author: ROBERTS, Judge: BROSKY, Judge,

text:
    505 A.2d 1002
    COMMONWEALTH of Pennsylvania v. James SPARKS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed March 5, 1986.

      Louis A. Perez, Jr., Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, BROSKY and ROBERTS, JJ.
   ROBERTS, Judge:

This is an appeal from a judgment of sentence after convictions for rape and aggravated assault. Appellant was sentenced to concurrent terms of imprisonment of five to ten years on the aggravated assault charge and eight to twenty years on the rape conviction. We affirm.

Viewed in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Sudler, 496 Pa. 295, 302, 436 A.2d 1376 (1981), the evidence establishes that the complaining witness, Dana Dangerfield, was acquainted with appellant for approximately two months before the events which led to the instant charges. On August 4, 1982, she accompanied him from Philadelphia to New Jersey to buy a car. While there, appellant also bought a watch for Ms. Dangerfield. Upon their return to Philadelphia, the witness accepted appellant’s invitation to watch television at his apartment. After about ninety minutes, she rose to leave. Appellant turned off the television and advanced towards her. He bent her arm backwards and pulled her into his bedroom, saying, “I didn’t buy the watch for nothing.” In the bedroom, appellant pushed Ms. Dangerfield to the bed. She tried to kick him, but he punched her in the left jaw. It was later discovered that the jaw was broken. Then she tried to scratch him, but he kicked her in the head with his knee. Then he choked her and struck her in the left ribs. Finally, appellant had sexual intercourse with his now helpless victim.

Appellant contends that the trial court erred in failing to merge the crimes of rape and aggravated assault for sentencing purposes. In Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) (en banc), this Court held that merger is required only when two prerequisites are met. First, the crimes must “necessarily involve” one another. According to Williams, supra.:

When courts decide under the merger doctrine that two crimes “necessarily involve” one another, ... [i]t means that on the facts of the case the two crimes were so intimately bound up in the same wrongful act that as a practical matter proof of one crime necessarily proves the other, so that they must be treated as the same offense. See, e.g., Commonwealth v. Jackson, 271 Pa. Super. 131, 412 A.2d 610 (1979); Commonwealth v. Richardson, 232 Pa.Super. 123, 334 A.2d 700 (1975). If the same facts show that practically speaking there was only one offense against the Commonwealth, then the defendant may be punished for only one offense despite the number of chargeable offenses arising out of the transaction. See, e.g., Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981); Commonwealth v. Artis, 294 Pa. Super. 276, 439 A.2d 1199 (1982); Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980).

Second, the Williams court said, even if the two crimes “necessarily involve one another” they do not merge “if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest,” id., 344 Pa.Superior Ct. at 128, 496 A.2d at 42. To determine whether multiple offenses involve substantially different interests, the sentencing court must examine both the language of the particular statutes and the context in which each statute appears in the Crimes Code, 18 Pa.C.S.A., id. at 50.

We need not decide whether appellant’s conduct which amounted to rape “necessarily involves” his aggravated assault because we conclude that appellant’s conduct has clearly injured separate interests of the Commonwealth. Initially, we note that the gravamen of aggravated assault is the intentional infliction of serious bodily harm upon an individual, while the essence of rape is sexual intercourse by forcible compulsion.

Obviously, both statutes protect against injuries resulting from intentional use of force. But each proscription protects against different injuries. The statute prohibiting aggravated assault protects against serious bodily injury, which the legislature has defined as:

Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. 18 Pa.C.S.A. § 2301.

The prohibition of rape protects against the shock, horror, and egregious invasion of privacy engendered by an act of forcible sexual intercourse. Not only did appellant’s actions here invade the victim’s privacy and require her to suffer extreme humiliation, the evidence also established that they caused great physical injury to her jaw, ribs and neck. Cf. Commonwealth v. Bullock, 259 Pa.Super. 467, 473, 393 A.2d 921 (1978). As the Williams court wrote, “Once a defendant commits an original crime, he is not permitted to compound the injuries he inflicts and then escape liability under the guise that they were all done in the same criminal transaction,” id., 344 Pa.Superior Ct. at 127, 496 A.2d at 42. As such, there can be no dispute that the instant conduct injured substantially different interests of the Commonwealth.

We make no attempt to envision all of the possible fact situations involving the crimes of rape and aggravated assault. As Judge Cirillo wrote in Williams, “merger is rarely a rule to be mechanically applied; it usually demands careful scrutiny of the particular facts and charges on which the defendant is being sentenced,” supra at 44. We hold that where, as here, the injury to the Commonwealth’s interests in protecting individuals from serious bodily harm is clearly separable from the injury to other interests, the offenses need not merge.

Appellant next contends that the prosecutor, during her closing argument, improperly conveyed her personal belief regarding Ms. Dangerfield’s credibility. Appellant specifically objects to two statements, one in which the prosecutor said “[s]he was honest, she was credible and she was candid,” and another where the prosecutor said, “[s]he was candid and honest, brutally honest.”

It is well-settled that a prosecutor cannot express a personal belief regarding the evidence at trial, Commonwealth v. Beasley, 504 Pa. 485, 492, 475 A.2d 730 (1984), Commonwealth v. Carey, 313 Pa.Super. 20, 31, 459 A.2d 389 (1983). A prosecutor must limit closing argument to facts and legitimate inferences from the facts, Commonwealth v. Brown, 489 Pa. 285, 298, 414 A.2d 70 (1980). Such argument may include references to the credibility of witnesses, Commonwealth v. Carey, supra. Further, a lawyer’s comments to a jury will not be reviewed in isolation, but will be assessed in the context in which they were spoken, Commonwealth v. Carey, supra, Commonwealth v. Martin, 307 Pa.Super. 118, 124-5, 452 A.2d 1066 (1982).

Here, placing the prosecutor’s remarks in context reveals that they were not improper but were fair comments based on the evidence of record. The first statement reads:

Try to remember, and I am sure you can, because you were all listening very attentively when Miss Daingerfield (sic) was on the stand, how she appeared. Forget about my questioning her for the moment, but how she appeared when Mr. Perez questioned her. Remember her, she was unflappable. Her story didn’t change one iota. He could not impeach her. He could not destroy her. She was too real. She was honest, she was credible and she was candid.

Similarly, the propriety of the prosecutor’s second statement is illuminated by the context in which it appears:

Another thing I want you to remember that she said, besides admitting that she might have been naive in staying there and a little idealistic about believing in him. What did she say? Remember she said on the witness stand, “I trusted him.” Who did she look at when she said, “1 trusted him?” She looked at him, right at him. You can’t beat a witness like that. She was candid and honest, brutally honest. By the way, all those responses were given, I noted, on cross-examination. That means Mr. Perez elicited them through his own questioning.

In both instances, the prosecutor is involved in an assessment of the credibility of the Commonwealth witness. She directed the jurors’ memories to defense counsel’s cross-examination, and urged them to recall the witness’ demeanor on the stand. While we would never find a witness credible as a matter of law based on the intangibles she displays while testifying, neither can we say that those intangibles are irrelevant in the jury’s determination of credibility. Cf. Quercia v. United States, 289 U.S. 466, 468, 53 S.Ct. 698, 698, 77 L.Ed. 1321 (1933). We conclude that the statements to which appellant has objected were not expressions of personal belief, but when read in context, were part of a larger argument based on the observable events at trial, and designed to persuade the jury that the witness deserved to be believed.

Next, appellant argues that the trial court abused its discretion by permitting the jury to take into the jury room, during deliberations, photographs taken of the victim shortly after the incident. After the jury had been deliberating for over an hour, it requested to see the seven photographs which were admitted as evidence: three depicted appellant’s bedroom, two showed the scratches on the victim’s neck, and two were frontal views of the victim. In particular, the jury wanted to see the scratches on the victim’s neck. The court released the pictures of the scratches and of the scene, but refused to send out with the jury the frontal views after appellant’s counsel objected and the forewoman announced that the jury did not need them.

Pa.R.Crim.P., Rule 1114 provides that “the jury may take with it such exhibits as the trial judge deems proper.” Thus, whether an exhibit should be allowed to go out with the jury during deliberation is within the discretion of the trial judge, Commonwealth v. Merbah, 270 Pa.Super. 190, 196, 411 A.2d 244 (1979). We find no abuse of that discretion on this record. The court was careful to release only those photographs necessary to aid the jury in its deliberations. Moreover, the photographs which were released were relevant, admitted into evidence, and requested by the jury. As such, the possibility that the court’s decision would prejudice appellant was at best minimal.

Finally, appellant submits that the trial court’s charge regarding reasonable doubt was erroneous because the court did not instruct the jury that it could convict appellant only if “each and every element has been proven to each juror’s satisfaction beyond a reasonable doubt.”

We are not troubled by the trial court’s claimed omission. An appellate court assessing the charge of a trial court will review the charge as a whole, Commonwealth v. Davis, 331 Pa.Super. 285, 301-2, 480 A.2d 1035 (1984). The trial court instructed the jury that the Commonwealth must prove “each and every element of its charge or charges beyond a reasonable doubt.” It also instructed that the verdict must be unanimous. Since the charge covered both the principles of unanimity and proof beyond a reasonable doubt, there was no error in the court’s failure to merge the two into a single instruction.

Judgment of sentence affirmed.

BROSKY, J., filed a concurring opinion.

BROSKY, Judge,

concurring:

Although I agree with the result reached by the majority, I disagree with the majority’s analysis of the merger issue.

This is not a case in which the crimes grew out of the same physical act. If it were, then discussion of whether or not appellant’s conduct clearly injured separate interests of the Commonwealth would be appropriate. This is, rather, a case in which separate physical acts were involved: (1) punching the victim in the jaw, thereby breaking it, and (2) forcibly engaging in intercourse with the victim. In such a case as this, in which the crimes arise out of the same criminal transaction or episode, but not the same physical act, the relevant and sole inquiry is whether the two crimes necessarily involve one another, such that proof of the same facts will prove both crimes. Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985).

In the instant case, the jury could have found appellant guilty of rape by engaging in sexual intercourse with the victim by threat of forcible compulsion or by forcible compulsion which did not cause serious bodily injury. It was not necessary for the jury to have found that appellant caused serious bodily injury to the victim in order to find him guilty of rape. On the other hand, the jury would have been justified in finding that appellant caused serious bodily injury to the victim (the broken jaw) without finding that he engaged in sexual intercourse with her. Utilizing this analysis then, I agree that the two offenses do not merge.

      . The relevant portion of the aggravated assault statute, 18 Pa.C.S.A. § 2702 reads:
      (a) Offense defined. — A person is guilty of aggravated assault if he:
      (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

      . The rape statute, 18 Pa.C.S.A. § 3121, provides:
      A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
      (1) by forcible compulsion;
      (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
      (3) who is unconscious; or
      (4) who is so mentally deranged or deficient that such person is incapable of consent.

      . Indeed, both statutes are contained within Article B of the Pennsylvania Crimes Code, 18 Pa.Cons.Stat.Ann., Article B.

      . I also note a possible conflict between the majority opinion and Commonwealth v. Kozrad, 346 Pa.Super. 470, 499 A.2d 1096 (1985), in that Kozrad indicates that there are two tests for merger currently employed in Pennsylvania, while the majority opinion seems to indicate that there is only one test to be used in all instances.

      . The result reached by our court is inconsistent with the result reached by the court in Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 17 A.2d 190 (1941); however, as noted in Williams, "the question of merger will often turn on an appraisal of the precise facts of the case.” 344 Pa.Superior Ct. at 143, 496 A.2d at 50.


source: Caselaw Access Project

author: POPOVICH Judge: MONTEMURO, Judge,

license: Public Domain

text:
    505 A.2d 1007
    Patricia HUDGINS v. JEWEL T DISCOUNT STORE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed March 10, 1986.

      Charles W. Craven, Philadelphia, for appellant.
    Lynda M. Scher, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   POPOVICH Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying a petition to open judgment. We reverse and remand.

On April 19, 1984, the plaintiff/appellee, Patricia Hudgins, filed a complaint in trespass alleging that she sustained injuries when she fell on “slippery and/or sticky substances remaining on the floor” of the defendant/appellant, Jewel T Discount Store, in Philadelphia, Pennsylvania. Further, the complaint contained a standard notice to defend informing the defendant that if it did not take action within twenty days of service of the complaint, a judgment might be entered against it.

Service of the complaint was made by the Sheriffs Office at the defendant’s Philadelphia store on April 24, 1984 by handing the document to the manager, Henry Hubbs. When no response was forthcoming from the defendant, counsel for the plaintiff sent a Notice of Intention to Take Default Judgment on May 18, 1984. The notice was mailed to the same address as the complaint was served, and the return receipt indicated that it was received by the manager/Hubbs on May 21, 1984.

When the defendant failed to act within the ten-day period recited in the notice, the plaintiff sought and was granted a default judgment on May 30, 1984.

The defendant filed a petition to open on June 5, 1984. Therein, it was alleged by the defendant that Hubbs had forwarded the complaint “within a few days” after its receipt to the district office in Blue Bell, Pennsylvania. Next, the defendant averred that the complaint was never received by its office in Blue Bell, and, if its district manager in Blue Bell had received the complaint, the information would have been sent on to its Chicago-based Special Services Department. Further, the defendant stated that a representative of Special Services had advised it that, as of June 4, 1984, the complaint had not yet been received.

In the remaining portion of the petition, as is relevant here, the defendant admitted receiving notice of the plaintiff’s intention to seek a default judgment, but, it contended, Special Services was not advised of this fact until one day after the entry of the default judgment. Likewise, according to the defendant, the failure to act promptly was caused by the complaint allegedly being “lost in the mail between Blue Bell, Penna. and Chicago, Illinois.”

After the plaintiff submitted a response to the petition to open, the court denied the defendant’s request for relief. This appeal followed.

It is well settled that a petition to open a judgment is an appeal to the equitable powers of the court and will not be overturned on appeal absent an error of law or a clear, manifest abuse of discretion. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). Prior to granting a petition to open in a trespass action, the petitioner must establish that: (1) the petition was promptly filed after the judgment was entered, and (2) a legitimate explanation exists for the default. If the equities are otherwise clear, a meritorious defense need not be demonstrated. Hutchings v. Trent, 304 Pa.Super. 376, 450 A.2d 729 (1982).

In regard to the promptness with which the petition to open was filed, we do not take issue with the lower court’s determination that, because it was filed within six days after entry of judgment, it was timely. However, the same result does not obtain in respect to the second prong, and the reason is that certain facts set forth in the petition were denied by the plaintiff. This put the burden of proof upon the moving party, i.e., the party asking that the judgment be opened. D’Amore v. Erthal, 421 Pa. 417, 219 A.2d 674 (1966).

Instantly, the defendant alleged in its petition to open at points 2-4 that Hubbs mailed the complaint to the district manager in Blue Bell within a few days of its receipt, and that neither the district manager nor its Special Services Department in Chicago, to whom the complaint would have been forwarded by the district manager, had ever received the document.

Contrary to the position taken by the lower court and the defendant, the record refutes their assessment that the plaintiff did not dispute the factual allegations set forth in the defendant’s affidavits submitted in support of points 2-4 of the petition to open. In particular, counsel for the plaintiff filed a “Response to Defendant’s Petition to Open Default Judgment” on June 26, 1984. As is relevant to the case at bar, the plaintiff answered the contentions of the defendant by averring that as to points “2-4[, tjhese allegations are deemed denied pursuant to the Pennsylvania Rules of Civil Procedure. Strict proof is demanded at time of trial.”

Moreover, our scrutiny of the record has failed to uncover the affidavits referred to by the lower court and the defendant in support of the allegations concerning the manner in which the complaint was purportedly lost in the mail. Although the defendant has reproduced the affidavits in its brief to us, and even though unchallenged by the plaintiff and made reference to by the lower court, we are precluded from basing our disposition on such affidavits. Rather, we are required to base our ruling “on what is in the record.” Commonwealth v. Rini, 285 Pa.Super. 475, 483, 427 A.2d 1385, 1390 (1981). Accord Sotak v. Nitschke, 303 Pa.Super. 361, 449 A.2d 729 (1982) (POPOVICH, J.).

As the case stands, the appellee’s answer to the petition denied the factual allegations (Points 2-4) of the appellant’s petition and demanded strict proof thereof. Therefore, as our Court has held in the past in this situation, “when a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof. Johnson v. Leffring, 211 Pa. Super. 84, 235 A.2d 435 (1967).” Hutchings v. Trent, supra, 304 Pa.Super. at 380, 450 A.2d at 731. The manner in which such proof is to be established is set forth in Pa.R.Civ.P. 209; it was not complied with in this case.

Rule 209 reads:

If, after the filing and service of the answer, the moving party does not within fifteen days: (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

As a corollary to the aforesaid, our Courts have ruled that the onus is on the petitioner to support his allegations of fact by depositions, Retzbach v. Berman, 222 Pa.Super. 523, 294 A.2d 917 (1972), a burden which cannot be avoided by substituting an ex parte affidavit unless the respondent either files no answering affidavit or does not deny the veracity of the facts recited in the petition or affidavit. Buxbaum v. Peguero, 335 Pa.Super. 289, 295, 484 A.2d 137, 140 (1984). This is not the case here.

Accordingly, only after petitioner is ruled to proceed, and fails to take depositions or order the cause for argument on the petition and answer, will the factual averments of the respondent be taken as true. Smith v. Dale, 405 Pa. 293, 296, 175 A.2d 78, 80 (1961).

In the instant case, when the lower court ruled on the petition, neither party had taken any action under Rule 209. The petitioner had not taken depositions or ordered the cause for argument on petition and answer, and the respondent had not served a rule on petitioner to show cause why depositions should not be taken or the matter ordered for argument on the petition and answer. See Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983).

Based on the petition and answer alone, the court refused to open the default judgment. This decision was clearly premature. See Instapak v. S. Weisbrod Lamp & Shade, 248 Pa.Super. 176, 374 A.2d 1376 (1977). We also find the decision in Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979), to be similar in substance to the one at bar and look to it for guidance.

In Shainline, an assumpsit action was commenced seeking payment from the appellant for services rendered by the appellee. Service of the complaint was made upon the appellant, who, in turn, mailed the complaint to his counsel. The complaint apparently did not reach its destination until six days after an answer was due. This same day a default judgment was secured by the appellee, and this was followed four days later by a petition to open. An answer was filed by the appellee denying the factual allegations in the appellant’s petition that the complaint was supposedly “mishandled” in the mails and delivered to another office in the same building in which his attorney was located. The court disposed of the matter on petition, answer and briefs against the appellant.

On appeal, this Court found that the lower court acted prematurely in not allowing the Rule 209 machinery to be utilized in resolving the disputed factual averments. This Court stated the proposition thusly:

Instead of waiting for either party to take action under the rule, the court decided the petition on petition and answer alone. The court stressed in its opinion that appellant had “failed to present any evidence whatsoever in support of its various allegations”. Opinion at 3. This conclusion was clearly premature under Rule 209. The rule places no time limits on either petitioner or respondent to take action and thus, at the time the court injected itself into the proceedings, either party had the option to take a rule on the other to proceed under Rule 209. Maurice Goldstein Company, Inc. v. Margolin, 248 Pa. Super. 162, 374 A.2d 1369 (1977) (lower court, in premature decision, held petitioner had failed to substantiate his allegation that he had no notice of complaint; remanded for proceedings under Rule 209 to give petitioner opportunity to supply proof); Zinck v. Smashy’s Auto Salvage, Inc., 250 Pa.Super. 553, 378 A.2d 1287 (1977); Instapak Corp. v. S. Weisbrod Lamp and Shade Company, Inc., 248 Pa.Super. 176, 374 A.2d 1376 (1977); cf. D'Amove v. Erthal, 421 Pa. 417, 219 A.2d 674 (1966). Until one of the parties took action under Rule 209, or until some other force spurred matters along, the court should not have acted. We therefore find it necessary to remand for further proceedings to allow appellant to prove his allegations under the procedures of Rule 209.

266 Pa.Super. at 137-138 & n. 5, 403 A.2d at 577 & n. 5. Accord Triffin v. Thomas, 316 Pa.Super. 273, 462 A.2d 1346 (1983).

In light of Shainline, we find that the lower court acted prematurely in attempting to resolve the dispute since the procedures present in Rule 209 had been triggered. Thus, the lower court could not properly have acted on the appellant’s petition. This necessitates a remand to place the case on track in accordance with the case law interpreting Rule 209. See Philadelphia City Employees Federal Credit Union v. Bryant, 310 Pa.Super. 526, 456 A.2d 1060 (1983). Prior to doing so, however, we deem it proper to note two points. The first is in regard to the fact that Hubbs utilized the mail service to send the complaint to his district manager. We believe that the alleged non-delivery of the complaint should not be blamed upon the appellant, a matter which may more properly be delved into upon remand in the context of depositions submitted by the appellant’s employees.

Nonetheless, at this stage, we believe it appropriate to mention that in a similar context this Court has been reluctant to find fault by the petitioner seeking to open a default judgment where an excuse of mail loss, as to the forwarding of a complaint, was asserted. See Brown v. Great Atlantic & Pacific Tea Co., 314 Pa.Super. 78, 87, 460 A.2d 773, 776 (1983), wherein this Court was confronted with a claim by the petitioner/corporation that when the complaint was forwarded by its store manager to corporate headquarters, the delivery service lost it. We stated on this issue:

If the delivery service was operated by appellant’s own employees, it might be said that the loss was appellant's fault. However, it appears that the service was an independent carrier, which, after picking up mail, took it to its own “depot or headquarters, and from there it is then redistributed to A & P, and the proper stores, offices, et cetera.” Deposition of Boyle at 13.

314 Pa.Super. at 84, 460 A.2d at 776. The facts at bar do not deviate from those recited in Brown as to the manner in which the complaint was sent by a store manager to his superior and some how was lost in the mails. The appellant should not be penalized by the asserted ineptness of the carrier service used to deliver the complaint. To hold otherwise would be contrary to Brown.

The second point we wish to make is in reference to the time lapse between the satisfaction of the appellee’s Pa.R. Civ.P. 237.1 obligation, i.e., notification to the appellant that if no action were taken on the complaint a default judgment would be entered against it within ten days of the date of the Rule 237.1 notice. The notice was mailed and dated May 18, 1984. When no response arrived from the appellant as requested, judgment by default was entered on May 30, twelve days after the notice.

Since the return receipt signed by Hubbs indicates that the Rule 237.1 notice was received on May 21, we are not unmindful of the fact that a strict reading of Rule 237.1 requires only that no judgment by default can be entered upon praecipe to the prothonotary unless notice of the intention to enter the default is mailed or delivered by the petitioner “at least ten days prior to the date of the filing of the praecipe” to the non-moving party. This appears to have occurred here.

However, consistent with the principle against endorsing the securement of “snap judgments”, and the policy of not permitting entry of default judgments “so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant”, see Kraynick v. Hertz, 443 Pa. 105, 111, 277 A.2d 144, 147 (1971), we will not affirm a default judgment where the equities indicate otherwise. See Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982), allocatur denied 9/-/82.

Having made the preceding observations, we conclude that the order denying the appellant’s petition to open judgment was prematurely entered. Accordingly, we reverse and remand for proceedings in accordance with this Opinion. Jurisdiction is relinquished.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

Because I am of the opinion that a reversal and remand is both unwarranted and unnecessary in light of the particular circumstances before us, I must dissent.

Appellant’s petition to open the default judgment alleged at paragraphs 2-4:

2. Henry Hubbs, the manager of the local Jewel T Grocery store, advised defendant’s counsel on June 4, 1984 that he believes that he received the Complaint on or about April 24, 1984 and [forwarded it] within a few days to the district office in Blue Bell, Penna. (Affidavit to be supplied)
3. Ronald Tietgins, the district manager of Jewel T Grocery Store, advised defendant’s counsel that if he received the Complaint from the local store he would have forwarded it to the Special Services Department of Jewel Companies, Inc. within a few days of receipt. (Affidavit to be supplied)
4. Miria Gasparro, a representative of the Special Services Department, advised that Special Services had not received a copy of the Complaint as of June 4, 1984. (Affidavit to be supplied)

In responding to appellant’s petition, appellee, in effect, refuted the allegations contained in paragraphs 2-4. The court below subsequently denied appellant’s petition and, on appeal, the bulk of appellant’s argument is that the court below erred in ruling that appellant failed to offer a reasonable excuse for its default.

The majority sua sponte holds that the allegations of paragraphs 2-4, when considered in conjunction with appellee’s responsive refutation, triggered the procedures set forth in Pa. R.C.P. 209 and that the noncompliance with Rule 209 rendered the decision of the court below, with respect to appellant’s petition to open, “premature.”

It appears to me that the majority’s decision to reverse and remand this case is premised upon the supposition that not only are the allegations of paragraphs 2-4 “in dispute” but indeed that they are “material”. The rationale behind the majority’s decision therefore reveals itself as a concern for the appellant/petitioners right to assert clear and convincing proof of these “material” allegations. Any other interpretation of the majority’s disposition would seem to imply an unnecessary exaltation of procedural formality.

The majority relies upon Instapak v. S. Weisbrod Lamp & Shade Co., Inc., 248 Pa.Super. 176, 374 A.2d 1376 (1977), and Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979).

In Instapak, this court reversed an order opening a default judgment. Therein, the petition to open the default judgment and the answer to that petition placed into dispute a “dispositive issue”: “[W]hether appellee’s counsel did or did not have a mistaken belief about the date by which an answer had to be filed____” Instapak, [248 Pa.Super.] at 182, 374 A.2d at 1379. We concluded that the action taken by the lower court, solely on the basis of the allegations contained in the petition and the answer, was premature and we remanded the case for proceedings consistent with Rule 209.

In Shainline, this court reversed the denial of a petition to open a default judgment. We noted, “When a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof. Johnson v. Leffring, 211 Pa.Super. 84, 235 A.2d 435 (1967). The procedure for establishing such proof is provided by Pa.R.C.P. 209; [ ] it was not followed here.” Shainline, 266 Pa.Super. at 136, 403 A.2d at 580 (emphasis supplied). Not only did we find in Shainline that the lower court acted prematurely in denying the petition to open, we went so far as to opine that, should petitioner prove the allegations contained in his petition following our remand, then the equities would favor opening the default judgment. In essence, we viewed petitioner’s disputed allegations, if proven, as constituting a reasonable excuse for petitioner’s default.

A careful reading of our decisions in both Instapak and Shainline discloses that, in each, the reversal and remand was necessitated by the pivotal nature of the allegations in dispute. Because I am unable to agree with the majority’s implicit premise, in the case sub judice, that the allegations contained in paragraph 2-4 are indeed “material” or “dis-positive,” I view Instapak and Shainline as inapposite. Consequently, I am of the opinion that the sua sponte invocation of the spectre of Rule 209 is wholly unwarranted. Even accepting appellant’s allegations as supportable by clear and convincing evidence, I would nevertheless find that no reasonable excuse for appellant’s default has been thereby proffered. Accordingly, I consider a remand to be inefficacious.

Having so said, I would affirm the order of the court below on the thoughtful and well-reasoned opinion of the Honorable Ethan Allen Doty.

      . We wish to note that this Court has concluded recently that, as of July 1, 1984, “the requisite elements of a petition to open a default judgment must be the same regardless of whether the substantive claim lies in contract or tort.” Wolfskill v. James Egan and Agway, Inc., 350 Pa.Super. 223,-, 504 A.2d 326, 328 (1986).
      Inasmuch as the cause of action at bar was filed on April 19, 1984, we see no inconsistency in referring merely to the two-pronged standard of review mentioned supra in assessing the sufficiency of the appellant’s petition to open. Moreover, in note 3 infra, we have made reference to the meritoriousness of the appellant’s defense as required by this Court’s en banc decision in Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982), allocatur denied 9/ /82. Accord American Express Co. v. Burgis, 328 Pa.Super. 167, 476 A.2d 944 (1984).

       We have indicated elsewhere that the court could itself set a timetable for the taking of depositions and for decision. Goldstein, Instapak, supra. The court must give notice of such a schedule, however.

      . The final date on which action would have had to been taken by the appellant, under Rule 237.1, would have been May 28. Here, the appellee obtained a judgment two days after the run-date. If we were to calculate the run-date from the point where the appellant received notice, i.e., May 21, it would appear that the appellee’s securement of a judgment would be considered questionable. See generally Franklin Interiors, Inc. v. Browns Lane, Inc., 227 Pa.Super. 252, 323 A.2d 226 (1974).

      . The equities not otherwise being clear, see Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1977), we make mention of our agreement with the lower court that the appellant has offered a meritorious defense. Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982), allocatur denied 9/_/82.


author: HESTER, Judge:

text:
    505 A.2d 1014
    In the Interest of ANITA H., Jamell B., Frank W. Appeal of CURTIS B. and Frank W., Sr.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed March 12, 1986.

      Thomas Woodrow, Pottsville, for appellants.
    Before BROSKY, McEWEN and HESTER, JJ.
   HESTER, Judge:

The issue presented by this case is whether an adjudication of dependency of minor children can be made without first determining whether a non-custodial parent is available to provide proper care and control.

The facts of this case are as follows. Alice H., the mother of the three minor children who are the subjects of this appeal, Anita H., Jamell B., and Frank W., left them and another child, Valerie H., alone in her apartment to visit a neighbor. While she was absent, one child started a fire with a cigarette lighter. The fire resulted in Valerie’s death and the hospitalization of Frank W.; the remaining two children were unharmed. The mother was charged with and convicted of criminal offenses arising out of the incident and was incarcerated.

On April 19, 1985, a petition was filed by Schuylkill County Children and Youth Services pursuant to the Juvenile Act (hereinafter “Act”) alleging that the three surviving children were “dependent children” within the meaning of the Act. See 42 Pa.C.S. § 6302. A hearing was held on May 2, 1985, concerning the allegations in the petition.

Appellants, Curtis B. and Frank W., Sr., are the natural fathers of the children, and appeared at the hearing in an effort to obtain custody of their respective children. The trial judge, noting that home evaluations had not been completed, refused to consider their requests or to permit them to testify.

An order was issued May 8, 1985, wherein the children were adjudicated dependent and which placed legal custody of the minors in Schuylkill County Children and Youth Services. Physical custody of the children was awarded to Rose Ann Stokes, their maternal grandmother. The court further directed that its order “remain in full force and effect until further Order of this Court.” Appellants thereafter perfected this appeal.

The Juvenile Act defines a dependent child, in relevant part, as one who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals____” 42 Pa.C.S. § 6302. Whether a child is considered to be lacking proper parental care or control encompasses two discrete questions which must be addressed by the trial court. First, it must be ascertained if the child is “at this moment without proper parental care or control.” If so, then the court must determine if such care or control is “immediately available.” In the Interest of LaRue, 244 Pa.Super. 218, 233, 366 A.2d 1271, 1278 (1976) (emphasis in original); see also In the Interest of Theresa E., 287 Pa.Super. 162, 179, 429 A.2d 1150, 1158 (1981).

In the case at bar, the lower court considered evidence from the caseworker only as to the mother’s ability to provide proper parental care. Clearly, a determination that she could not do so while incarcerated cannot be challenged. However, the trial judge refused to hear testimony by appellants as to their parental fitness. By failing to consider their testimony, the trial court could not adequately rule upon whether proper parental care or control was immediately available. In the absence of clear and convincing evidence that such care was not immediately available, the children could not be adjudicated dependent. In re A.E.M., 288 Pa.Super. 284, 288, 431 A.2d 1049, 1052 (1981).

Appellants rely upon In the Matter of Mark T., 296 Pa.Super. 533, 442 A.2d 1179 (1982), a case which is directly relevant to the matter before us. Therein, the mother and father were divorced and living apart, with the mother retaining physical custody of the child. The lower court adjudicated the minor child dependent without establishing whether the child’s father was able to provide proper parental care and control. This court vacated the order and remanded for further proceedings, observing that the lower court had not considered the availability of the father before adjudicating the child dependent. To make a determination of dependency, we held that the lower court was required to determine whether Mark’s father was capable of rendering the requisite care and control for the child.

This case warrants a similar result. The natural fathers stood ready to assume immediate care and control over their children. Concededly, home evaluations were necessary prior to an adjudication. However, the lower court should have continued its hearing and ordered the studies rather than entering a finding of dependency and stating that the children “may eventually be placed with their fathers; however, that decision will depend upon the home studies done by the Berks County Children and Youth Services.” Slip op. at 3. Its decision to find the children dependent was not consonant with the fundamental purpose of the Act, which is to preserve the unity of the family. Care and. protection of the children are to be achieved in a family environment, whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety. 42 Pa.C.S. § 6301(b)(3). See also In the Matter of Mark T., supra.

Accordingly, we must vacate the order of the lower court and remand for further proceedings. The court shall direct an investigation of the fathers’ homes and consider the results of such investigations before making its adjudication. “Additionally, the court should consider obtaining disinterested testimony from neighbors, social workers, and/or psychological experts before making its adjudication.” In re A.E.M., supra, 288 Pa.Super. at 289, 431 A.2d at 1052. After the hearing, the court shall enter an appropriate order and prepare an opinion with specific findings of fact. Id.

Orders vacated and case remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . The trial judge, in denying their requests to be heard, informed their counsel, “I don’t want you to waste my time.”

      . Since the hearing, the children’s mother, Alice H., has been released from prison and is currently residing with Mrs. Stokes and the children.

      . Appellee contends that appellants should not use dependency proceedings as an alternate means to seek custody. Indeed, this court has cautioned against such efforts by non-custodial parents. In the Interest of Theresa E., 287 Pa.Super. 162, 429 A.2d 1150 (1981). However, when a dependency petition is filed by a third party, we cannot condemn a non-custodial parent who intervenes in order to protect his child from being declared dependent and placed in the custody of a public agency or with foster parents.
      Appellee also argues that this proceeding has become moot since the mother has regained custody of the children. Such is not the case. Although the mother may be reunited with the children at the home of her mother, legal custody of those children continues to be vested in Schuylkill County Children and Youth Services until such time as the court directs otherwise.


author: SPAETH, President Judge: DEL SOLE, Judge,

text:
    505 A.2d 1016
    Richard PULLEYN and Rodger Sadlak, t/d/b/a Butler Custom Builders and Charles W. Davis, Jr., In His Own Right and In His Capacity as the Administrator of the Estates of Linda S. Davis and Kimberly Davis, and In His Own Capacity As the Parent and Natural Guardian of Jason Davis, a Minor and Kristen Davis, a Minor v. CAVALIER INSURANCE CORPORATION and Westmoreland Casualty Company Appeal of Charles W. DAVIS, Jr., In His Own Right and In His Capacity as the Administrator of the Estates of Linda S. Davis and Kimberly Davis, and In His Capacity as the Parent and Natural Guardian of Jason Davis, a Minor, and Kristen Davis, a Minor.
    Superior Court of Pennsylvania.
    Argued April 24, 1985.
    Decided Feb. 10, 1986.
    Reargument Denied March 7, 1986.

      Mark A. Criss, Zelienople, for appellant.
    Louis C. Long, Pittsburgh, for appellee.
    Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, BECK and TAMILI A, JJ.

       President Judge Spaeth wrote this opinion before the expiration of his term on the Court.

   SPAETH, President Judge:

This appeal is from an order granting judgment on the pleadings in a declaratory judgment action. See 42 Pa.C.S. § 7531 et seq. The issue is whether an insurance company is obliged to defend, under a general liability insurance policy, an action in trespass in which it is alleged that the insured was negligent in entrusting a motor vehicle to an employee. The trial court granted judgment on the pleadings in favor of the insurance company, holding that the company is not obliged to defend because of an exclusion in the policy. We affirm.

In reviewing an order granting judgment on the pleadings, we accept as true the opposing party’s well-pleaded averments of fact and consider only those facts that the opposing party specifically admits. Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966), cert. denied 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967). We then ask whether, as thus defined, the case is clear and free of doubt, for only in such a case should judgment on the pleadings be entered. Id.

Applying the foregoing principles, we may summarize the facts as follows. On July 30, 1979, Steven James Kirk was driving an automobile owned by his employers, appellees Richard Pulleyn and Rodger Sadlock, who do business under the name of Butler Custom Builders, and whom we shall refer to collectively as “Custom Builders”. He was making a delivery, in the course of his employment, when he was involved in an accident with an oncoming automobile, driven by appellant’s wife, with appellant’s three children as passengers. Appellant’s wife and one of the children were killed, and the other children were injured. Appellant sued Custom Builders, alleging that Custom Builders had been negligent “in assigning Steven James Kirk the task of delivering a certain piece of equipment, the attempted performance of which task resulted in the death of [appellant’s] decedent in that [Custom Builders] had actual knowledge of the defendant Steven James Kirk’s physical illness or incapacity before assigning him the said task.” Amended Complaint in Trespass ¶ 12. Custom Builders then filed the present action for declaratory judgment, seeking, among other relief, a declaration that an insurance policy issued to them by appellee Westmoreland Casualty Corporation provided coverage against the claims raised in appellant’s action in trespass. Appellant was granted leave to intervene in the declaratory judgment action. In response to motions for judgment on the pleadings filed by Westmoreland Casualty, Custom Builders, and appellant, the trial court granted Westmoreland Casualty’s motion and denied the others. This appeal followed.

The question presented by the appeal is a question of first impression for the appellate courts of Pennsylvania: Whether an insurance company may be required to defend an action brought on the theory of negligent entrustment when the liability insurance policy contains an exclusion providing that:

This insurance does not apply:
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(2) any other automobile or aircraft operated by any person in the course of his employment by any insured.

When a provision in an insurance policy excludes coverage, it is to be construed against the insurer and in favor of the insured. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983). Appellant argues that in construing the exclusion here in question, we should find coverage. In support of this argument, appellant relies heavily on Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981), which appellant argues is “directly controlling].” Brief for Appellant at 12. It is true that in Eichelberger we construed the words “arising out of”, as they were used in an exclusion substantially the same as the exclusion here in question. In undertaking that task, however, we were not required to consider an action brought on the theory of negligent entrustment, and examination of Eichelberger will show that it is inapposite to our decision here.

In Eichelberger we stated the facts as follows:

On November 3, 1974, Dava Rice was driving her automobile in which her sister, Linda Junk, was a passenger. The two women were traveling south on Route 34 near Carlisle, Pennsylvania, when their vehicle stopped for an unknown reason, although Linda believed that it had run out of gas. Dava parked the car as far to the right side of the road as it would go without hitting the guardrail. However, the berm was not wide enough to accommodate the entire car leaving it partly on the highway. The two women then walked to a gas station and returned a short time later with a can of gas. Two “good Samaritans”, Brian Magaro and Herby Eichelberger, stopped to see if they could be of assistance. Immediately prior to the accident, all four persons were generally assembled at the rear of the Rice vehicle. While the two men were doing this, Dava Rice was standing slightly on the highway behind her vehicle with her back to oncoming southbound traffic. At that moment a car driven by Vivian Lee Warner was traveling in the southbound lane and was approaching the Rice car. According to Warner’s testimony, when she was approximately two car lengths from the Rice vehicle, and about to pass the disabled Rice vehicle, Dava Rice suddenly stepped backwards and to her left, placing her in front of the right front headlight of the oncoming Warner vehicle. Warner struck Rice, who was a few feet from her car, and lost control of her vehicle running into the rear of the Rice automobile. Dava Rice was killed, Brian Magaro sustained serious injuries, Herby Eichelberger was also injured although less seriously and Linda Junk escaped unharmed.
290 Pa.Super. at 271-72, 434 A.2d at 748-49.

On appeal the issues were whether Dava Rice’s automobile insurance and homeowners policy both provided coverage for the injuries sustained by the others. As we have indicated, the homeowners policy contained an exclusion substantially the same as the exclusion here. We found coverage, construing the phrase “arising out pf the use of an automobile” as “excluding] only those injuries which are proximately caused by the automobile.” 290 Pa.Super. at 278, 434 A.2d at 752.

It is readily apparent that Eichelberger was a very different case than this one. When the accident occurred in Eichelberger, Dava Rice, the insured, was standing outside of her stopped automobile with the others who were trying to assist her. Her policy excluded only injuries sustained when operating “any motor vehicle owned or operated by or rented or loaned to any insured" (emphasis added), and when she was injured, she was not operating any motor vehicle. The argument made to us turned on the issue of causation: It could not be maintained that the injuries were proximately caused by Dava Rice’s ownership or operation of her automobile, but they were “simply causally connected with the auto”, 290 Pa.Super. at 278, 434 A.2d at 752, for “had not the Rice vehicle run out of fuel, Dava Rice would not have been standing in the highway waiting while Herby Eichelberger poured gasoline into her car”, id., 290 Pa.Superior Ct. at 274, 434 A.2d at 750. The issue we had to decide, therefore, had nothing to do with liability for negligent entrustment; rather, it was whether the exclusion extended to both proximate and simple (or “but for”) causation, or only to proximate causation. Here the automobile was being operated by Kirk, and the accident happened while both vehicles were in motion. No issue of proximate or simple causation is presented.

Proceeding then from Eichelberger to those cases that are in point, we find that the courts are divided on whether an insurance policy provision such as the provision here includes or excludes coverage for negligent entrustment. Those courts finding coverage have distinguished the act of negligently entrusting a motor vehicle from the ownership, operation, maintenance or use of the vehicle. As one court has reasoned:

The gist of the action, the gravamen, if you will, is not the use of the motor vehicle, which arguably establishes a basis for these exclusions of the policy to become operative, but rather the gist or the gravamen of the tort is the failure to supervise what amounts to a dangerous instrumentality; and that is a ten year old child with a self-propelled vehicle or projectile such as this minibike.
Douglass v. Hartford Insurance Co., 602 F.2d 934, 935-36 (10th Cir.1979) (quoting trial court opinion).

See also Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974); Republic Vanguard Insurance Co. v. Buehl, 295 Minn. 327, 204 N.W.2d 426 (1973); Lalomia v. Bankers & Shippers Insurance Co., 35 A.D.2d 114, 312 N.Y.S.2d 1018 (1970), aff'd 31 N.Y.2d 830, 339 N.Y.S.2d 680, 291 N.E.2d 724 (1972).

Increasingly, however, the courts have declined to find coverage. Some rely on what is described as the “dovetail” approach, under which insurance coverage for automobile accidents is to be found, not under a general liability policy of the kind in question here, but rather under the automobile insurance policy. Thus the Delaware Supreme Court has said:

[Hjomeowner’s insurance is intended to cover risks attendant upon home and related activities, while automobile liability insurance is designed to provide basic coverage for all risks inherent in the use and ownership of motor vehicles. This “dovetail” approach is premised upon the principle that the insured must look to the basic protection provided by the specific insuring agreement designed to cope with the risk inherent in automobile operation, with homeowner’s protection available only to cover all other general or unspecified risks.
Insurance Company of North America v. Waterhouse, 424 A.2d 675, 680 (Del.1980).

See also Bartels v. Romano, 171 N.J.Super. 23, 407 A.2d 1248 (1979). We are not persuaded by this reasoning, for different policies may or may not be mutually exclusive; each policy must be examined on its own terms. For this proposition, Eichelberger is on point. See 290 Pa.Super. at 276, 434 A.2d at 750-51 (“a homeowners’ policy and an automobile policy are not necessarily mutually exclusive,” citing and quoting 7A Appelman, Insurance Law and Practice § 4500 (1979)).

Other courts declining to find coverage have reasoned that “although the act of negligently entrusting a motor vehicle is an essential (if not the primary) element of the tort, liability giving rise to the tort is not actually triggered until the motor vehicle is used in a negligent manner resulting in injury.” Michigan Mutual Insurance Co. v. Sunstrum, 111 Mich.App. 98, 104, 315 N.W.2d 154, 157 (1981). See also Insurance Company Of North America v. Waterhouse, supra; Barnstable County Mutual Fire Insurance Co. v. Lally, 374 Mass. 602, 373 N.E.2d 966 (1978); Hanover Insurance Co. v. Grondin, 119 N.H. 394, 402 A.2d 174 (1979); Williamson v. Continental Casualty Co., 201 N.J.Super. 95, 492 A.2d 1028 (1985). As the Alabama Supreme Court has said:

It is the concurrence of these dual elements — negligent entrustment by the owner or custodian of the instrumentality plus its negligent use by the entrustee — that is missing in the rationale of those cases upholding coverage. Taken literally, this line of reasoning — that negligent entrustment of the vehicle, and not its use, is the basis of insured’s alleged liability — the injured party could recover absent any showing that the incompetent to whom the vehicle is entrusted caused the injury by his negligent use of the vehicle. As we have observed, this does not comport with the elements that make up this tort concept of negligent entrustment.
Cooter v. State Farm Fire & Casualty Co., 344 So.2d 496, 499 (1977).

We are persuaded by this reasoning. Contrary to appellant’s assertion, it is not the negligent entrustment of the automobile to Kirk but Kirk’s use of it that is the basis of the insured’s — Custom Builders’ — alleged liability, and as to that use, the insurance policy excludes coverage.

Affirmed.

DEL SOLE, J., dissents.

BECK, J., joins in this dissenting opinion by DEL SOLE, J.

DEL SOLE, Judge,

dissenting:

I must respectfully dissent from the Opinion of the majority in this case. I would reverse the judgment entered on the pleadings on the basis of the unpublished Panel Opinion authored by the Honorable Harry M. Montgomery which follows:

“The instant appeal arises from a lower court order granting a motion for judgment on the pleadings and a declaratory judgment action. This case was instituted in a lower court to resolve questions of insurance coverage and the duty to defend a tort claim and indemnify an insured arising out of the tort claim.

“The events leading to the instant appeal were triggered by a motor vehicle accident which took place on July 30, 1979. In that incident, a vehicle operated by one Steven James Kirk collided with an oncoming vehicle, and the accident produced the deaths of two persons and serious bodily injuries to others. At the time, Kirk was operating the vehicle in the course of his employment with Richard Pulleyn and Rodger Sadlak t/d/b/a Butler Custom Builders (hereinafter collectively referred to as ‘Custom Builders’).

“A suit was filed by Charles W. Davis, Jr., on his own behalf and on behalf of the estates of his wife and daughter, who were killed in the accident, as well as on behalf of two of his children who survived the collision. Damages for the deaths and injuries were sought in that action against Kirk and also against Custom Builders. In the case, the Plaintiff sought, inter alia, to recover from Custom Builders on two distinct theories of negligence. First, as would be expected, Custom Builders was asserted to be vicariously liable for the negligence of the employee, Kirk, in his operation of the vehicle involved in the accident. Second, and most significant to the instant litigation, the Plaintiff maintained that Custom Builders was negligent ‘... in assigning Steven James Kirk the task of delivering a certain piece of equipment ... in that [Custom Builders] had actual knowledge of the Defendant Steven James Kirk’s physical illness or incapacity before assigning him the said task.’

“Following the institution of the damage action, Custom Builders filed the instant action seeking, among other relief, a declaration that an insurance policy issued to them by the Defendant-Appellee Westmoreland Casualty Corporation (hereinafter referred to as “Westmoreland”) afforded coverage against claims asserted in the above-described damage action. The Plaintiff in the damage action was granted the right to participate in the instant declaratory judgment litigation as an Intervenor. Each of the parties filed motions for judgment on the pleadings and the lower court granted the motion of Westmoreland, and denied the cross motion of Custom Builders and of the Intervenor. The instant appeal is filed by Charles W. Davis, Jr., the Intervenor, in his personal and representative capacities.

“The crux of this case is whether Westmoreland policy of insurance covers the insured, Custom Builders, with regard to the claim by the Intervenor that- Custom Builders is liable, on the theory that it was negligent in assigning an ill or physically incapacitated employee to the task which resulted in the accident. Westmoreland, in its defense, relies upon the following exclusion language set forth in the liability policy it issued to Custom Builders:

“This insurance does not apply: ... .

“(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
“(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or
“(2) any other automobile or aircraft operated by any person in the course of his employment by an insured.

“Westmoreland maintains that the aforesaid policy language excuses it from any defense or indemnity obligations with respect to the Intervenor’s damage claims against Custom Builders, the insured, because the underlying tort claim requires proof of negligent operation or use of an automobile. The lower court agreed with this argument, and also rejected the arguments of Custom Builders and the Appellant that the policy language was ambiguous.

“The Appellant has contended in the lower court, and again on his appeal, that the distinct allegation of a delegation of a task to an employee unfit for the task constituted an independent basis for coverage by the Westmoreland policy. It is argued that while the damage cause of action for negligent operation of the vehicle, based upon a respondeat superior theory, is not within the ambit of the policy, the separate negligent entrustment theory of recovery is not covered by the exclusion language in issue.

“Prior to addressing the merits of this appeal, it is appropriate that we make note of the well-established policies which guide our deliberations in cases such as the instant one. Because an insurance policy is a contract, we must determine the intent of the parties as manifested by the language of the written agreement. Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa.Super. 116, 386 A.2d 535 (1978). When the language in question is clear and unambiguous, its terms are to be given their plain and ordinary meaning. Blocker v. Aetna Casualty & Surety Company, 232 Pa.Super. 111, 332 A.2d 476 (1975). However, insurance contracts are considered contracts of adhesion, and genuine ambiguities, if they exist, must be resolved in favor of coverage and against the insurer. Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974). It is also held that clauses providing exceptions to an insurer’s general liability are to be interpreted narrowly and against the insurer. Miller v. Prudential Insurance Co. of North America, 239 Pa.Super. 467, 362 A.2d 1017 (1976); Celley v. Mutual Benefit Health and Accident Association, 229 Pa.Super. 475, 324 A.2d 430 (1974).

“It is with these precepts in mind that we have examined the question presented in this appeal, and now hold that the lower court erred in entering a declaratory judgment in favor of the Appellee insurer, Westmoreland. We conclude that the legal principles applicable to this case, the fact situation presented, and the insurance contract language in issue mandate a finding that the Westmoreland policy exclusions do not insulate the insurer from its obligation to defend and indemnify Custom Builders with regard to the negligent entrustment claims of the Intervenor-Appellant.

“The case of Eichelberger v. Warner, 290 Pa.Super. 269, 434 A.2d 747 (1981) provides highly relevant guidance as well as instructive precedent. In that case, our Court found, inter alia, that a homeowners insurance policy as well as an automobile insurance policy provided coverage to an insured in the case of injuries arising from an auto accident. The homeowners policy in issue in the case contained an exclusion quite similar to the one involved in the instant appeal:

“This policy does not apply

“(1) under coverage E — personal liability
“a) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
“b) any motor vehicle owned or operated by or rented or loaned to any insured ...

“The accident in Eichelberger occurred when the insured, standing behind her disabled car at the side of a highway, stepped backwards into the path of the Defendant’s car. The Defendant struck the insured, lost control of her vehicle, which then collided with other parked vehicles and caused injuries to other individuals at the scene. The Defendant, when found liable for damages to those individuals, sought a contribution from the insured’s auto and homeowner’s policies.

“Despite the above-quoted language in the policy, our Court determined that the homeowner’s policy provided coverage under the facts presented. Clear merit was found in the Defendant’s contention that a proximate cause of the accident was the insured’s non-auto related negligent conduct as a pedestrian. The insured’s negligence in stepping in front of the Defendant’s vehicle was determined to not fall within the ambit of the policy clause excluding coverage for injury or damage ‘arising out of the use’ of a vehicle.

“In Eichelberger, our Court relied upon a similar holding and the reasoning of the California Supreme Court in State Farm Mutual Automobile Insurance Company v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973). Similar holdings have issued in cases involving motor vehicle tort claims, and questions of coverage under homeowners policies featuring comparable exclusion provisions, in other jurisdictions. See Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974); Republic Vanguard Insurance Co. v. Buehl, 295 Minn. 327, 204 N.W.2d 426 (1973); Travelers Insurance Co. v. Beschel, 71 Misc.2d 420, 336 N.Y.S.2d 370 (1972); McDonald v. Home Insurance Co., 97 N.J.Super. 501, 235 A.2d 480 (1967).

“We find the analysis and reasoning in Eichelberger and the other cases cited to be persuasive in the instant case. The negligent conduct ascribed to Custom Builders by the Appellant, in the negligent entrustment allegations in the damage action, was separate and distinct from the allegations concerning the operation of the motor vehicle by the employee Kirk. The entrustment took place when Kirk was designated by his employers to perform the task, before he ever took the first step to carry out his assignment. It was a departure from due care which had been completed before the employee even entered the vehicle or moved it from its parking place to begin his job. Because the negligent entrustment claim is a separate one in the damage action, we cannot conclude, with the certainty legally required in the analysis of such exclusion clauses in insurance policies, that Westmoreland may be excused from providing coverage in such cases.

“Stated another way, we do not find it possible to hold that the policy in question positively and clearly excludes from coverage any claim against an insured that it was guilty of negligently assigning an employee a particular job or task, which when performed incompletely or incorrectly, proximately caused harm to another. One could reasonably conceive numerous other situations in which an employer could be accused of negligently assigning or entrusting an employee to a task which, because of subjective problems particular to the employee chosen, might foreseeably create a risk of damage to property or harm to others. We would find coverage for the insured in such circumstances under the general contractor’s liability policy in issue in this case. We do not feel that the exclusion clause in the policy in this case has any effect upon the insurer’s duty to provide coverage against claims of negligent entrustment. Of course, the later and separate act of negligence in driving by the employee, for which any employer may be held responsible under a respondeat superior theory, is unambiguously covered by the language of exclusion, and the insurer may properly rely upon it to avoid coverage.

“We therefore reverse and vacate the judgment on the pleadings entered for the Defendant-Appellee Westmoreland Casualty Company. The case is remanded to the lower court with directions that it enter judgment for the Plaintiffs, t/d/b/a Butler Custom Builders, and against the Defendant-Appellee Westmoreland Casualty Company, ordering that it provide a defense to the insureds on the entrustment aspects of the Intervenor’s damage claims, and thereafter indemnify the said Plaintiffs for any liability imposed as a result of such claims, with the financial limitations of the policy in questions.

“Reversed and remanded with directions. Jurisdiction is relinquished.”

I would add that I believe that the majority incorrectly analyzes the matter by making a determination that the motor vehicle must be used in a negligent manner resulting in injury as part of the claim. There can, in fact, be no negligence on the part of the operator of the vehicle at the time of the accident, but negligence on the part of the entrustor which is a substantial factor in bringing about the harm. It is in these situations where the issue is clearly drawn.

However, if the operator is negligent in causing an accident when the entrustor is negligent in providing the vehicle to the operator, both of these elements are separate and distinct and if they are both substantial factors in bringing about the harm, each would be liable on different theories.

Therefore, I would reverse the judgment on the pleadings entered by the trial court and direct that the carrier provide coverage on the negligent entrustment claim.

BECK, J., joins in this dissenting opinion.

      . The Restatement (Second) of Torts defines negligent entrustment as follows:
      It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
      Restatement (Second) of Torts § 308 (1965).

        See also id. § 317 (duty of master to control conduct of servant); § 316 (duty of parent to control conduct of child).

      . Because this case involves a judgment on the pleadings, our recitation of facts will rely on all of the well-pleaded allegations of the Intervenor-Appellant. See Wade v. Heisey, 243 Pa.Super. 8, 364 A.2d 423 (1976).

      . The status of the damage action is not a matter of record in the instant case.

      . See Restatement 2nd of Torts, Section 308, which sets forth this theory of recovery, which other courts have called “negligent entrustment”.

      . The Westmoreland policy provides, in pertinent part: “The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury of B. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage ...”


text:
    505 A.2d 1024
    COMMONWEALTH of Pennsylvania v. Kelvin YACHYMIAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 26, 1985.
    Decided March 10, 1986.

      David P. Posatko, Public Defender, Tunkhannock, for appellant.
    Brendan J. Vanston, District Attorney, Tunkhannock, for Com.
    Before BROSKY, JOHNSON and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence entered on nonjury convictions of driving under suspension and driving on the wrong side of the roadway, summary offenses under the Vehicle Code. Appellant’s primary argument is the alleged inconsistency between the judge’s finding of guilt on the above offenses and the jury’s acquittal, in the same trial, on charges of driving under the influence, a misdeameanor. Appellant also challenges the court’s refusal to admit certain photographs into evidence. We find no error and affirm.

On August 19, 1984, at approximately 1:30 A.M., police officers observed a vehicle being operated erratically, repeatedly crossing the center line of the highway. After signaling the car to pull over, the officers observed the driver squeeze between the bucket seats and move to the rear of the car. When the officers approached the car on foot, appellant’s wife was in the driver’s seat and appellant was lying on the back seat.

Appellant was ordered out of the car, and due to the odor of alcohol on his breath was asked to perform field sobriety tests, which he did poorly. He refused to take a breath alcohol test. As a result, he was charged with driving under the influence of alcohol, 75 Pa.C.S. § 3731(a)(1), driving under suspension (related to a prior violation of § 3731), 75 Pa.C.S. § 1543(b), and failure to drive on the right side of the roadway, 75 Pa.C.S. § 3301(a).

At appellant’s jury trial on the charge of driving while under the influence, the officers testified to the foregoing facts. Appellant and his wife testified that she had been driving the car, and that appellant leaned forward between the seats to get her insurance papers from the glove compartment after the police signaled her to stop. Appellant did not contest the fact that he was intoxicated; indeed, he and his wife both testified that she had stopped shortly before apprehension by the police in order for appellant to vomit outside the car. Appellant offered seven photographs taken by a friend under conditions approximating those at the time the police stopped appellant and his wife. The court sustained the Commonwealth’s objection to admission of the photos, holding that they were not properly authenticated in that the court could not “equate the camera lens with the eyes of the police officers.”

At the conclusion of the trial, the jury returned a verdict of not guilty on the misdemeanor charge. The judge, however, sitting as fact-finder on the summary offenses, found appellant guilty of driving under suspension and failure to drive on the right side of the roadway. Due to the fact that the suspension was related to a previous offense of driving under the influence, appellant received a mandatory sentence of ninety days imprisonment and a fine of $1,000.

Appellant presents only two issues: first, whether the court erred in excluding his photographs, and second, whether the inconsistency between the verdicts of the judge and the jury resulted in such basic unfairness to appellant that he is entitled to an arrest of judgment.

As to the first issue, the admissibility of photographs is within the discretion of the trial court. Fahringer v. Rinehimer, 283 Pa.Super. 93, 99, 423 A.2d 731, 734 (1980). See Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 454-55, 467 A.2d 615, 621 (1983). The trial court did not abuse its discretion in excluding appellant’s photographs.

In taking the pictures, appellant had attempted to duplicate the location, light conditions, vehicle positions and vantage point of the police officers. Nevertheless, the court correctly exercised its discretion in excluding the photographs due to its doubt that the lighting, brightness levels, relative heights, depths and distances sufficiently reproduced the observations of the police, thereby failing to establish the probative value of the photographs. Appellant was not in the patrol car at the time of the stop but instead claims to have been lying down with his head on the seat; he was thus never in any position to compare the officers’ view with the view represented by the pictures.

Appellant’s second argument is that the law should be changed, not that the trial court erred in applying existing law. Appellant’s reasoning is that the jury’s acquittal on the charge of driving under the influence necessarily rested upon a specific finding that appellant was not operating the vehicle, due to his admission that he was intoxicated. The judge’s opposite finding, that appellant was driving, is so basically unfair that it should not be tolerated in our criminal justice system.

Appellant recognizes that inconsistent verdicts may be rendered by a jury and that such verdicts are not grounds for a new trial or for reversal. Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971). The same rule applies in nonjury trials. Commonwealth v. Harris, 239 Pa.Super. 603, 606, 360 A.2d 728, 729 (1976). Appellant does not argue that a different rule of law holds for cases in which both judge and jury sit as fact-finders on summary and misdemeanor offenses tried in one proceeding as required by Commonwealth v. Campana, 452 Pa. 233, 253, 304 A.2d 432, 441 (1973), vacated 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand 455 Pa. 622, 314 A.2d 854 (1974), cert. denied 417 U.S. 969, 94 S.Ct 3172, 41 L.Ed.2d 1139 (1974).

Instead, he argues that the rationale of Commonwealth v. Bittinger, Somerset County, 25 Pa.D. & C.3d 627 (1982), should be adopted in order to alleviate the basic unfairness of inconsistent verdicts in a combined judge-jury trial. The issue in Bittinger was identical to the one under review— whether a judge may convict on a summary offense when such a conviction is logically inconsistent with a jury’s acquittal in the same trial. President Judge Coffroth granted a motion in arrest of judgment after he had found Bittinger guilty of harrassment and a jury had acquitted Bittinger of assault in the consolidated trial.

The judge explained his decision in a lengthy opinion, holding that “a criminal accused is protected against inconsistent findings of essential facts by different fact-finders in a consolidated jury-nonjury trial of misdemeanor and summary offenses arising from a single episode of conduct,” and that “the judge must defer to the jury’s finding upon common essential issues, if clear, because public policy favors jury trial.” Id. at 643-44. The holding was based upon the belief that inconsistent verdicts constituted “a double jeopardy of sorts” or might be “merely a matter of collateral estoppel.” Id. In any event, the unfairness to the accused puts the judicial system in a bad light as not knowing its own mind, makes justice appear aleatory and reduces both public confidence in the judicial system and judicial self-respect. Id.

We decline to adopt the foregoing rationale for two reasons. First and foremost is the difficulty, if not impossibility, of determining when two verdicts are truly inconsistent. In the case at bar, for instance, conviction of driving under the influence would have entailed three findings of fact: appellant was operating the vehicle, he was under the influence of alcohol and he was incapable of safe driving. An acquittal entails reasonable doubt of any one of the essential facts. The judge’s finding that appellant was operating the vehicle is inconsistent only if the acquittal was based on the jury’s doubt that appellant was driving rather than on the absence of either of the other two elements of the offense. Despite appellant’s insistence that he did not contest the issue of his intoxication so that his acquittal must be interpreted as a jury finding that he was not the operator of the vehicle, there is at least a reasonable possibility that the verdict was based upon an absence of proof that appellant was intoxicated to a degree which rendered him incapable of safe driving.

For these reasons it has been held that “[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence. [The acquittal may be] ... no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” Commonwealth v. Parrotto, 189 Pa.Super. 415, 422, 150 A.2d, 396, 399 (1959).

A second reason we decline to adopt appellant’s view as presented in Bittinger, supra, is that it functionally abrogates Pa.R.Crim.P. 63(b) and 1102(a). These rules taken together designate the judge as trier of fact in summary cases which are conjoined with court cases pursuant to Campana, supra. As to the summary offenses, “the trial judge shall determine all questions of law and fact and render a verdict which shall have the same force and effect as a verdict of a jury.” Pa.R.Crim.P. 1102(a). He surely cannot fulfill this duty if he follows the requirement in Bittinger that he “must defer to the jury’s finding upon common essential issues.” Bittinger, supra, at 644.

Although the law permitting inconsistent verdicts occasionally seems to produce paradoxical results, we find no error in the trial judge’s performance of his role as finder of fact under the rules of criminal procedure. Accordingly, we affirm the judgment of sentence.

      . At the conclusion of the Commonwealth’s case, appellant’s counsel demurred to the charge of driving under the influence because neither prosecuting officer testified to the opinion that appellant was under the influence. The court denied the demurrer, ruling that the weight of the evidence of the field sobriety tests and the odor of alcohol presented a jury question as to intoxication. Notes of Testimony, November 14, 1984, at 56. Although the evidence that appellant was so intoxicated as to be incapable of safe driving was sufficient to overcome a demurrer, it was not overwhelming.


author: PER CURIAM: OLSZEWSKI, Judge,

text:
    505 A.2d 1355
    COMMONWEALTH of Pennsylvania v. John Thomas NOLAND a/k/a Nolan, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Feb. 3, 1986.
    Reargument Denied April 4, 1986.
    Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.
    Joel M. Kaufman, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   PER CURIAM:

Judgments of Sentence for rape and escape affirmed. Judgment of Sentence for burglary vacated and remanded for resentencing. Jurisdiction relinquished.

OLSZEWSKI, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting:

I agree with my colleagues’ decision that the trial court did not err in finding that the crimes of rape and escape arose out of separate transactions. I disagree, however, with their finding that the lower court erred in concluding that the crimes of rape and burglary arose out of separate transactions. I would affirm the trial court’s determination on both matters.

The majority draws the conclusion that the crimes of rape and burglary arose out of the same transaction because of their “close temporal and physical relationship.” While this relationship is one factor that should be considered by this court in analyzing this problem, I hesitate to conclude my inquiry here. Our Supreme Court in Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983), was confronted with a similar problem in interpreting the phrase “single criminal episode” under 18 Pa.C.S.A. Sec. 110 (Purdon 1973). This statute was designed to prevent a second prosecution where charges have been joined with those raised in the first prosecution. Thus, in defining this term, this court considered the temporal sequence of events, the logical relationship between the acts and whether the criminal offenses involved common issues of law and fact. Analogizing this situation to the instant case, I find that the crimes of rape and burglary did not arise from the same transaction, but separate transactions.

It is a matter of record that appellant entered the victim’s home fully intending to commit a theft. Once the act was completed, appellant committed a second offense, rape. Excluding the temporal and physical relationship between the crimes, no other similarities exist. Neither act occurred for the purpose of completing the other act, nor was one crime a consequence of the other. As a result, I therefore conclude that where an act, which is in itself a separate criminal offense, occurs as part of the logical progression of events culminating in a criminal act, then despite its separate nature, it shall be classified for sentencing purposes only as an act arising out of the same transaction. Since there appears to be no logical relationship between the act of rape and the act of burglary, I conclude that the “same transaction” test has not been met and that the court did not err in applying the prior record score of 2 in calculating appellant’s burglary sentence.