.Crim.P. 1127 A.

Rule 1127. Joinder — Trial of Separate or Informations A. Standards
(1) Offenses charged in separate indictments or infor-mations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.

In determining those instances in which “the evidence of each of the offenses would be admissible in a separate trial for the other,” our courts have stated the following:

It is black letter law that evidence of one crime is inadmissible against a defendant being tried for another crime because the fact of the commission of one offense is not proof of the commission of another. See Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971). However, there sometimes exist special circumstances which operate as exceptions to the general rule and bring the case within the equally well established principle that evidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial — in other words, where there is such a logical connection betwen the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. See Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955).

Commonwealth v. Peterson, 453 Pa. 187, 197-193, 307 A.2d 264, 269 (1973), quoted in Commonwealth v. Brown, 351 Pa.Super. 119, 127, 505 A.2d 295, 299 (1986). As noted by this court’s opinion in Brown, the Supreme Court in Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981), explained that a distinctive modus operandi exists where “crimes of the accused [are] so nearly identical in method as to earmark them as the handiwork of the accused ... [T]here must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others.” Commonwealth v. Brown, 351 Pa.Super. at 128, 505 A.2d at 299; quoting Commonwealth v. Morris, 493 Pa. 164, 176, 425 A.2d 715, 720-721.

Our cases have cited with favor Professor McCormick’s treatise on evidence on this point, McCormick on Evidence, § 190, at 448-451 (2d Ed. 1972), wherein he states that, “the device used must be so unusual or distinctive as to be like a signature.” Commonwealth v. Morris, supra, 493 Pa. at 176, 425 A.2d at 720, Commonwealth v. Patterson, 484 Pa. 374, 378, n. 6, 399 A.2d 123, 126, n. 6 (1979), Commonwealth v. Blady, 298 Pa.Super. 82, 444 A.2d 670 (1982).

The instant case does not present a set of facts that indicates that no one other than appellant was likely to have committed all three crimes. Indeed, the circumstances surrounding the commission of the three offenses are without distinguishing elements. As noted by appellant, it is not difficult to imagine any number of prostitution prosecutions in which these similarities would be present. The offenses were separated from one another over a period of months. That they occurred within the same general area over that period of time is not probative on the matter of consolidation. As the record indicates, the “tenderloin” area of Allentown is an area of some seven square blocks which is known for its prostitution activity. Clearly, we cannot assume that appellant was the only individual within this enclave who was likely to be soliciting white males in cars. The arresting officers testified that they chose to patrol the area because it was frequented by prostitutes who walk in the streets and loiter on steps, corners and laundromats.

Similarly, the fact that white males driving on public streets were the objects of attention and that verbal exchanges occurred between the officers and appellant does not cause the inevitable conclusion that the crimes bear the earmark of only one possible actor. On the contrary, the similarities found by the trial court are quite possibly present in the majority of prostitution cases occurring within this area of Allentown. This court does not find it remarkable that in the course of committing the crime of prostitution, a defendant is present within a known red light district and engages in verbal exchanges with males in cars. In our urban areas, this occurrence, while lamentable, is rendered less distinctive for its frequency rather than more. As the Supreme Court stated in Commonwealth v. Morris, supra, 493 Pa. at 176, 425 A.2d at 721:

The Commonwealth must show more than the other crimes are of the same class as the one for which the defendant is being tried. Rather, there must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others. See, Commonwealth v. Fortune, [464 Pa. 367, 346 A.2d 783 (1975) ].

Ibid., quoted in Commonwealth v. Brown, supra, 351 Pa. Superior Ct. at 128, 505 A.2d at 299.

On the basis of the facts before it, the lower court erred in ordering consolidation of the three offenses. Evidence of one crime would not be admissible at trial of the others on the basis of a similar modus operandi The appellant’s motion to sever should have been granted.

Judgment of sentence reversed and a new trial on each offense is ordered. Jurisdiction is not retained.