author: MONTEMURO, Judge:

text:
    577 A.2d 609
    COMMONWEALTH of Pennsylvania v. John K. FRANK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1990.
    Filed July 6, 1990.

      Glenn D. McGogney, Allentown, for appellant.
    John T. Robinson, Dist. Atty., Selinsgrove, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

The appellant, John K. Frank, has appealed from the judgment of sentence entered on December 8, 1989, by the Court of Common Pleas of Snyder County, ordering him to undergo imprisonment for a period of not less than six years and three months nor more than fifteen years for the offense of rape by forcible compulsion or threat of forcible compulsion. See 18 Pa.C.S.A. § 3121(1) and (2). Appellant received the same' sentence for the offense of involuntary deviate sexual intercourse as defined pursuant to 18 Pa.C. S.A. § 3123(5). Appellant’s sentences are to be served consecutively. The appellant presents six issues to this Court for review, which shall be addressed seriatim. Following a careful consideration of the issues raised by the appellant, in light of the record before us, we affirm.

Appellant initially contends that the trial court erred in admitting the testimony of six witnesses, offered by the Commonwealth to establish 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 others.” Commonwealth v. Peterson, 453 Pa. 187, 197-198, 307 A.2d 264, 269 (1973). The victim involved in the instant case, T.Y., first met the appellant when T.Y. was eleven or twelve years of age. At the time of trial in the case at bar, T.Y. was seventeen years of age. T.Y. testified that, prior to the time he first met with appellant, he had been “kicked out from where my real parents live,” and had resided in four or five different foster homes. N.T., May 23, 1989, at 41. T.Y. was taken to see the appellant by his adoptive mother at the time, P.Y. Appellant was a therapist and contracted with local social service agencies to provide counselling to troubled youngsters and their families. T.Y. testified that he was taken to see the appellant to be counselled concerning behavioral problems: lying and stealing. Id. Although the exact number of individual counselling sessions with the appellant was disputed at trial, appellant did counsel T.Y. from January of 1982 through February of 1983.

T.Y. was counselled in an office located within the appellant’s Selinsgrove home. T.Y. testified that after a few months, the appellant requested that T.Y. sit on the appellant’s lap for counselling. Id. at 44. After a few weeks of sessions where T.Y. would sit on appellant’s lap, appellant began requesting that T.Y. kiss the appellant on the cheek or on the lips. Id. at 45. Again after a few weeks of this type of conduct during the sessions, T.Y. testified that the appellant began fondling T.Y.’s penis while T.Y. sat on his lap. Id. at 46. T.Y. stated that appellant, during the next several counselling sessions, would pull T.Y.’s pants down and masturbate T.Y. Id. at 48. T.Y. testified that throughout this progression, he was afraid and confused. At almost every session, appellant would warn T.Y. that if he revealed what was occurring during the counselling sessions to anyone, appellant would “screw up [T.Y.’s] adoption and ... hurt somebody that was close to [T.Y.].” Id. at 49. T.Y. testified that as time passed, the appellant added mutual oral intercourse to the sessions. Then, after several sessions involving this type of conduct, T.Y. testified that the appellant had T.Y. bend over a desk, and then the appellant engaged in anal intercourse with T.Y. Id. at 54. Anal intercourse in this manner occurred during two or three sessions. Id. at 55.

The Commonwealth, following the testimony of T.Y., was permitted to introduce the testimony of six individuals who, like T.Y., had been counselled by the appellant during their adolescence. Each of these witnesses testified that the appellant had initiated some type of sexual contact with them during counselling sessions. Appellant contends that this was prejudicial error, necessitating the grant of a new trial. The trial court ruled that the testimony of the witnesses was admissible to establish a common plan, scheme or design. Prior to examining the testimony of these witnesses, we review the precedent upon which we must rely in considering whether the admission of the testimony of these Commonwealth witnesses was prejudicial error.

“One of our most fundamental and prized principles in the administration of criminal law is that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that he has committed another and because the effect of the testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant.” Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955). One “special circumstance” which may provide a basis for the admission of evidence of other criminal acts by a defendant has become known as the common plan, design or scheme exception. This Court has recognized that to fit within this exception, the “crimes must embrace distinctive elements and be so nearly identical as to bear the ‘signature’ or be the ‘handiwork’ of the same person.” Commonwealth v. Shirey, 333 Pa.Super. 85, 124, 481 A.2d 1314, 1335 (1984) (citation omitted).

The appellant has directed us to our decision in Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976), wherein the appellant was a member of the supervisory staff of an institution for mentally retarded children known as the Hillcrest School. The appellant in Bradley had been convicted of performing involuntary deviate sexual intercourse with a thirteen year old resident of the institution during December 1968. During trial, the Commonwealth called four former residents of the Hillcrest School, and these individuals testified that either they had witnessed the appellant performing sexual acts with other residents of the institution, or that they personally had been been forced to engage in sexual acts, such as anal or oral intercourse, with the appellant. The Bradley Court held that the admission of this evidence had been erroneous, because it did not fit within the common plan exception:

The alleged acts of sodomy in the case at bar could not be dated with precision, but some acts may have occurred almost three years before the December 1968 incident charged in the indictment, and some acts may have occurred as much as three years after December, 1968. These random and remote acts are not relevant in establishing that appellant acted according to an explicit and premeditated plan on December, 1968.

Id., 243 Pa.Superior Ct. at 214, 364 A.2d at 946-947. Further, the Bradley Court recognized that there was nothing so distinctive about the alleged acts of oral and anal sodomy “as to be tantamount to the appellant’s unique ‘signature.’ ” Id., 243 Pa.Superior Ct. at 214 n. 2, 364 A.2d at 947 n. 2.

In discussing the common plan exception as it relates to sex offenses, the Court in Bradley distinguished the decision of the Pennsylvania Supreme Court in Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949). In Kline, the appellant had been convicted for a rape occurring on October 20, 1946, and the Commonwealth had presented the testimony of a woman who stated that during approximately the same time, the appellant had exposed himself to her. The Supreme Court found no error in the admission of this testimony and in doing so, opined:

The word ‘design’ implies a plan formed in the mind. That an individual who commits or attempts to commit abnormal sex offences is likely to have such a mental ‘plan’ finds recognition in the fact that when a defendant is charged with the commission of a sexual offence the law is more liberal in admitting as proof of his guilt evidence of similar sexual offences committed by him than it is in admitting evidence of similar offences when a defendant is charged with the commission of non-sexual crimes____ [I]f A is being tried for rape or attempted rape of Y the fact that recently he raped or attempted to rape X is admissible in evidence because it tends to prove that he possessed such an abnormal mental or moral nature as would likely lead him to commit the offence charged.

Id., 361 Pa. at 443-444, 65 A.2d at 351. In Bradley, this Court stated that the more liberal “mental plan” exception, recognized in Kline as available for cases involving sex offenses, should not be applied to evidence of events occurring more than one year prior to the offense charged in the indictment, as the inference of a common mental plan set forth in Kline would be rendered too weak and speculative under such circumstances. Bradley, supra 243 Pa.Super. at 215, 364 A.2d at 944.

We do not and need not rely upon the more liberal mental plan exception applicable to sex offenses as set forth in Kline. Several of the witnesses in the present case testified concerning events which occurred outside of the “one year cutoff” announced by our decision in Bradley. Moreover, we note that in Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981), two justices, with two justices concurring in the result and two justices dissenting, were of the opinion that Kline should be overruled. Finally, in finding no error in the admission of the testimony of the six witnesses here, we have determined that such evidence, when judged under the standard employed in cases involving non-sex crimes, satisfies the requisites of the common plan exception to the general rule that evidence of other criminal activity on the part of a criminal defendant in not admissible evidence.

We are cognizant of the fact that a determination of whether evidence is admissible under the common plan exception must be made on a case by case basis in accordance with the unique facts and circumstances of each case. However, we recognize that in each case, the trial court is bound to follow the same controlling, albeit general, principles of law. When ruling upon the admissibility of evidence under the common plan exception, the trial court must first examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator. Given this initial determination, the court is bound to engage in a careful balancing test to assure that the common plan evidence is not too remote in time to be probative. If the evidence reveals that the details of each criminal incident are nearly identical, the fact that the incidents are separated by a lapse of time will not likely prevent the offer of the evidence unless the time lapse is excessive. Finally, the trial court must assure that the probative value of the evidence is not outweighed by its potential prejudicial impact upon the trier of fact. To do so, the court must balance the potential prejudicial impact of the evidence with such factors as the degree of similarity established between the incidents of criminal conduct, the Commonwealth’s need to present evidence under the common plan exception, and the ability of the trial court to caution the jury concerning the proper use of such evidence by them in their deliberations.

This Court, in Commonwealth v. Newman, 388 Pa.Super. 146, 564 A.2d 1308 (1989), discussed the subject of the common plan exception in a case involving two occurrences of rape upon patients of a hospital where the defendant was employed as an x-ray technician. The occurrences were separated by an eighteen month interval. The Newman Court recognized that “the shared similarities which produce the conclusion of ‘common design’ may only be found ... in the acts which compose the crime and which are performed by the perpetrator.” Id., 388 Pa.Superior Ct. at 149-150, 564 A.2d at 1310 (emphasis added). The Newman Court determined that neither rape would be admissible in trial of the other, because, upon scrutiny of the details of the two crimes, the similarities necessary to support the application of the common plan exception were missing. “The essential elements of the act of rape, as well as other sexual crimes, will necessarily produce any number of similar characteristics when two acts of rape are scrutinized for shared features, particularly where, as we have here seen, there is commonality of roles and situs attendant the criminal episodes.” Id., 388 Pa.Superior Ct. at 151-152, 564 A.2d at 1311.

A similar result was reached in Commonwealth v. Kasko, 322 Pa.Super. 62, 469 A.2d 181 (1983), wherein we held that the trial court had erred in consolidating the cases against the defendant. In Kasko, the defendant was charged with molesting his girlfriend’s six-year-old niece in February or March of 1980. The molestation, which involved anal intercourse, occurred in the presence of the defendant’s girlfriend. The defendant was also charged for an incident occurring in December of 1980 or January of 1981, which involved the defendant encouraging children in his family, a four-year-old girl and a five-year-old boy, to have indecent contact with each other. This Court determined that the common plan exception was not applicable under the circumstance present in Kasko on the basis that:

... the two cases were separated by a substantial period of time and involved different victims. They occurred under dissimilar circumstances in that one allegedly occurred in the presence of appellant’s girlfriend, later his wife, while the other did not. One case involved both a young boy and a young girl, whereas the other only involved a young girl. Finally, the misconduct alleged in this case is, sadly, not as rare as it should be, but is rather a common form of child abuse.

Id., 322 Pa.Superior Ct. at 68-69, 469 A.2d at 185. See also Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984).

In contrast to the holdings in Newman and in Kasko, our Supreme Court, in Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989), has recently relied upon the common plan exception to affirm the finding that evidence of one rape, committed on January 5, 1980, was admissible in a prosecution for a rape and murder committed at an earlier date: March 1, 1979. The Court determined that the similarities of the two crimes represented the unique signature of the appellant:

... (1) both crimes involved young females (Graham was nine; Oquendo was twelve); (2) both victims were non-Caucasian ... (3) both crimes occurred during daylight; (4) both crimes took place within a four-block radius; (5) both crimes took place within a five-minute walk from Appellant’s home; (6) both crimes involved circumstances in which the victim was lured or strong-armed off the street; (7) both victims were taken to upstairs bedrooms of vacant buildings; (8) in both crimes the assailant ordered the victims to undress; (9) both crimes involved rape, other sex acts (Graham was anally; Oquendo was orally), and manual strangulation; and (10) both crimes involved circumstances in which the accused and the victims previously were acquainted.

Id. 521 Pa. at 459, 555 A.2d at 1282. Additionally, Ms. Oquendo knew the appellant as “Peanut” and, at the Graham crime scene, the letters “PEA” had been burned into the ceiling. See also Commonwealth v. Buehl, 510 Pa. 868, 508 A.2d 1167 (1986).

We also note the decision reached by our Court in Commonwealth v. King, 290 Pa.Super. 563, 434 A.2d 1294 (1981), wherein we relied upon the common plan exception to find that two cases of sexual assault were properly consolidated. We find the facts of King particularly analogous to the facts underlying the present appeal. In King, both victims had responded to an ad in the newspaper placed by MBX of Pennsylvania, which offered money for the applicant’s photographs, to be taken by an MBX professional photographer. Both victims completed applications to MBX, which had no offices but used the homes of the modeling “students” for photography sessions. Appellant met with the two victims after the victims responded to the ad. One victim was lured by the appellant to an isolated location on the pretext of -visiting the residence of another MBX model. There, this victim was raped and otherwise sexually assaulted by appellant. The second victim was sexually assaulted by appellant when she was alone with him in her home for a photography session. “In sum, both the Clayton and St. Cyr cases are promoted by MBX, which was used by appellant as a means of contacting, isolating and attacking the two victims. The attacks thus constituted a common scheme to use MBX as a vehicle for appellant to gain access to young women for the purpose of sexual gratification.” Id. 290 Pa.Super. at 576, 434 A.2d at 1300. See also Commonwealth v. Gibbons, 379 Pa.Super. 285, 549 A.2d 1296 (1988) (the common plan exception would justify the consolidation and admission of evidence regarding each of six robberies charged against the appellant because of the following similarities: each of the six victims was a deliveryman in the process of making a delivery in the early afternoon; all offenses occurred within a five and one-half week period within the same vicinity; all victims were robbed at knifepoint by a single actor and had money taken directly from their pants pockets).

Turning now to the case presently before us, we have carefully reviewed the testimony of the six witnesses who appeared for the prosecution. We are convinced that the appellant’s actions as to each of these individuals represented admissible evidence under the common plan exception. The similarities between the occurrences described by these six witnesses and the victim, T.Y., were not insignificant details. Rather, the similarities are striking and represent the unique signature of this appellant. We need not consider whether the testimony of one or only a few of these witnesses would have been admissible. Issues concerning the admissibility of evidence must be determined on a case by case basis. Today, on the record before us, we find that the testimony of the six witnesses, considered as a whole, was properly admitted as evidence of a common plan or scheme.

All of the witnesses knew the appellant in the context of a counselor-patient relationship. They had met the appellant during their adolescence, when they were experiencing emotional, behavioral, or psychological difficulties. Their need to meet with a counselor stemmed from their common pasts as children who had moved between various foster homes and orphanages. The witnesses uniformly testified that they were counselled by the appellant with no other adult in the room, behind closed doors. This counselling either occurred in appellant’s home office in Selinsgrove or in alternate counseling headquarters in a private home in York, Pennsylvania. All of the witnesses testified that at first, the appellant would have them sit on his lap for counselling. With the exception of B.P. and A.C., the witnesses testified that appellant would then have the young men kiss him. All of the witnesses testified that at some point during their counselling with the appellant, usually after a series of visits, the appellant pulled their pants down and masturbated them. One of the witnesses, A.C., also testified that the appellant had engaged in oral intercourse with him.

Significantly,' all of the witnesses testified as to the patterned manner in which the appellant set the stage for his sexual advances. In the case at bar, T.Y. testified that he was confused and afraid during his meetings with the appellant, and that appellant had threatened to ruin his adoption or to harm someone close to T.Y. in the event that T.Y. revealed what was occurring during his sessions with the appellant. A.Y. testified that at the time he was molested by the appellant, he “was in the process of wanting a family, to be adopted____” N.T. May 24, 1989, at 51. He testified that he never reported the incidents with the appellant because “I was afraid that they wouldn’t adopt me and they wouldn’t believe me____” Id. A.C. testified that at the time he was meeting with appellant in appellant’s Selinsgrove office, “... it just seemed like everything in my whole life at the time was going wrong, I wanted to get on to my real mother and things just wasn’t working out, everything just seemed to be coming down____ [Appellant] made me certain promises like he would try to help me get on to my mother. He guided me and promised to do all the things he was saying and doing---- I mean he did everything that would seem to be in, you know, like he was your friend.” Id. at 24-25.

Likewise, R.G. testified that the appellant told R.G. that he loved him. N.T., May 23, 1989, at 157. When questioned as to why he had permitted the appellant to masturbate him, R.G. testified that “[a]t that period of life, when you’re the age—when you’re being put up for adoption, you’re very insecure. Mr. Frank was a person that at one time, I felt trusted, that I could trust in him---- [Appellant] said there was nothing wrong with [the masturbation.]” Id. at 166. D.K. similarly testified that appellant told D.K. that he loved him. Id. at 174. D.K. also testified that he trusted the appellant and, because he was young at the time, he did not know that the conduct occurring between them was wrong. Id. at 176. M.K. testified that he was up for adoption at the time he was molested by the appellant. M.K. testified that when he told his foster parents about the sexual conduct of the appellant, appellant denied it and called M.K. a liar. M.K. then decided to tell his foster parents that he had lied to them, because his foster parents “had [appellant] up on a pedestal, and nobody was going to believe me because I had just come from an orphanage, and they thought I was mentally disturbed.” Id. at 186.

The testimony of the six witnesses was admissible because, as a whole, the testimony indicated a calculated, continuous, and uninterrupted pattern, plan or scheme of action on the part of this appellant with reference to appellant’s troubled, and obviously vulnerable, adolescent patients. The patients, at least initially, apparently viewed the appellant as a person of authority and as a professional person, respected in the community and by their foster or adoptive parents, who was purportedly able to help them to find or to keep a home and a family. Appellant typically made the patients feel close to him by having them sit on his lap, by having the patients kiss him, by promising to help them, by telling the patients he loved them. All of these actions were done by the appellant with the knowledge that these youths had experienced difficult childhoods and were then experiencing adjustment problems or other emotional, psychological or behavioral problems. A review of the testimony of all of the witnesses reveals they were typically frightened or confused and particularly vulnerable to appellant’s advances, because, at the time of their counselling sessions with the appellant, they believed appellant had the power to help or hinder their quest for a stable family life.

We reject the argument advanced by appellant that these incidents, some occurring three or four years prior to the criminal acts underlying the conviction, were too remote to be deemed admissible. “Remoteness ... is but another factor to be considered in determining if the prior crime tends to show that the same person committed both crimes.” Commonwealth v. Shively, 492 Pa. 411, 416, 424 A.2d 1257, 1259 (1981). See also Commonwealth v. Donahue, 519 Pa. 532, 549 A.2d 121 (1988). The trial court did not abuse its discretion in finding that the incidents were not too remote in time to be probative, because the trial court viewed these events as a continuous, uninterrupted pattern or scheme of conduct on the part of the appellant in his role as a therapist. See Commonwealth v. Gibson, 363 Pa.Super. 466, 526 A.2d 438 (1987). Given the degree of similarity in the details of each of the six experiences of these witnesses and the testimony of the victim, T.Y., the approach undertaken by the trial court in evaluating this proffered evidence as a whole was not error. Indeed, the relevancy of this evidence rested in large part upon the fact that the evidence indicated a recurring sequence of acts by this appellant over a continuous span of time, as opposed to random and remote acts. See Commonwealth v. Bradley, 243 Pa.Super. 208, 214, 364 A.2d 944, 946 (1976). See also State v. Morowitz, 200 Conn. 440, 512 A.2d 175 (1986) (circumstances of prior sexual assault of female patient by defendant, a podiatrist, was sufficiently similar to that of present offense to be probative of a common design or plan; in both offenses, defendant exploited his professional position to isolate, sedate, and sexually assault young female patients with the aid of tranquilizing drugs).

Finally, appellant contends that the testimony of the six witnesses should have been excluded, because the prejudicial impact of the evidence outweighed the probative value. We disagree. The experiences of the victim, T.Y., and the six witnesses vis-a-vis the appellant possessed a high degree of similarity when the circumstances of the experiences and the details of the actions on the part of the appellant are carefully considered. The Commonwealth’s need for the evidence was not minimal in light of the victim’s failure to promptly reveal the fact that he had been sexually molested by the appellant, and the evidence concerning the victim’s contemporaneous sexual relationship with his adoptive brother. Moreover, the jury was carefully cautioned by the trial court on three different occasions concerning the limited purpose for which the evidence of other criminal acts on the part of the appellant could be considered by the jury in their deliberations. See Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989). Finally, and significantly, the appellant testified during direct examination that it was his style of counselling to have the child or adolescent patient sit on his lap, and .to “frequently hold the child, hold the child closely____[and] on occasion, kiss the child on the cheek or have that returned.” N.T., May 24, 1989, at 103. Appellant further testified that he had performed physical examinations on his patients, specifically naming R.G., D.K., M.K., and B.P. Id. at 123-124. Further, appellant testified as follows:

Q. Did you ever have [R.G.] remove his pants and his undershorts to do an examination?
A. Yes.
Q. Exactly what did that examination consist of?
A. Standard physical examinations, what I would do is ask, what are your concerns, what do you fear and that would be upon comparison of a child to other people or the way he thought he should be or whatever. When the child revealed his fantasy, then I would explain his anatomy and say all right, it was the usual examination, development, testicular development, palpation or whatever and say here’s what’s going on____

Id. at 124-125. In light of the record before us, considered as a whole, the trial court did not err in determining that evidence of other criminal acts committed by the appellant was not too prejudicial to be presented to the finder of fact.

We are mindful that in a case involving the sexual molestation of children, there is certainly a very real danger that the jury will be unduly inflamed by hearing evidence of other similar criminal acts on the part of the criminal defendant. The heinous nature of such crimes is the subject of social outrage, and naturally and properly so. For this reason, we believe that our holding today represents the rare case, where, due to the specific content of the defendant’s testimony and the striking similarities surrounding the evidence of other criminal acts as compared to the victim’s testimony, prejudice was not too great.

As a second issue, the appellant contends that the trial court should have granted his motion for a demurrer as to the charge of rape, because the Commonwealth failed to prove the element of forcible compulsion or threat thereof beyond a reasonable doubt. See 18 Pa.C.S.A. § 3121(1) and (2). Our Supreme Court has determined that “forcible compulsion” as used in Section 3121 “includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against a person’s will.” Commonwealth v. Rhodes, 510 Pa. 537, 555, 510 A.2d 1217, 1226. A determination of forcible compulsion or the threat thereof is to be made based upon the totality of the circumstances in a particular case:

Significant factors to be weighed in that determination would include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress. This list of possible factors is by no means exclusive.

Id., 510 Pa. at 556, 510 A.2d at 1227. In Rhodes, the victim of the rape offense was an eight year old neighbor of the defendant, and had known the defendant for approximately three years. When the defendant asked the victim whether she wanted to go somewhere with him, he led her to an empty room on the second floor of an abandoned building. The victim told the defendant to “stop” touching her, but he proceeded to have both vaginal and anal intercourse with her. Finding sufficient evidence to support a finding of forcible compulsion or threat of forcible compulsion, the Supreme Court opined:

There is an element of forcible compulsion, or threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion or the threat of forcible compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult (“prevent resistance”), without the use of physical force or violence or the explicit threat of physical force or violence. As Judge Cavanaugh noted in his dissenting opinion in this case, “the illicit commands of this twenty year old (man) in an isolated and abandoned room were ... an imperative which gave the (eight year old) child victim no alternative but submission to appellant’s corrupt scheme.”

Id., 510 Pa. at 557-558, 510 A.2d at 1227. See also Commonwealth v. Dorman, 377 Pa.Super. 419, 547 A.2d 757 (1988) (evidence sufficient to establish element of forcible compulsion where defendant, the 38-year-old uncle of the victim, age thirteen, drove the victim to a remote wooded area, disrobed and raped victim despite victim’s protest of “don’t”).

Returning to the facts of the case at bar, we are convinced that the Commonwealth presented sufficient evidence to prove that the victim, T.Y., submitted to sexual intercourse with the appellant under forcible compulsion or threat thereof. T.Y., at the age of eleven or twelve, was taken to see appellant by his then adoptive mother. Due to the fact that his adoptive mother wanted T.Y. to receive counselling, T.Y. met with the appellant, alone, in appellant’s office, behind closed doors. Appellant occupied a position of authority such that it may be reasonably inferred that the victim would feel coerced to submit to appellant’s demands out of a sense of duty to obey not only the appellant, but also the wishes of his then adoptive mother. T.Y. specifically testified that appellant threatened to ruin his adoption or to hurt someone close to T.Y. in the event that T.Y. revealed what was occurring during his sessions with appellant. In his appellate brief, appellant emphasizes that T.Y.’s adoption was legally completed at the time he had his sessions with appellant. We are not convinced that this would be a comfort to a child who had learned to view little in life as permanent. In fact, the victim’s adoption was later negated. As the trial court aptly notes, T.Y. “was in social and familial purgatory. He had been a ward of the state, had been placed and adopted, and was fearful of again reentering the ranks of the homeless.” Op. of Trial Court, October 19, 1989, at 30. “While the force used to overcome the will of the victim in this case was to a large extent subtle and psychological, it nonetheless satisfies the element of forcible compulsion necessary to sustain appellant’s conviction for rape.” Commonwealth v. Dorman, supra, 377 Pa.Superior Ct. at 429, 547 A.2d at 762 (citation omitted).

Appellant’s next claim concerns various pretrial statements of the victim, T.Y., wherein he stated that he had suffered from uncontrollable bowel movements, and had soiled and bloodied his underwear as a result, during the time he was meeting with the appellant for counselling sessions. The Commonwealth did not introduce this evidence in its case-in-chief; nor did the Commonwealth present any physical evidence to establish that appellant raped T.Y. Moreover, the trial court in this matter was of the opinion that “... post-incident manifestations of feces in underwear were no more relevant to proof of anal intercourse than pregnancy would be proof of rape.” Op. of Trial Court, October 19, 1989, at 21. Appellant claims that he was prejudiced by the Commonwealth’s decision to exclude this evidence from its case-in-chief, because appellant was rendered unable to properly impeach the credibility of T.Y. through the introduction of evidence of a contemporaneous sexual relationship between T.Y. and his adoptive brother. This claim is meritless. Appellant was provided with the opportunity to impeach the credibility of T.Y. through his own testimony and the testimony of P.Y., his adoptive mother, in accordance with Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 896 (1985). Appellant was permitted to introduce this testimony to attempt to establish that T.Y. harbors a specific bias and hostility toward the appellant, and a motive to seek retribution. The trial court set forth appellant’s theory as follows:

... the victim was engaged in consensual anal intercourse with his brother. He desired to continue in that relationship. Revelation of that relationship to the defendant was embarrassing and jeopardized both the relationship and the continuation of his residence in the home. He was eventually removed from the home to an institution. As a result of that sequence of events, he harbors animosity toward the defendant, and the present charges arise from that bias and motive to falsify.

Op. of Trial Court, October 19, 1989, at 26. Appellant is entitled to no relief on these grounds.

Appellant next challenges the trial court’s decision to permit the expert testimony of Dr. Pinter as a rebuttal witness. The admission or exclusion of expert testimony lies within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. Presently, the appellant, during his direct testimony to the jury, testified in detail concerning his educational and professional background. He testified, inter alia, concerning his doctorate, his degree as a physician’s assistant, his publications, his television appearance on a show concerning adoptions, his role as a speaker and lecturer in over thirty states, and his experience in the area of mental health and children. When questioned concerning his style of counsel-ling, appellant testified that he would hold the children on his lap, kiss the children, and tell the children that he loved them. N.T., May 24, 1989, at 103. Appellant also testified that he performed the same physical examinations upon his therapy patients as he would have performed as “a physician’s assistant in family medicine____” Id. at 124. Although defense counsel did not seek to have the appellant qualified as an expert witness, the trial court correctly notes that “the jury could reasonably infer that the style or methodology adopted by Frank was consonant with the level of national recognition achieved by him, authorized by texts and research, and supported by the professional community which had elevated him to a person of national prominence.” Op. of Trial Court, October 19, 1989, at 34.

Dr. Pinter testified that appellant’s “style of counselling” his adolescent male therapy patients, through physical affection and physical examinations, was not in compliance with any professionally acceptable mode of therapy. Dr. Pinter’s testimony was relevant and not within the ordinary knowledge, intelligence and experience of the jury. Dr. Pinter’s testimony was specifically relevant to the issue of forcible compulsion:

The central issue in this instance was the “threat of forcible compulsion” as set forth in Rhodes. If all the preliminary maneuvers of the defendant were within the acceptable range of therapy and counseling, then the Commonwealth cannot effectively argue that they constitute the predicate steps ultimately concluding with psychological compulsion. In short, if every step concluding with the victim’s dropped trousers is within normal counseling practices, then the final act arguably lacks duress or compulsion.

Id. at 36.

Appellant also argues that it was error for the trial court to allow Dr. Pinter to testify as an expert concerning appellant’s reputation in the community, and that a mistrial should have been granted when Dr. Pinter called the appellant a “charlatan.” A review of Dr. Pinter’s testimony reveals that, as to appellant’s reputation in the community for honesty, truthfulness, and moral integrity, Dr. Pinter testified not as an expert, but as a community member who was aware of appellant’s reputation in the community. Further, we find no error in the trial court’s finding that Dr. Pinter’s characterization of the appellant as a “charlatan” did not “rise to the level of creating the unavoidable effect of denying the defendant a fair trial.” Id. at 39.

Appellant also contends that the trial judge should have granted the defense motion for recusal. Appellant bases this claim on the fact that the trial judge reviewed the victim’s Children & Youth records in camera, and during the course of the trial, defense counsel sought a Writ of Prohibition which was denied by the trial judge. Finally, appellant claims that the following statement in the trial judge’s May 2, 1989, Opinion indicates his bias: “Further, if evidence of other offenses is excluded, the judicial system becomes an unwilling participant in assuring [appellant’s] acquittal. This is a result which we are certain that the Courts of this Commonwealth will not and do hot condone.” Op. of Trial Court, May 2, 1989, at 16. “It is the burden of the party asserting that a judge should be disqualified to make sufficient allegations of bias, prejudice or unfairness necessitating recusal, and a failure to do so will result in denial of the recusal motion____ If a judge rules that he or she can hear and dispose of the case fairly and without prejudice, that decision will not be disturbed on review absent an abuse of discretion.” Commonwealth v. O’Shea, 523 Pa. 384, 408, 567 A.2d 1023, 1034 (1989) (citations omitted).

The trial judge did not abuse his discretion in failing to recuse himself in the present case. The fact that the trial judge reviewed the victim’s Children & Youth records or denied a defense motion certainly does not establish bias or prejudice necessitating recusal. With respect to the language cited by the appellant from the trial judge’s May 2, 1989, Opinion, we note that in an Opinion entered July 7, 1989, the trial judge notes that this language has been quoted out of context by the appellant and, further, that it evinces no bias or prejudice on the part of the trial judge:

It was never our intent to suggest any ... bias as to John Frank’s guilt or innocence or as to what the jury’s verdict should be. What the passage refers to is the concept that in any case, where the Commonwealth’s theory is that the defendant deliberately selected victims so vulnerable as to be generically incapable of successfully pursuing a case against him and this is coupled with his use of a professional position of responsibility and trust to select and isolate the alleged victims ... it would be unjust to guarantee an acquittal by limiting evidence solely to testimony of the named victim. The result we refer to in the passage quoted is to the need to guard against potential injustice. It was never our intent to express an opinion as to what the jury verdict should be in this case. That is a matter solely for the jury’s determination about which we neither express or profess an opinion. The result we refer to is the need to ensure that the trial is fair, to both parties. This was the concept which we attempted to convey in our prior opinion. With the benefit of hindsight, the language employed may have been ill-chosen and susceptible to misinterpretation. It was, however, never intended to be intemperate or to convey the mistaken impression that this court has any bias or opinion as to what the verdict of the jury should be. Our sole concern in ruling on these motions has been to attempt to reach a conclusion that comports with the dictates of justice and the law of this Commonwealth.

Op. of Trial Court, July 7, 1989, at 23.

Finally, appellant claims that the judge abused his discretion in fashioning the sentence. Appellant alleges in his “Statement of Reasons Relied Upon for Allowance of Appeal With Respect to the Discretionary Aspects of Sentencing” that the trial court failed to consider mitigating circumstances present in this case, and that the court improperly considered evidence of other criminal acts on the part of the appellant in determining his sentence. We will consider these claims seriatim to determine whether appellant has raised a substantial question that the sentencing scheme as a whole has been violated pursuant to Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

Appellant first alleges that the judge failed to consider the mitigating factors. Evidence of the mitigating circumstances was before the judge at sentencing, and an allegation that the judge failed to consider that evidence is essentially a claim that the judge failed to give that evidence the weight appellant thinks proper. Such a claim does not raise a substantial sentencing question. Commonwealth v. Osteen, 381 Pa.Super. 120, 127, 552 A.2d 1124, 1128 (1989). See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (when sentencing judge has before him the presentence investigation report, he is presumed to have considered the evidence found therein).

Appellant’s second allegation is that the judge improperly considered uncharged and unproven criminal activity in fashioning the sentence. To the contrary, the judge may consider uncharged criminal activity in determining the appropriate sentence. Commonwealth v. Palmer, 315 Pa. Super. 601, 614, 462 A.2d 755, 762 (1983) (citing Commonwealth v. Vernille, 275 Pa.Super. 263, 418 A.2d 713 (1980)). Even if this allegation were true, which is not at all clear from our reading of the record, it would not raise a substantial sentencing question. Since appellant has failed to raise a substantial question that the Sentencing Code as a whole has been violated, we deny allowance of appeal with respect to the sentencing issues. Commonwealth v. Rogers, 386 Pa.Super. 476, 481, 563 A.2d 165, 168 (1989) (citations omitted).

For all of the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . We note that recently a panel of this Court, in Commonwealth v. Powers, 395 Pa.Super. 231, 577 A.2d 194 (1990); Del Sole, J., dissenting), relied upon Commonwealth v. Kline, 361 Pa.Super. 434, 65 A.2d 348 (1949).

      . We note that the Supreme Court in Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989), did not cite or rely upon its decision in Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949).

      . In this decision, Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949), was not cited or otherwise relied upon.

      . The only exception to this appears to be B.P., who did not testify as to the reasons for his meeting with appellant. At an earlier proceeding, B.P. had testified that he was taken to see the appellant because he was experiencing psychological problems. Op. of Trial Court, October 19, 1989, at 7.

      . B.P., who apparently met with appellant only once due to some family and psychological problems which B.P. was experiencing at the time, did not testify at length concerning the circumstances of his meeting with appellant. However, he testified that things occurred during his session with the appellant that "you don’t do in a normal counselling session.” Id. at 168. B.P. testified that after he was molested by appellant, he refused to see the appellant again. Id. at 170.

      . In Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), the Supreme Court held that where the Commonwealth introduces medical evidence relevant to establish sexual intercourse, such as the presence of semen in the victim’s body, the rape shield law does not prevent the introduction of evidence to explain the presence of objective signs of intercourse. The Majorana Court held that the defense should have been permitted to introduce evidence to establish that the victim had engaged in consensual intercourse with a codefendant two hours before the alleged rape. See also Commonwealth v. Lyons, 364 Pa.Super. 620, 528 A.2d 975 (1987) (prosecution introduced evidence of child’s blood-spotted panties, thus the issue of how the blood got there was made relevant and the defense was entitled to attempt to show that there was a plausible, contemporaneous alternate explanation for the condition of the panties by way of intercourse between the child and a third party on the day before or after the alleged rape by defendant).

      . If we reached the merits of appellant’s sentencing claims, we would conclude that the trial court did not abuse its discretion. The trial court, during the sentencing proceeding, specifically stated that it was not considering the evidence presented during the trial concerning other criminal acts on the part of the appellant in formulating appellant’s sentence. N.T., December 8,-1989, at 15. Appellant claims that certain statements of the trial court are indicative of the court’s improper consideration of other crimes evidence for sentencing purposes. This language, when viewed in context, has been mischaracterized by the appellant. It is clear that the trial court was commenting on the nature of appellant’s conduct toward the victim of the crime, T.Y., which amounted to a carefully planned and executed series of actions over a significant period of time:
      The Court is also obliged to consider the prospects of rehabilitation, which in this instance, do not appear great. The defendant has not acknowledged responsibility for error. The defendant engaged in a calculated act, a designed and premeditated selection of his victim. The presentence report and the facts produced at trial indicate that this was not the isolated escapade of a rogue. This was a purposeful, wretched act.

        Id. at 19. (emphasis added). Further, appellant argues that the trial court failed to give proper consideration to mitigating factors present in this case. The trial court had before it a detailed presentence report concerning the appellant. Thus, appellant cannot claim that the trial court was unaware of the mitigating factors. Instead, appellant merely argues that the court’s conclusion—i.e., the actual sentence imposed—was inappropriate in light of that information. We would not substitute our judgment for that of the sentencing court, and if we reached the merits of appellant’s claims, we would not reverse the trial court's conclusion.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    577 A.2d 623
    Brian A. GOTWALT t/d/b/a Meghan’s Place, Appellant v. Paul H. DELLINGER t/d/b/a Paul H. Dellinger Insurance Agency and Eastern Mutual Group t/d/b/a Yorktowne Mutual Insurance Company.
    Superior Court of Pennsylvania.
    Argued April 4, 1990.
    Filed July 6, 1990.

      Andrew B. Brown, York, for appellant.
    Thomas F. Meister, York, for Eastern Mut. Group, appellee.
    Before CIRILLO, President Judge, and BECK and HESTER, JJ.
   BECK, Judge:

In this appeal we consider for the first time whether the prothonotary possesses the authority to enter judgment against a plaintiff, pursuant to Pennsylvania Rule of Procedure 1037, based upon the plaintiffs failure to respond to allegations raised in the defendant’s “new matter”.

The relevant facts are as follows. Appellant-plaintiff, Brian A. Gotwalt, t/d/b/a Meghan’s Place (“Gotwalt”), alleges that he purchased a fire insurance policy from appellee-defendant, Eastern Mutual Group, t/d/b/a Yorktowne Mutual Insurance Company (“Eastern”), which provided $50,000.00 coverage for the contents and improvements of his business premises. After a fire at the premises, Gotwalt sought payment under the policy. Eastern denied liability, and on April 4, 1988, Gotwalt filed suit against Eastern and Paul H. Dellinger, t/d/b/a Paul H. Dellinger Insurance Agency, asserting claims of fraudulent misrepresentation and breach of contract. Gotwalt amended the complaint on August 2, 1988, to reflect only the latter claim. Eastern responded by filing an answer and new matter on August 2, 1988. In the new matter, defendant Eastern asserted the defenses of contractual limitation, substantial breach and arson. Gotwalt failed to respond to Eastern’s new matter within the two months following its filing.

Thereafter, Gotwalt’s counsel and Eastern’s counsel engaged in a telephone conversation, during which the possibility of an extension of time to answer the new matter was discussed. On October 7, 1988, Gotwalt’s counsel sent a letter to defendant Eastern’s counsel, which stated that “[a]s per our telephone conversation of October 6, 1988, I hereby request an extension of time in which to file an answer to the new matter of the defendant, Eastern Mutual Group, until October 21, 1988.” Eastern never responded to this letter. Gotwalt alleges that on December 23, 1988, counsel for both parties again communicated on the telephone, during which conversation Eastern’s counsel indicated that he wanted a reply from Gotwalt sometime near the end of the year.

On January 5, 1989, no reply to Eastern’s new matter having been filed, Eastern filed a Praecipe to Enter Judgment against Gotwalt for failure to reply to Eastern’s new matter. On that same day, the Prothonotary of York County entered judgment against Gotwalt. On January 13, 1989, Gotwalt filed a Motion to Strike the Judgment and Petition to Open Judgment. The trial court refused and denied Gotwalt’s Motion to Strike and Petition to Open Judgment. Gotwalt appeals the order.

Gotwalt raises three issues on appeal. Since our decision on the first issue is determinative, we need not address the other issues raised by appellant. Appellant contends that the prothonotary lacked the authority to enter judgment against him pursuant to Pa.R.Civ.P. 1037. We agree.

At the outset, we note that where it is established that the prothonotary has entered judgment against a party beyond his authority, such action is considered void and the judgment entered by him is a nullity and lacks legal effect. Chamberlain v. Altoona Hosp., 389 Pa.Super. 600, 602, 567 A.2d 1067, 1068 (1989); Phillips v. Evans, 164 Pa.Super. 410, 412-13, 65 A.2d 423, 424 (1949). We must now consider whether the prothonotary exceeded the authority extended to him pursuant to Pa.R.Civ.P. 1037.

Initially, we articulate the well-settled proposition that the prothonotary performs ministerial functions only, and is not authorized to engage in judicial functions. Chamberlain, 389 Pa.Super. at 602, 567 A.2d at 1068; Irwill Knitwear Corp. v. Wexler, 229 Pa.Super. 48, 49-51, 323 A.2d 23, 24 (1974). “The prothonotary is merely the clerk of the Court of Common Pleas. He has no judicial powers nor does he have power to act as attorney for others by virtue of his office.” Smith v. Safeguard Mut. Ins. Co., 212 Pa.Super. 83, 86, 239 A.2d 824, 826 (1968). Due to the prothonotary’s purely ministerial status, the authority for his actions derive from either statute or rule of court. Newsome v. Braswell, 267 Pa.Super. 83, 86-88, 406 A.2d 347, 349 (1979). It is asserted that Rule 1037 authorized the prothonotary’s action in the case sub judice. We now consider the text of that statute.

Pennsylvania Rule of Civil Procedure 1037 provides:

(a) If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros.
(b) The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time an answer to a complaint which contains a notice to defend or for any relief admitted to be due by the defendant’s pleadings.
(c) In all cases, the court, on motion of a party, may enter an appropriate judgment against a party upon default or admission.

By its clear and unambiguous language, see 1 Pa.Cons.Stat. Ann. § 1921(b) (Purdon Supp.1989), Rule 1037 empowers the prothonotary to enter judgment in favor of a party in two circumstances only. First, if, for example, after filing a writ of summons against a defendant, a plaintiff fails to file a complaint, the defendant may file a praecipe with the prothonotary asking the prothonotary to enter a rule requiring the plaintiff to file a complaint. Thereafter, if the plaintiff fails to file a complaint within twenty days after service of the rule, the prothonotary shall, upon praecipe of the defendant, enter a judgment of non pros against the plaintiff. See, e.g., Esslinger v. Sun Ref. & Mktg. Co., 379 Pa.Super. 69, 549 A.2d 600 (1988) (prothonotary correctly entered judgment of non pros where plaintiff filed a praecipe for summons against various defendants, but failed to file a complaint after one of the defendants filed a Rule to File Complaint). Second, if a defendant fails to file an answer to a complaint which contains the proper notice to defend, within the requisite time period, the prothonotary shall, upon praecipe of the plaintiff, enter judgment against the defendant. See, e.g., Reichert v. TRW, Inc. Cutting Tools Div., 385 Pa.Super. 416, 561 A.2d 745 (1989) (default judgment correctly entered against defendant who failed to respond within appropriate time to plaintiffs’ complaint, despite fact that plaintiffs filed an amended complaint between time they sent defendant default notice and time default judgment entered).

Rule 1037 does not establish any other circumstances in which the prothonotary possesses the authority to enter judgment against a party. Absent such authorization, we find that the prothonotary acted outside the bounds of his authority in entering the judgment against the plaintiff under the circumstances of this case. See Irwill, 229 Pa.Super. at 49-51, 323 A.2d at 24 (prothonotary lacks authority to examine and interpret content of an answer or new matter); Goodrich-Amram 2d § 1037(c):4, p. 491 (judgment against plaintiff for failure to reply to new matter may only be entered by court, never by prothonotary); 11 Standard Pa. Practice 2d § 68:3, p. 272 (default judgment against plaintiff for failure to reply to new matter may only be entered by court); 11 Standard Pa. Practice 2d § 68:18, p. 293 (prothonotary not permitted to enter judgment against plaintiff for failure to respond to new matter); 4 Standard Pa. Practice § 115, p. 193 (Rule 1037 gives court power to enter judgment against a plaintiff for want of reply to new matter); 4 Standard Pa. Practice § 13, p. 463-64 (under Rule 1037, judgment against a plaintiff for failure to reply may only be entered by court, not prothonotary). See also Haverford Township, School Dist. v. Herzog, 314 Pa. 161, 171 A. 455 (1934).

We maintain that based upon a reading of the Rule and the ministerial nature of the prothonotary’s duties, the action taken by the prothonotary in the instant case far exceeded the authority extended to him pursuant to Rule 1037.

We find further support for our holding in the language of Pennsylvania Rule of Civil Procedure 1029(d), which governs when a party must file a responsive pleading to an averment contained in a new matter or other pleading. Pennsylvania Rule of Civil Procedure 1029(d) provides that “[ajverments in a pleading to which no responsive pleading is required shall be deemed to be denied.” Pa.R.Civ.P. 1029(d). If a party’s new matter does not contain facts supporting an affirmative defense, but rather contains merely conclusions of law, no denial is required because such averments are deemed to be denied. Bowman v. Mattei, 309 Pa.Super. 486, 488-90, 455 A.2d 714, 716 (1983); Slaughter v. Gruntz, 227 Pa.Super. 164, 165-67, 323 A.2d 152, 153 (1974). Because such averments are deemed to be denied, they are, therefore, in issue, and no judgment may be entered based upon a party’s failure to respond to those averments. Slaughter, 227 Pa.Super. at 164, 323 A.2d at 152; Whelan v. Mack, 190 Pa.Super. 40, 41-43, 151 A.2d 797, 798 (1959). In evaluating whether an averment contained in a new matter requires a response, courts must consider whether the averments are fact-based or are merely conclusions of law. As a component of this analysis, courts consider complex and abstract legal principles and utilize a large degree of discretion. See, e.g., Spain v. Vicente, 315 Pa.Super. 135, 141-44, 461 A.2d 833, 837-38 (1983) (new matter which contained statute of limitations defense and qualified privilege for allegedly defamatory statement that was not responded to by plaintiff, required a response; summary judgment appropriate); Watson v. Green, 231 Pa.Super. 115, 117-19, 331 A.2d 790, 791-92 (1974) (averments in defendant’s new matter did not require plaintiff to file a responsive pleading because averments were merely conclusions of law and material contained in defendant’s original answer; plaintiff’s failure to respond to new matter was not ground for judgment on pleadings). As a result of the complexity of these often difficult and highly technical issues, the prothonotary lacks the power to adjudicate these issues. Goodrich-Amram 2d § 1037(c):4, p. 491 (because a request to enter judgment against a plaintiff for failure to respond to new matter requires court to adjudicate whether the averments in the new matter are uncontradicted, prothonotary lacks power to enter such a judgment); 11 Standard Pa. Practice 2d § 68:3, p. 272 (prothonotary not in a position to evaluate content of new matter). See also 11 Standard Pa. Practice 2d § 68:18, p. 293

Because the decision as to whether a response to a new matter is required involves the evaluation of complex legal issues, Rule 1037 does not authorize the prothonotary to make those determinations. To permit the prothonotary to so act would be to permit him or her to act in a judicial, rather than in a ministerial capacity. As a result, we find that the judgment entered by the prothonotary is void and should be stricken from the record. See Maiorana v. Farmers & Merchants Bank, 319 Pa.Super. 338, 341-43, 466 A.2d 188, 190 (1983).

Eastern maintains, however, that the actions of the prothonotary were purely ministerial and did not involve the exercise of discretion. Eastern suggests that in entering judgment against the appellant thé prothonotary merely took note of the following matters of record which were not in dispute:

1. Plaintiffs Complaint was filed on April 5, 1988.
2. The Plaintiffs loss by fire occurred on December 18, 1986.
3. The insurance contract between Plaintiff and Defendant required filing of suit within twelve months after the loss.
4. Defendant raised the limitations period as an affirmative defense.
5. Plaintiff filed no response to the affirmative defense within the time for doing so.

Appellant’s Brief at p. 12.

We note that the first and second items listed by the appellee were not in dispute. However, matters three through five required an evaluation of whether these matters contained factual averments or were merely conclusions of law. Such a determination was not, as appellee characterizes, a “purely ministerial” task, but rather required the evaluation of complex legal issues outside the scope of the prothonotary’s range of authority.

We, therefore, conclude that where a party believes that averments contained in a new matter require a response, and where the opposing party has failed to file such a response in a timely fashion, the proper method for obtaining a judgment against that party is by motion to the court. The prothonotary lacks the authority and the capacity under those circumstances to evaluate the content of the new matter to ascertain whether a response is mandated. “Procedurally, appellee should have filed a motion ... with the court rather than a praecipe with the prothonotary.” Chamberlain, 389 Pa.Super. at 605, 567 A.2d at 1070.

Order reversed. We remand the case for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Preliminary objections are currently pending between Gotwalt and defendant Dellinger. However, the matter in dispute only concerns Gotwalt and Eastern.

      . Gotwalt did file a reply to Eastern’s new matter on January 13, 1989.

      . The prothonotary must also, on praecipe of the plaintiff, enter judgment against the defendant for any relief defendant admits is due in defendant’s pleadings. Pa.R.Civ.P. 1037(b).


author: HESTER, Judge:

text:
    577 A.2d 627
    COMMONWEALTH BANK AND TRUST COMPANY, N.A., Appellant v. John E. HEMSLEY, and Donna L. Hemsley, his wife. Lara E. THOMAS v. COMMONWEALTH BANK AND TRUST COMPANY, N.A. and Marc S. Drier, Appellants.
    Superior Court of Pennsylvania.
    Argued April 3, 1990.
    Filed July 3, 1990.
    Petition for Allowance of Appeal Denied Nov. 5, 1990.

      Marc S. Drier, Jersey Shore, for appellant. Commonwealth Bank.
    L. Waldo Herritt, Jersey Shore, for appellee Thomas, and participating party.
    Before CIRILLO, President Judge, and BECK and HESTER, JJ.
   HESTER, Judge:

Commonwealth Bank and Trust Company, N.A., appeals from the September 20, 1989 order of the Lycoming County Court of Common Pleas which dissolved a lien created by a court order on an escrow account, distributed the proceeds of the account to appellee, and dismissed the motion for contempt filed by appellant. Appellant’s sole issue is whether the protections of the Deficiency Judgment Act may be invoked by a mortgagor against whom the mortgagee has not acquired a personal judgment. The trial court concluded that since appellant-mortgagee had failed to comply with the requirements of the Deficiency Judgment Act, appellee-mortgagor owes no further obligation to appellant under the terms of the mortgage agreement. We concur with the trial court’s ruling and affirm.

The uncontradicted facts may be summarized as follows. In 1982, John and Donna Hemsley applied to appellant for a mortgage. Appellant denied the Hemsleys’ application but after further review, advised them that a loan in the amount of $60,000.00 might be granted if the Hemsleys agreed to pledge their residence in addition to their business property and if appellee pledged her residence as security for the loan. The obligation of appellee was stated in the mortgage as follows:

“It is the intention of the parties to this mortgage that John E. Hemsley and Donna L. Hemsley, his wife, shall be the primary mortgagors and that Russell L. Thomas and Lara E. Thomas, his wife, have joined for purposes of guaranteeing their payment only. It is therefore understood that in the event of default, mortgagee, its successors and assigns, shall exercise its remedies against the within described real estate of the said John E. Hemsley and Donna L. Hemsley his wife, first and only secondly against that of Russell L. Thomas and Lara E. Thomas, his wife.”

Trial court opinion, 9/20/89, at 1.

The Hemsleys subsequently defaulted on their mortgage and in November, 1985, appellant instituted mortgage foreclosure proceedings against them. The Hemsleys then filed for bankruptcy. One of the properties in the debtor estate which was subject to the mortgage agreement between appellant, the Hemsleys and appellee was released from the debtor estate and sold by the trustee in bankruptcy. The proceeds of the sale were applied to the business loan owed to appellant. The bankruptcy court also released the remaining Hemsley property to appellant which began marketing the property for sale.

Appellee then offered her property subject to the mortgage for sale. A buyer was found, but since the property was still encumbered by the mortgage to appellant for the Hemsleys’ business loan, a release from the lien of appellant’s mortgage had to be provided to the buyer before the sale could be consummated. Although appellant initially agreed to this arrangement, the release was not delivered to the buyer. Appellee filed a civil action on July 21, 1987, requesting that appellant be compelled to comply with the terms of their agreement. On July 28, 1987, the court of common pleas ordered appellant to release its mortgage on appellee’s property and further ordered that the net proceeds from the sale be placed in escrow to be distributed once the remaining Hemsley property was sold and the balance of the outstanding business loan determined. Appellant subsequently obtained a judgment in mortgage foreclosure against the Hemsleys and in December, 1987, bought the remaining Hemsley property at a sheriff’s sale for $22,000.00. The purchase price for the property in 1980 was $47,500.00 upon which appellant’s loan for $60,000.00 was based.

Six months later, after the period provided to appellant by the Deficiency Judgment Act to seek recovery of the deficiency still owed on the Hemsley loan had expired, appellee filed a petition pursuant to the same act to have the judgment marked satisfied and the funds from the escrow account released to her. In response, appellant filed a motion for contempt against appellee for failure to satisfy the difference owed on the Hemsley business loan. The trial court joined the two actions and ordered that the lien created by the July 20, 1987 order of court be dissolved, the escrow funds be released to appellee, and the motion for contempt filed by appellant be dismissed. The court determined that appellant’s failure to pursue the deficiency owed on the loan in accordance with the Deficiency Judgment Act resulted in the satisfaction of the Hemsley obligation to appellant. It concluded, therefore, that appellee owes no obligation to appellant under the terms of the mortgage agreement since the Hemsleys are no longer bound by such an obligation. Appellants filed this timely appeal from the trial court’s order.

Appellant first argues that since appellee was not named in the mortgage foreclosure proceeding against the Hemsleys, or indeed in any judgment, she cannot invoke the protections of the Deficiency Judgment Act to release her from her obligation under the note to appellant. Appellant contends that appellee may be pursued separately for the amount of her obligation since she held, as one of the mortgagors, joint and several liability for the debt owed to appellant.

Preliminarily, we note that the scope of our review of deficiency judgment proceedings is limited to a determination of whether there is sufficient evidence to sustain the holding of the trial court, or whether the court committed reversible error of law. First Pennsylvania Bank, N.A. v. Peace Valley Lakeside Community and Agricultural Trust, Inc., 478 A.2d 42, 329 Pa.Super. 218 (1984); Cheltenham Federal Savings and Loan Ass’n v. Pocono Sky Enterprises, Inc., 451 A.2d 744, 305 Pa.Super. 471 (1982).

The purpose of the Deficiency Judgment Act as set forth in Cheltenham Federal Savings and Loan Ass’n v. Pocono Sky Enterprises, Inc., supra, is

to relieve a debtor of further personal liability to the creditor, if the real property taken by the creditor on an execution has a “fair market value”, as of the date of the execution sale, sufficient so that the creditor may dispose of the property to others (or even, sometimes, use it himself) without a net loss to the creditor,

Id., 305 Pa.Super. at 479, 451 A.2d at 748. We also stated that deficiency judgment statutes are to be construed liberally in favor of the debtor. Id., 305 Pa.Super. at 480, 451 A.2d at 749.

Viewing the evidence in accordánce with the established standard and construing the statute consistently with our ruling in Cheltenham, we conclude that the trial court was correct in ruling that appellant’s failure to comply with the Deficiency Judgment Act resulted in the satisfaction of the debt owed by both parties to the note, including appellee.

We begin our analysis by reviewing section 8103 of the Deficiency Judgment Act, 42 Pa.C.S.A. § 8103(a) and (d), which provides as follows:

§ 8103 Deficiency Judgments
(a) General rule.—Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered.
(d) Action in absence of petition.—If the judgment creditor shall fail to present a petition to fix the fair market value of the real property sold within the time after the sale of such real property provided by section 5522 (relating to six months limitation), the debtor, obligor, guarantor or any other person liable directly or indirectly to the judgment creditor for the payment of the debt, or any person interested in any real estate which would, except for the provisions of this section, be bound by the judgment, may file a petition, as a supplementary proceeding in the matter in which the judgment was entered, in the court having jurisdiction, setting forth the fact of the sale, and that no petition has been filed within the time limited by statute after the sale to fix the fair market value of the property sold, whereupon the court, after notice as prescribed by general rule, and being satisfied of such facts, shall direct the clerk to mark the judgment satisfied, released and discharged.

There is no dispute that appellant, the judgment creditor herein, acquired the property owned by the Hemsleys at a sheriffs sale and that the price was not sufficient to satisfy the full amount of the foreclosure judgment. Consequently, appellant could have petitioned the trial court to fix the fair market value of the property sold pursuant to section 8103(a) in an effort to collect the deficiency from appellee. The act, however, requires that such a petition be submitted within six months of the sale of the property, and appellant concedes that it did not file such a petition. Its only argument is that the procedure set forth in section 8103(d) of the act, which provides for the satisfaction and discharge of a judgment in the absence of the filing of a petition by a judgment creditor, is available only to a judgment debtor. Appellant contends that since appellee was not named in the foreclosure judgment it acquired against the Hemsleys, she lacks the necessary standing to utilize the procedure provided in section 8103(d).

Appellant misstates the law. The statute plainly provides that “a guarantor or any person liable directly or indirectly to the judgment creditor for payment of the debt” may file a petition to have the judgment marked satisfied and discharged. 42 Pa.C.S.A. § 8103(d). Although the foreclosure judgment appellant obtained against the Hemsleys did not name appellee, she remained liable on the note she co-signed for the full amount of the loan received by the Hemsleys. Therefore, she clearly qualified as a person directly or indirectly liable to the judgment creditor for payment of the debt and consequently, possessed the standing necessary to petition the court for relief under section 8103(d) of the act.

Having concluded that appellee’s petition to have the judgment on the debt she owed to appellant marked satisfied and discharged was properly before the trial court, we now address appellant’s argument that appellee remains liable on the note despite appellant’s failure to file a deficiency petition. In Valley Trust Company of Palmyra v. Lapitsky, 339 Pa.Super. 177, 488 A.2d 608 (1988), we were faced with similar facts. A bank attempted to recover a deficiency on a note after acquiring the first of three properties securing the debt at a sheriff’s sale. The bank had failed to file a deficiency petition within six months of the sale of the first property, just as in the instant appeal. We concluded that failure to comply with the Deficiency Judgment Act in that manner “creates an irrebuttable presumption that the creditor was paid in full”. Id., 339 Pa.Super. at 182, 488 A.2d at 611. We stated further that the purpose of the act was best served and the debtor better protected if compliance with the act is mandated after the first parcel of secured property is sold. See also First National Consumer Discount Company v. Fetherman, 515 Pa. 85, 527 A.2d 100 (1987) (judgment creditor is deemed to have received full satisfaction in kind of underlying debt obligation if he fails to petition to fix fair market value within statutory six-month period).

Similarly, in Meyer v. Castellucci, 378 Pa.Super. 165, 548 A.2d 554 (1988), we ruled that the failure of the judgment creditor to file a deficiency petition created an irrebuttable presumption that the creditor was paid in full. More importantly, we concluded that the discharge of the judgment debtor on the debt effectively discharged the guarantors or sureties on their collateral undertaking.

We find Valley Trust, Fetherman and Meyer to be dispositive of the question of whether appellee remains liable on the note despite the discharge of the Hemsleys’ obligation. Appellant herein, as in Valley Trust, Fetherman and Meyer, failed to file a deficiency petition within six months of the sale of the first parcel of secured property owned by the Hemsleys. Appellant’s failure to comply with the provisions of the act creates an irrebuttable presumption that it had been paid in full. Appellant’s error resulted in the discharge of the Hemsleys’ obligation and consequently, the discharge of appellee’s obligation as a guarantor on the note.

Appellant next argues that the trial court exceeded its authority by directing that the proceeds of the escrow account be released to appellee, rather than merely ordering that the foreclosure judgment be marked satisfied. While we share appellant’s concern over the trial court’s choice of remedy, we do not believe that the trial court’s actions have prejudiced any substantive interest of appellant. The cases cited previously make it evident that appellant has no chance of recovering the deficiency on the debt from appellee due to its failure to comply with the provisions of the Deficiency Judgment Act. A remand to the trial court would serve no purpose other than to provide appellant with a second opportunity to seek recovery of a debt which appellee no longer owes, or, as we stated in Commonwealth v. Harris, 381 Pa.Super. 206, 218, 553 A.2d 428, 434 (1989), to “prolong the odyssey of this case through the courts of this Commonwealth.” Consequently, we affirm the ruling of the trial court, as we see “no valid substantive or administrative justification to further delay disposition” of this appeal. Id., 381 Pa.Super. at 217, 553 A.2d at 434.

Finally, appellant seeks either a remand for a determination of the fair market value of the property sold at sheriff’s sale or an instruction from us that such relief should be granted. We deny appellant’s request for a remand on the basis of the holdings of Valley Trust, Fetherman and Meyer which require a creditor to file a petition to determine fair market value within six months of the sale of the property. For the same reason, we also deny appellant’s request for an instruction from us regarding such a determination.

Order affirmed.


author: CERCONE, Judge:

text:
    577 A.2d 631
    LOWER LAKE DOCK COMPANY, Hanna Mining Company, and Consolidated Rail Corporation, Appellants, v. MESSINGER BEARING CORPORATION and Eastern Flame Hardening Company.
    Superior Court of Pennsylvania.
    Submitted April 9, 1990.
    Filed July 6, 1990.

      Frank C. Bender, Philadelphia, for appellant.
    Robert Keller, Philadelphia, for Messinger Bearing, appellee.
    Robert C. Mickle, Jr., Philadelphia, for Eastern Flame, appellee.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment docketed after the trial court entered an order dismissing appellee Eastern Flame Hardening Company, (hereinafter referred to as “Eastern Flame”), from this case. We affirm.

On March 14, 1983, appellants brought an action against Messinger Bearing Corporation, (hereinafter referred to as “Messinger”), and Eastern Flame. The complaint contained three counts against Eastern Flame. These counts were based on negligence, strict liability, and breach of warranty. On April 20, 1987, Eastern Flame filed a motion for partial summary judgment on the negligence and strict liability counts. In their answer to the motion for partial summary judgment: (1) appellants admitted that the strict liability should be dismissed; (2) appellants further admitted that there was no cause of action as to the breach of warranty count, even though Eastern Flame did not include this count in the motion for partial summary judgment; and (3) appellants alleged that Eastern Flame nonetheless was liable under the negligence claim. On July 2, 1987, the trial court entered an order dismissing both the negligence and strict liability counts. Appellants did not immediately appeal this order.

Eastern Flame filed a motion for summary judgment as to the remaining breach of warranty count. On October 28, 1988, the trial court entered an order denying this motion on the basis that material disputes still remained. On July 17, 1989, when this case was called for trial, Eastern Flame renewed its motion for summary judgment. The trial court granted summary judgment on the remaining count thereby dismissing this action. After judgment was entered against them, appellants then appealed the July 2, 1987 order of court dismissing the first count with regard to the cause of action in negligence.

Initially, we must determine whether this appeal is properly before us. The appealability of an order is a question of jurisdiction and may be raised sua sponte. Blackman v. Katz, 390 Pa.Super. 257, 261, 568 A.2d 642, 645 (1990). Appeals can generally be taken only from orders that are final, rather than interlocutory. Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 533 A.2d 998 (1987). As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable; however, where the dismissed counts are separate and distinct causes of action, the order is appealable. Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 573 A.2d 1116 (1990). As we stated in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983):

Where separate and distinct causes of action have been joined under permissive joinder standards of Pa.R.C.P. 1020(a) or Pa.R.C.P. 1044(a), the appealability of a judgment entered on one or more but not all counts must be distinguished from the situation in which separate counts have been used to state alternate theories for recovery on the same cause of action. In the former situation the summary judgment has terminated litigation upon a separate and distinct cause of action. In the latter, an order dismissing or entering judgment on one or more but not all counts of a complaint is interlocutory, for the plaintiff can, nevertheless, proceed to a determination on the underlying cause of action____ Thus, the dismissal of a count alleging damages for breach of an express contract is not appealable if an alternate count seeking to recover the same damages based on quantum meruit remains undecided____ Similarly, there is no final appealable order where a count averring negligence has been dismissed, but there remains undetermined a count alleging liability for a defective product under Section 402A of the Restatement (Second) of Torts, (citations omitted).

Id. 313 Pa.Super. at 341, 459 A.2d at 1260 (1983). Where counts of a complaint setting forth claims under Section 402A of the Restatement (Second) of Torts were dismissed, but breach of contract including breach of warranties claims for the same damages remained to be determined, neither plaintiff nor its damage claim was out of court and an order dismissing 402A counts was interlocutory and unappealable. R.B. Equipment v. Williams, Shields, Snyder & Goas, 304 Pa.Super. 31, 450 A.2d 85 (1982).

In the instant case, appellants’ claims of negligence and strict liability under Section 402A were dismissed in 1987. Since appellants' breach of warranty claim for the same damages remained to be determined, neither appellants nor their damage claim was out of court. Id. We find that the July 1987 order was interlocutory and unappealable. Id. The trial court entered a final appealable order in August, 1989, when the appellants were put completely out of court. Blackman v. Katz, supra. Thus, the appeal presently before us, from the July 1987 order is timely.

On appeal, appellants raise the sole issue of whether the trial court erred in granting Eastern Flame’s motion for partial summary judgment and dismissing the negligence count against Eastern Flame. Appellants allege that Eastern Flame is liable for its negligent failure to perform its contractual undertaking to render, with reasonable care, heat treatment services to the bearing in question.

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 104, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file support the lower court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. No. 1035, 42 Pa.C.S.A.; Hatter v. Landsberg, 386 Pa.Super. 438, 440, 563 A.2d 146, 147-48 (1989). See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before lower court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

The facts underlying the instant case are as follows. Appellants contracted with appellee Messinger to manufacture and sell a replacement “X” roller bearing and housing with pinions to be installed as a replacement bearing on a bucket wheel stacker reclaimer used in operations conducted at a coal handling dock. During the course of manufacture of the bearing, the Franklin Institute Research Laboratory developed quality control standards on behalf of appellants. Messinger retained Eastern Flame to provide heat treatment services for hardening the races of the bearing as required by the quality control standards. After Eastern Flame performed the heat treatment, they returned the outer race of the bearing to Messinger. Messinger then delivered the treated product to appellants. Appellants installed the bearing in the bucket wheel stacker reclaimer and placed it in service on February 2, 1980. On September 30, 1981, the bearing completely failed causing economic damages associated with developing specifications for the bearing, initial installation of the bearing, replacement of the bearing, and installation of the replacement. There was neither any additional loss of property nor any personal injury as a result of the failure of the bearing.

Appellants begin their argument by contending that this is a case of negligence as opposed to a products liability action. In making this distinction, appellants hope to circumvent the well-established rule that we set forth in REM Coal Co., Inc. v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128 (1987) (en banc). In REM Coal, the issue was whether there could be a recovery in tort where a product malfunctions because of an alleged defect in the article and causes damage to the product itself and consequential damages in the nature of cost of repair or replacement or lost profits, but the malfunction causes no personal injury and no injury to any other property of the plaintiff. We concluded in REM Coal that negligence and strict liability theories do not apply to actions between commercial enterprises where the only damage is to the product itself. In reaching this conclusion we adopted the rationale of the United States Supreme Court in East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). As we explained in N.Y. State Electric & Gas v. Westinghouse, 387 Pa.Super. 537, 564 A.2d 919 (1989):

[In the East River case, the Supreme Court] emphasized that where an allegedly defective product causes damage only to itself, and other consequential damages resulting from the loss of the use of the product, the law of contract is the proper arena for redressing the harm because in such a case, the damages alleged relate specifically to product quality and value as to which the parties have had the opportunity to negotiate and contract in advance. They have allocated the risks of possible types of losses, and agreed on the level of quality that will be given for the price demanded. When the product fails to conform and only economic losses result, the parties’ recovery one against the other for economic losses should be limited to an action on that contract and no additional recovery in negligence or strict liability is permitted.

Id. 387 Pa.Super. at 550-51, 564 A.2d at 925-26. Thus, appellants’ distinction is without meaning. Our decision in REM Coal is not limited to products liability, but has equal application in negligence cases.

Appellants place great emphasis on dicta in REM Coal to support their contention that we did not contemplate that a plaintiff in appellants’ position would be left without a remedy. Specifically, after setting forth the issue in REM Coal, we stated: “Obviously, the question is not whether a plaintiff in such a case is entitled to a recovery at all, but rather whether a cause of action in tort, as opposed to one sounding solely in contract, is an appropriate vehicle for obtaining such a recovery.” Appellants’ reliance on this statement is misplaced. It is as a result of their own actions that appellants find themselves without a remedy in the instant case.

Appellants’ actual cause of action was based on their contractual relationship with Messinger. Messinger, in turn, had a cause of action against Eastern Flame. For reasons not apparent in the record, appellants allowed their claims against Messinger to be non prossed when they failed to obey a court order which required appellants to comply with Messinger’s discovery requests. Thus, instead of appellants being able to pursue their true cause of action against Messinger, they are left without recourse because Messinger is no longer a party to this lawsuit. Under the circumstances of this case, we cannot provide appellants with a remedy where their own actions have foreclosed that possibility and led them to their present situation.

Finally, appellants argue that Section 324A of the Restatement (Second) of Torts should apply. That provision states:

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 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
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Citing Evans v. Otis Elevator Company, 403 Pa. 13, 168 A.2d 573 (1961) as authority, appellants correctly point out that the essential provisions of this section have been the law of Pennsylvania for many years and that the provisions have been applied on numerous occasions by appellate courts. However, appellant does not cite, nor does our research uncover, any situation in which Section 324A has been applied to purely economic losses. In each of the cases cited by appellants, Section 324A was applied when there were personal injuries or damage to other property of the plaintiff. None of these cases involve a situation where an allegedly defective product causes damage only to itself, and in other consequential damages resulting from the loss of the use of the product. Even the two cases appellants cite as applying Section 324A to situations involving property damage only, Doyle v. South Pittsburgh Water Company, 414 Pa. 199, 199 A.2d 875 (1963) and Printed Terry Finishing Company, Inc. v. City of Lebanon, 274 Pa.Super. 277, 372 A.2d 460 (1977), involved damage to property other than the defective product itself. Thus, we find that the trial court did not commit any error of law or clear abuse of discretion in dismissing appellants’ negligence claim against Eastern Flame. To the contrary, we agree with the trial court’s resolution of this case.

Order affirmed.

      . On November 7, 1986, the trial court entered an order of non pros against appellants in favor of Messinger. No appeal was taken from that order. Messinger, therefore, is no longer a party to this action.