text:
    618 A.2d 456
    Estate of Ursula C. GETZ. (Three Cases) Appeal of Margery GETZ, Appellant. (Three Cases)
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1992.
    Filed Dec. 30, 1992.

      John A. Hiscott, Stroudsburg, for appellant.
    Marianne S. LaVelle, Lehighton, for heirs of Tillie Getz, participating parties.
    Roger N. Nanovic, Jim Thorpe, for Luther, Lawrence, Robert and Wilbur Getz, participating parties.
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether the executors of an estate should be surcharged for: expenditures for taxes, insurance and maintenance for real property pending the sale of the property; payment of real estate broker’s commissions paid to an executor who also served as a real estate broker; and attorney fees paid to the estate’s attorney. We conclude that the trial court did not err in refusing to surcharge the executors. Therefore, we affirm the December 16, 1991 orders of the trial court.

The facts and procedural history of this case may be summarized as follows. On February 10, 1957, Ursula C. Getz died. According to the wishes expressed in the joint will which she had shared with her late husband, Robert Getz, she left $5,000, to be paid within ten years of her death, to each of three daughters. The residue of the estate, which consisted mostly of 5,000 acres of uninhabited, forested land in Carbon and Monroe Counties, was left to Ursula Getz’s six sons, Robert L. Getz, Maurice C. Getz, Warren L. Getz, Wilber L. Getz, Lawrence G. Getz, and Luther A. Getz. The six sons were named executors of the estate. The will provided, in relevant part:

ITEM IV. We hereby expressly authorize our hereinafter named executors, if they shall so elect, to continue and operate during the administration of our estate, any farming operation, business or other enterprises in which we are interested at the time of our death; all profits and losses therefrom belonging to and falling upon our estate and not upon the executors; it being our plan that there should be no interruption in the farming operations, business or enterprises during the period of the administration of the estate. It is our wish and desire that our sons will, as partners or as stockholders in a corporation to be formed by them if they so desire, continue the business and enterprises forming part of our estate, under the name of “Robert Getz & Sons”.
* ‡ ‡ *
ITEM VI. We direct our executors hereinafter named, to convert our estate, real, personal and mixed into money or its equivalent, at either public or private sale or sales and for such consideration or considerations as to them may seem fair and as to real estate to execute and deliver deed or deeds therefor with the same legal force and effect as we could, if living.

Joint Will of Robert Getz and Ursula C. Getz, Aug. 24,1954, at 1.

The estate was heavily encumbered by mortgages and judgments. By 1965, through the sales of various parcels of real estate, the estate paid $5000 to each of the three legatees. By 1969, the judgment creditors were either paid in full or contented with payment plans, and by 1971, the mortgages were satisfied.

The executors signed an agreement on May 24, 1965 (1965 agreement), in which they expressed their desires to continue the administration of the estate and the businesses of their parents, and to sell the real estate at the highest prices obtainable. 1965 Agreement at 1. The parties, as residuary beneficiaries, authorized the executors “to sell at private sale or if more advantageous at public sale for such sum or sums as they in their discretion deem satisfactory and at such time as they in their discretion deem beneficial to the Estate.” Id. at 2, para. 3. The agreement was made binding on all successors of all parties thereto. 1965 Agreement at 3, para. 7. Thereafter, under the stewardship of Maurice Getz, who handled most of the estate business, the executors were slow to sell land parcels, contemplating that they could obtain a better price in the future. Indeed, no land was liquidated between 1974 and 1986. N.T. April 8, 1988 at 45-50.

In 1966, one of the executors, Warren Getz, died. Maurice Getz died on July 31, 1974. He left his interest in the estate to his wife, Margery M. Getz, appellant herein.

In 1976, the four remaining executors entered into a fee arrangement with the estate’s attorney, George A. Shutack. The 1976 agreement confirmed an oral agreement made in 1957. The 1976 fee agreement explained that Shutack had agreed to perform all services in the administration of the estate on a contingent fee basis. It was further agreed that Attorney Shutack would receive additional compensation for other matters, such as condemnations, actions to quiet title, and preparing tax returns.

On April 6, 1979, the four remaining executors agreed among themselves that, because the legatees preferred a distribution in kind, such distribution should be made, instead of attempting to sell the real estate in a “slow” market. They further acknowledged that the only administrative expense yet to be paid was a balance of $155,250 due Attorney Shutack, pursuant to the fee agreement, as of December 13, 1978. At the time of this agreement, only 1900 acres remained to be distributed.

On March 15, 1980, the four executors/residuary beneficiaries and the two successors to the deceased residuary beneficiaries, Tillie Getz and appellant, signed an agreement (1980 agreement). In the 1980 agreement, the parties contemplated a distribution in kind. They also recognized a balance due Mr. Shutack and his associate for legal services rendered through December 31, 1979. The parties also recognized the executors’ opinion that “the present market conditions are not favorable for making sales based on the highest and best use of the property in view of the fact that environment aspects have slowed down the development of subdivisions.” 1980 Agreement at 1-2. They further recognized that

there remains the job of reducing the unconverted real estate to cash at fair prices and closing the Estate; however, the speed with which that can be done will depend on conditions as they develop and as well upon how far the parties concerned desire to go in sacrificing price in order to sell the property[;] accordingly no sales of real estate have been made for several years....

Id. at 1.

The parties agreed:

1. That the sales of real estate heretofore made have been made at prices acceptable to the undersigned;
2. That hereafter the Executors shall not be bound by the provision of the Will that all of the real estate shall be sold and converted into money;
3. All other activities of the Executors, in bringing about a ■ successful result, considering that the estate was in a bankrupt condition and considering that it took many years of administration are approved by the undersigned;
4. That the Executors plan as stated above providing for the payment of the balance due attorneys fees are approved;
5. That the plan now in progress for distribution in kind to each of the parties in interest, parcels of substantial equal quantity to them in accordance with maps prepared by Leo A. Achterman are approved.

Id. at 2. All six parties signed the agreement, as did appellant’s counsel, as a witness. In 1982, each of the beneficiaries received a distribution of real estate. Appellant received seventy acres, while the other beneficiaries received between sixty-seven and sixty-nine acres.

Throughout the existence of the estate, the executors had filed several accounts. After thirteen counts had been filed, the fourteenth account, which was filed on February 22, 1985, was the first to prompt an objection. Appellant objected to that account and also petitioned to remove the executors. The court dismissed the objections to the account and postponed disposition of the petition to remove executors. On May 6, 1986, appellant filed an amended petition to remove executors.

On May 12, 1986, appellant petitioned for review of several prior accounts. The executors filed preliminary objections, and the court sustained them. Appellant appealed to this Court, and we affirmed in an unpublished memorandum. See In re Estate of Ursula C. Getz, 366 Pa.Super. 645, 526 A.2d 1238 (1987).

On January 11, 1988, the trial court ruled on appellant’s objections to the fourteenth account and imposed one of several requested surcharges in the amount of $4,603.68. That order was not appealed.

The executors next filed the fifteenth account on November 23,1987. Appellant filed objections. The court held a hearing which the parties agreed would be held for all relevant proceedings. The court entered an interim order on appellant’s Amended petition to remove executors on January 11, 1988. Before the court ruled on the objections to the fifteenth account, the executors filed the sixteenth account, to which appellant also objected on January 28, 1990. The only new objections to the sixteenth account were with regard to real estate commissions paid to Luther A. Getz and attorney fees paid to Roger N. Nanovic, who succeeded Mr. Shutack as counsel to the estate.

On December 16, 1991, the court rendered three orders, dismissing: appellant’s amended petition to remove executors, her objections to the fifteenth account, and her objections to the sixteenth account. Appellant has timely appealed, and the appeals from the three orders have been consolidated.

Appellant presents the following issues for our review:

I. SHOULD THE EXECUTORS HAVE BEEN SURCHARGED FOR THEIR WASTE AND MISMANAGEMENT OF THE ASSETS OF THE ESTATE AND THEIR FAILURE TO PROMPTLY LIQUIDATE AND DISTRIBUTE THE ASSETS OF THE ESTATE?
II. DID THE EXECUTORS BREACH THEIR OBLIGATIONS TO THE ESTATE PURSUANT TO THE 1980 AGREEMENT?
III. SHOULD THE EXECUTORS HAVE BEEN SURCHARGED FOR THE BROKER’S COMMISSIONS PAID TO LUTHER A. GETZ IN THE 15TH AND PARTIAL ACCOUNT AND THE 16TH AND PARTIAL ACCOUNT?
IV. SHOULD THE EXECUTORS HAVE BEEN SURCHARGED FOR THE ATTORNEY FEES PAID IN THE 16TH AND PARTIAL ACCOUNT?

Appellant’s Brief at 3.

“While our review of the Orphans’ Court findings of fact is limited to considering whether they are supported by the record, we are not so restricted in reviewing the legal conclusions derived from the facts.” In re Estate of Brojack, 321 Pa.Super. 154, 159-60, 467 A.2d 1175, 1178 (1983), citing In re Ischy Trust, Etc., 490 Pa. 71, 415 A.2d 37 (1980). See also In re Estate of McCrea, 475 Pa. 383, 386-87, 380 A.2d 773, 775 (1977) (“In reviewing the decision of the orphans’ court, our task is to assure that the record is free from legal error and to determine if the chancellor’s findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.”) (citations omitted). Therefore, we address appellant’s arguments guarding against erroneous legal conclusions and unsupported factual findings.

Appellant’s first two arguments are related. First she argues that the disposition of the estate’s assets consumed too much time, and therefore, the executors should be personally responsible for the property taxes and insurance and maintenance expenses needlessly incurred. Appellant’s second argument, that the executors breached the 1980 Agreement, is in response to the executor’s argument that the 1980 Agreement precludes any grievances about the amount of time consumed to sell the assets.

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the distinguished Senior Judge, The Honorable Anthony R. Appel, it is our determination that there is no merit to appellant’s first two arguments. The trial court opinion comprehensively discusses and properly disposes of the questions presented. Accordingly, we affirm on the basis of that opinion as set forth below.

Prior to 1987 the executors had filed fourteen Partial Accounts. The first thirteen accounts were either confirmed by the court or approved as family settlements by the parties involved. The Fourteenth and Partial Account evoked objections and proceedings which were disposed of by orders entered by Judge Satterthwaite, specially presiding, by the Superior Court and by an order entered by the writer of this opinion.
It has previously been noted that the petition for Removal was filed November 25, 1985 with an Amended Petition having subsequently been filed on May 6, 1986. Prior to May 6, 1986 the executors had filed fourteen accounts. The accounts cover the period from the date of death of the decedent, February 10, 1957, to December 31, 1984. The act or omissions which the petitioner relies on to establish waste and mismanagement were consummated or nonfeased during that period of time. The petitioner had her opportunity to raise objections on fourteen different occasions. Excepting as to the fourteenth account no objections were filed.
It is apparent that petitioner seeks in a petition to remove executors to bring before the court issues concerning which she had opportunity to make justiciable over a period of years. The opportunity to bring justiciable issues before the court was lost when she failed to act. She cannot now give life to these acts and omissions as justiciable issues when the opportunity had repeatedly been lost.
We have previously noted that the first thirteen accounts were either confirmed by the court or approved as family settlements. We have noted that the objections to the Fourteenth Account have been disposed of by the court. Under these circumstances we are unable to conclude that the attempted surcharge in the Petition to Remove is properly before the court.

Trial Court Opinion, Dec. 17, 1991 (Trial Court Opinion), at 3, 6.

Appellant’s third argument is that the trial court erred in not surcharging the executors for the broker’s commissions paid to Luther A. Getz, an executor. Appellant states that Luther A. Getz put forth no extra effort as a real estate broker beyond his acts as an executor. Appellant also contends that Luther A. Getz is precluded from receiving a broker’s commission because he served the estate in a fiduciary capacity. We reject both facets of appellant’s argument.

“In Pennsylvania, the test for determining the appropriateness of the fees charged for services rendered in the administration of an estate has always been ‘reasonableness.’ ” Estate of Phillips, 420 Pa.Super. 228, -, 616 A.2d 667, 668 (1992), citing In re Estate of Burch, 402 Pa.Super. 314, 586 A.2d 986 (1991). An executor is not precluded from rendering additional services for additional pay to the estate which he administers, as long as he shows that his total compensation is reasonable and bears a relationship to the amount of work rendered. Quoting from the trial court opinion in Estate of Phillips, supra, we explained:

Where one person serves as both executor and counsel, he may be entitled to compensation for services rendered in each capacity which do not duplicate each other. He cannot be paid twice for the same work. The accountant has the burden of showing what work he did in each capacity so that this Court may avoid awarding double compensation for duplicated services. See Shillioto Estate, 8 Fid.Rep.2d 365 (O.Ct., Allegh., 1988).

Id., at -, 616 A.2d 667 (citation omitted).

In Wood’s and Martin’s Appeal, 86 Pa. 346 (1878), our Supreme Court recognized that an executor may be entitled to an additional fee for extra services rendered in the capacity as rent collector. In that case, the court refused to find that such fees were warranted as a matter of law, without evidence of the amount of extra work required. Id. at 349. The court explained:

The appellants have not brought up the evidence with this record to ask us to say as a matter of law, that an executor is entitled to an allowance of five per cent over his commissions with which to pay an agent to collect the rents of the real estate. This we cannot do. It may be that in many cases such an allowance would be proper. The services of an experienced rent collector might in many instances be highly beneficial to the estate and justify the additional expenses; in others wholly unnecessary. Five per cent commissions would be ample compensation to an executor in the case of a store renting for $10,000 per annum, while ten per cent might be inadequate for a house renting for $100. Much depends upon the character of the property as well as its rental value. If old and out of repair, and inconveniently located as to the residue of testator’s property, the labor would be proportionally increased. All these and others that might be specified, are matters of fact essential to a correct understanding and decision of the case. All we know is that some of the houses were small; but how located, in what condition of repair, and occupied by what class of tenants, we are not informed by this record.

Id. Therefore, where the executor can show that he has expended extra effort in a separate and distinct role, he is entitled to fair and reasonable compensation for his additional services. Id.; Estate of Phillips, supra. See also Geary’s Estate, 3 D & C3d 537 (1976) (roles of executor and realtor); In re Estate of Steed, 40 D & C 1 (1940) (same).

Paying an executor, instead of a third party, for services rendered is not unfair to the estate. The estate is proteeted by the Orphans’ Court, which monitors fees, ensuring that “the executor has received neither less nor more than what his services are worth.” Casely’s Estate, 23 Pa.Super. 646 (1903), citing Montgomery’s Appeal, 86 Pa. 230, 234 (1878).

In this case, the real estate broker’s commission paid to Luther A. Getz must be upheld if there was sufficient evidence for the Orphans’ Court to have concluded that the commission was fair and reasonable in light of the fact that Luther A. Getz was also an executor of the estate. The Orphans Court found that:

Luther A. Getz was an executor, a beneficiary and a real estate broker. He maintained a real estate broker’s office in Carbon County in which real estate salesmen were a part of the operation. In fact two of the properties on which commissions had been paid were sold by two different salesmen in the office.
The amounts of the commissions are not in controversy nor is it contravened that the sales were effected by the Luther A. Getz realtor office. The basis of the objection is that since Luther A. Getz was an executor he was not entitled to receive broker’s compensation.
íj: í}j >}c % Jfc #
The evidence establishes that Luther A. Getz was employed by the executors to sell the real estate for which commissions have been paid. Among the services rendered by him and his office are the posting of the homestead, advertisements in various newspapers, including ads which separately listed the homestead. The homestead was shown to approximately 40 persons, another property to about 15 to 18 persons and a third property was shown to roughly 18 to 20 parties. Of considerable importance is the evidence that others in the Luther Getz office were the salesmen of two of the three properties.

Trial Court Opinion at 17-18.

Luther A. Getz, through the efforts of his employees and himself, helped sell several pieces of real estate. He expended time, effort, and money in trying to sell the properties. When he personally made the sales, he charged the estate a five percent commission. When an associate procured the sale, he would charge seven percent and share equally in the seven percent with his associate. The commissions to which objections were filed total $12,650.00.

As the trial court stated, appellant did not allege that the fees paid were unreasonable for real estate broker services. We hold that the Orphans’ Court did not err in finding that Luther Getz provided beneficial services as a realtor beyond the services he provided as an executor. Therefore, we reject appellant’s third argument.

Appellant’s fourth and final argument is that the executors should be surcharged for the estate’s payments of attorney fees to the estate’s attorney, Roger Nanovic. We cannot agree.

The test for determining the appropriateness of a fee for legal services in an estate is reasonableness. Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369 (1986). Primarily, the responsibility for passing upon the reasonableness of counsel fee rests with the auditing judge. Thompson Estate, 426 Pa. 270, 232 A.2d 625 (1967). The determination that a fee is reasonable is within the sound discretion of the hearing judge whose decision will not be reversed in the absence of a clear error or abuse of discretion. Lychos Estate, 323 Pa.Super. 74, 470 A.2d 136 (1983); Wanamaker Estate, 314 Pa.Super. 177, 460 A.2d 824 (1983).
In determining the reasonableness of counsel fee, the court must consider many factors including the amount of work performed, the character of the services rendered, the difficulty of the problems, the amount of money or value of the property in question, the degree of responsibility involved, the professional skill and the standing of the attorney in his profession, and the ability of the client to pay a reasonable fee. LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968).

In re Estate of Burch, 402 Pa.Super. 314, 317-18, 586 A.2d 986, 987-88 (1991).

The Orphans’ Court found that Mr. Nanovic’s services benefited the estate and that he “has performed in a maze of complexities toward the end that a meaningful settlement of the estate is at hand.” Trial Court Opinion at 21. Moreover, appellant does not question the value of his services or the reasonableness of his charges.

However, appellant maintains that the 1976 agreement between the four remaining executors and the estate’s previous attorney, George Shutack, precludes any remuneration for Attorney Nanovic. Attorney Nanovic was not a party to the 1976 contingent fee agreement; only the executors and Attorney Shutack agreed to those terms. Clearly, the purpose of the agreement was to reduce to writing the parties’ understanding that Mr. Shutack would be paid a percentage of the proceeds from the assets as they were sold. The contract provided a set payment for work done by Shutack, not for all the work to be done for the estate by whomever. See Cumberland-Perry, Etc. v. Bogar and Bink, 261 Pa.Super. 350, 354, 396 A.2d 433, 435 (1978) (“It is basic principle that a contract cannot legally bind persons not party thereto.”).

Attorney Nanovic was not bound by the 1976 agreement with regard to Mr. Shutack’s fee arrangement. Mr. Shutack served as attorney for the estate from 1957 through part of 1985, when he retired. Mr. Nanovic took over as counsel on October 15, 1985, and has continued to represent the estate through this appeal. Attorney Nanovic provided beneficial services for reasonable and fair compensation. Accordingly, the Orphans’ Court did not err in refusing to surcharge the executors for Attorney Nanovic’s remuneration. Therefore, appellant’s fourth argument fails.

Having concluded that the Orphans’ Court did not err, we affirm its three orders of December 16, 1991.

Orders affirmed. Jurisdiction relinquished.

      . Ella L. Phillips, Minerva M. Miller, and Orphelia C. Murphy.

      . The estate’s attorney, George A. Shutack, eased the troubles of the estate by buying the judgments and accepting lesser monthly payments.

      . Nonetheless, the court affirmed the trial court order increasing the executors’ commissions from 5% to 6%. Id.

        . Of course, an executor is permitted to hire professionals, rendering the estate liable to pay for services rendered. See, e.g., In re Follans

        bee’s Estate, 161 Pa.Super. 31, 53 A.2d 864 (1947) (real estate broker who caused sale of estate property entitled to commission from estate); Casely’s Estate, 23 Pa.Super. 646 (1903) (fees for executor and real estate agent allowed). See also In re Faust’s Estate, 364 Pa. 529, 73 A.2d 369 (1950) (in administration of estate, executor can hire counsel).

      . The commissions were: $4,500.00 on “the Homestead,” the home of the testatrix and her husband; $1,050.00 on the "Kiraly property;” $2,100.00 on the sale of 13 acres of land; and $5,000.00 on the sale of 207 acres of land.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    618 A.2d 463
    COMMONWEALTH of Pennsylvania v. Jerome LOACH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1992.
    Filed Dec. 31, 1992.

      Norris E. Gelman, Philadelphia, for appellant.

      Patricia Coonahan, Asst. Dist. Atty., Cheltenham, for Com., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH and FORD ELLIOTT, JJ.
   BECK, Judge:

In this appeal we consider the propriety of using a progression charge to instruct the jury in a murder case. A progression charge instructs the jury to consider at the outset whether a defendant is guilty of the most serious degree or form of the crime with which he has been charged; if not, the jury then proceeds to consider, in descending order of seriousness, defendant’s guilt or innocence on the lesser degrees and forms charged. Appellant here claims that his trial counsel was ineffective for failing to raise a variety of objections to the progression charge given at his trial. We find that appellant is not entitled to relief, pursuant to the mandate of Commonwealth v. Lawson that second or subsequent petitions for post-conviction relief will not be considered except where petitioner has made out a prima facie showing that a miscarriage of justice has occurred or that he is innocent. We affirm the order of the trial court denying appellant relief under the Post Conviction Relief Act, 42 Pa.Cons.Stat.Ann. § 9541 et seq.

Defendant-appellant Jerome Loach was convicted following a jury trial of third degree murder, attempted murder, aggravated assault and other related charges. The trial court described the incident out of which this case arose as follows:

The event which led to these charges began on the morning of May 24, 1988, at Graterford Prison where defendant was an inmate. The defendant and another inmate, Jamal Brawley, the murder victim, were engaged in conversation in the main corridor of the prison. A third inmate, Norman Graham, approached the two and began to speak with the victim when Graham was physically attacked by a fourth inmate, Raymond Pryor. While Graham and Pryor continued their fight, defendant pulled out a homemade knife and stabbed Jamal Brawley several times. The stab wound inflicted on the left side of Brawley’s neck was fatal. Defendant then turned to Graham and stabbed him in the back four or five times. Graham recovered from his injuries. A corrections officer, Michael Bivins, present at the scene during the incident identified defendant as the inmate who was wielding the knife shortly after the stabbing of the victim. Corrections officers recovered the knife, which Bivins had seen in the defendant’s hand during the occurrence, in the main corridor immediately after the incident.

Trial Ct. Op. 2/6/90, pp. 1-2. Appellant testified at trial that he stabbed neither Brawley nor Graham. N.T. 2/17/89, pp. 43, 46. He claimed that he became involved in the altercation only when Brawley approached him and attempted to rob him of his wedding ring, watch and glasses. N.T., pp 36-38. Appellant claims that, during the struggle, another, unknown inmate approached and stabbed Brawley. N.T., p. 43.

At the close of evidence, the court instructed the jury as follows:

There are three types of criminal homicide that you might possibly find in this case; they are, murder of the first degree, murder of the third degree, and voluntary manslaughter. It will be your responsibility to decide whether or not to find the Defendant guilty of any of these crimes.....
[Defines malice]
On the other hand, killing is without malice if the killer acted under circumstances reducing the killing to voluntary manslaughter. I will tell you more about what constitutes circumstances reducing a killing to voluntary manslaughter when I define that crime ...
I will now be defining for you the elements of the three types of criminal homicide that you might possibly find in this case. As I said, beginning with the most serious, they are, in order, first degree murder, third degree murder and voluntary manslaughter. You have the right to bring in a verdict and find the Defendant not guilty, or find him guilty of one of these types of criminal homicide. So, what you will do, on the first charge of criminal homicide, murder of the first degree, you would consider that first and you would find the Defendant either guilty or not guilty of that charge. If you find him guilty, then it is not necessary to go on to the other types of criminal homicide. I want to make that point clear because that is different from what you will be doing with reference to the other charges.
In other words, if you find the Defendant guilty of murder of the first degree, you do not then go on to consider murder of the third degree or voluntary manslaughter. If, however, you find the Defendant not guilty of murder in the first degree, then you would go on to consider murder of the third degree. If you find him guilty of murder of the third degree, you don’t go on to consider voluntary manslaughter. If you find him not guilty of murder in the third degree, then you would go on to consider voluntary manslaughter and make that determination, guilty or not guilty.
;¡« }-c % % %
The first thing you would consider then is the crime of murder in the first degree....
If you find that he is guilty of this crime, then you would move on to consider the aggravated assault; you would not consider the rest of the homicide charges. On the other hand, if you find him not guilty of murder in the first degree, then you would go on to consider murder of the third degree....
Now let me define that [third degree murder] ...
Again, then, with reference to third degree murder, you would make a determination as to whether he was guilty or not guilty. If he’s guilty of that, you don’t consider voluntary manslaughter. If he’s not guilty of that, then you would consider voluntary manslaughter.
Let me go on then to consider voluntary manslaughter. Let me read the legal definition that would apply to that. As my earlier definition of malice indicates, there can be no malice when certain reducing circumstances are present. When those circumstances" are present, a killing may be voluntary manslaughter, but never murder. This is true when a defendant kills in the heat of passion following serious provocation.
Accordingly, you can find malice only if you are satisfied beyond a reasonable doubt that the Defendant was not acting under a sudden and intense passion resulting from serious provocation by the victim."
The term passion includes anger, rage, sudden resentment or terror which renders the mind incapable of cool reflection. Serious provocation is conduct that is sufficient to excite an intense passion in a reasonable person. Unless you are returning a verdict of murder, you may find the Defendant guilty of voluntary manslaughter, regardless of any provocation or passion, if you are satisfied that the following three elements have been proven beyond a reasonable doubt: First, that William Brawley is dead; second, that Defendant killed him; third, that the killing was with the specific intent to kill. A killing is with the specific intent to kill if it is committed by a person who has a fully-formed intent to do so and who is conscious of his own intent.
That would then be the definition of voluntary manslaughter, and that would end the instructions with reference to the various issues of criminal homicide.

N.T. 2/21/89, pp. 36-44.

The jury convicted appellant of third degree murder, attempted murder, aggravated assault and other related charges. He was sentenced to ten to thirty years. Appellant retained new counsel and appealed his judgment of sentence to this court, which affirmed. The Supreme Court denied appellant’s petition for allowance of appeal.

Appellant thereafter filed his first petition under the Post Conviction Relief Act, 42 Pa.Cons.Stat.Ann. § 9541 et seq., challenging the trial court’s calculation of his prior record score. Appellant was pro se on this first PCRA petition. The trial court granted appellant’s petition and re-sentenced him to nine to twenty years imprisonment.

Appellant then filed his second petition seeking relief under the PCRA, this time claiming that trial counsel was ineffective for failing to object to the progression charge given at trial. The trial court denied his petition, and this timely appeal followed.

Appellant raises the following issues on appeal. Appellant claims that his trial counsel was ineffective for failing to object to the progression charge on the grounds that:

(1) the charge denied appellant the benefit of the constitutional due process requirement that an instruction on voluntary manslaughter be given in every murder trial pursuant to United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3rd Cir.1974);
(2) the charge violated appellant’s constitutional due process right to a charge on voluntary manslaughter even in the absence of any evidence at trial supporting such a charge;
(3) the charge interfered with the jury’s exercise of its “mercy-dispensing” power to return a verdict of voluntary manslaughter despite evidence proving guilt of a more serious degree of murder;
(4) by structuring the jury’s consideration of the verdict as it did, the judge was acting as a “thirteenth juror” and usurping the jury’s prerogative to decide how it wanted to proceed in reaching its verdict; and
(5) the charge failed to instruct the jury, prior to defining first degree murder, that it must consider mitigating circumstances in deciding whether or not malice had been shown.

Appellant claims that his counsel on direct appeal was ineffective for failing to raise this ineffectiveness on the part of trial counsel.

We note that this is an appeal of the denial of appellant’s second PCRA petition. We must therefore consider as an initial matter the Supreme Court’s mandate that second or subsequent petitions for post-conviction relief “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988). Only if the Lawson threshold showing is made will we go on to determine whether appellant has also established the four prerequisites for relief set forth in the PCRA, 42 Pa.Cons.Stat.Ann. § 9543. Commonwealth v. Ryan, 394 Pa.Super. 373, 575 A.2d 949 (1990).

In Lawson, petitioner on a serial PCHA petition raised the claim that his trial counsel was ineffective for failing to raise a Rule 1100 violation on the part of the Commonwealth. The trial court ruled that petitioner was entitled to a hearing on his petition, and the Superior Court affirmed.

The Supreme Court reversed. After noting the abuse of the judicial system occasioned by permitting repetitive claims for post-conviction relief, and the legislature’s intent to limit such claims, the Court held that:

[W]e cannot permit our continuing concern for assuring that persons charged with crime receive competent representation in their defense to be exploited as a ploy to destroy the finality of judgments fairly reached. We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.
% ‡ # H*
A repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate. With regard to the instant case, the petitioner does not attack the fairness of the trial that resulted in his conviction, nor does he even assert that he was innocent of the criminal charges involved. What he seeks to do is to negate his obligation to stand trial, and in that effort relies on a procedural technicality. There has been no showing of a miscarriage of justice that would warrant entertaining his repetitive application for collateral relief. This petition should have been dismissed by the court without a hearing.

Id. at 513, 549 A.2d at 112.

This court has applied the Lawson standard in numerous cases since Lawson was decided. We have held that the Lawson standard is met if the petitioner can demonstrate “either that the proceedings resulting in his conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he is innocent of the criminal charges.” Commonwealth v. Dukeman, 413 Pa.Super. 397, 402, 605 A.2d 418, 420 (1992), quoting Commonwealth v. Ryan, 394 Pa.Super. 373, 376, 575 A.2d 949, 950-951 (1990). The issue before us then is whether or not Loach has made a prima facie showing that the ineffectiveness of his trial counsel resulted in a miscarriage of justice or the conviction of an innocent man. We find that he has not made this showing. We therefore affirm the order of the trial court denying him relief.

Appellant first claims that the trial court’s progression charge violated his constitutional right to a jury instruction on voluntary manslaughter. Appellant’s Brief, p. 22. Appellant cites United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3rd Cir.1974) for the proposition that the Due Process Clause of the United States Constitution entitles a murder defendant in Pennsylvania to have the trial court, upon defendant’s request, charge the jury on voluntary manslaughter. Ibid.

Our analysis of this issue is brief. Our review of the record shows that the jury was in fact instructed on voluntary manslaughter, as set forth in our excerpts from the jury charge above. Assuming arguendo that appellant is correct in his reading of Matthews, the trial court in this instance gave appellant what he asks for thereunder. Appellant’s claim of error is therefore frivolous. We will not find that appellant has met the Lawson standard of making out a prima facie case that a miscarriage of justice has occurred where his claim can be shown on the face of the record to be without any factual basis. Commonwealth v. Senk, 399 Pa.Super. 627, 630, 582 A.2d 1119, 1121 (1990), alloc. den., 528 Pa. 623, 597 A.2d 1152 (1991).

Appellant’s second claim is a variation on his first. He claims that he has a constitutional due process right to have the jury instructed on voluntary manslaughter, even in the absence of evidence adduced at trial that would support such a verdict. Again, we find appellant’s argument to be without any factual basis. As discussed above, the trial court did not refuse to instruct the jury on voluntary manslaughter on the grounds that the evidence did not support such an instruction, or on any other grounds; the jury that convicted appellant was instructed on voluntary manslaughter.

Appellant next claims that his counsel was ineffective for failing to object to the progression charge on the ground that the charge unduly hampers the jury’s “mercy-dispensing” power to convict a defendant of a less serious crime than that proved by the Commonwealth, citing Commonwealth v. McClendon, 478 Pa. 108, 385 A.2d 1337 (1978). Appellant’s Brief, p. 30. We note that there is serious doubt as to whether the courts of this Commonwealth still recognize a “mercy-dispensing” function on the part of the jury, see Commonwealth v. Hernandez, 412 Pa.Super. 485, 492, 603 A.2d 1039, 1043 (1992) (“mercy charge,” telling the jury that it may return a verdict for a less serious crime than was established by the evidence, “authoriz[es] the jury to return a verdict based upon an emotional reaction rather than the facts presented” and is improper). However, even if such a mercy-giving power were recognized, we could not consider the claim appellant raises herein. Lawson commands us to determine whether a second-time PCRA petitioner has shown a miscarriage of justice or the conviction of an innocent man. Appellant does not claim here that his conviction was not supported by the evidence, or is otherwise factually incorrect. The claim appellant raises here is not that he was denied justice, but that he was denied mercy. The Lawson threshold is therefore not met, and we will not consider this claim further.

Appellant’s fourth and fifth issues require a more detailed analysis. Both challenge the propriety of the jury charge given at appellant’s trial. The propriety of the jury charge is critical to the fairness of a trial and the validity of the conviction obtained therefrom. A grossly improper charge may, under certain circumstances, result in the conviction of an innocent individual or a miscarriage of justice. See, e.g., Commonwealth v. McFadden, 402 Pa.Super. 517, 522, 587 A.2d 740, 742 (1991) (Lawson standard met where trial counsel failed to request that the jury be charged on self-defense, despite evidence supporting such a charge). We find, however, that the charge given at appellant’s trial was not improper.

Appellant’s fourth claim is that his trial counsel was ineffective for failing to object to the progression charge on the grounds that the charge “positioned the court as a thirteenth juror and defeated the judge/jury relationship.” Appellant’s Brief, p. 34. Appellant argues that “[tjelling the jury where to start its deliberations and when to vote is not the role of the trial judge. It is the role of the jury themselves to determine these questions.” Ibid. Appellant acknowledges that we have already rejected precisely this argument in Commonwealth v. Hart, 388 Pa.Super. 484, 565 A.2d 1212 (1989), alloc. den., 525 Pa. 642, 581 A.2d 569 (1990). Appellant argues that Hart was wrongly decided. We disagree.

In Commonwealth v. Hart, we dismissed the claim that appellant’s counsel had been ineffective for failing to object to the progression charge given at his murder trial. We found that the progression charge was simply a structure for the jury’s deliberations where multiple forms or degrees of the same crime were charged, and did not inappropriately interject the judge in the jury’s determination of defendant’s guilt or innocence:

While the jury must serve as the sole finder of fact, the trial court has a duty to frame legal issues for the jury and instruct the jury on the applicable law. See Commonwealth v. Leonhard, 336 Pa.Super. 90, 95, 485 A.2d 444, 446 (1984). One method by which the court may choose to clarify issues for the jury is to direct the jury to consider at the outset the most serious form of the offense with which the defendant has been charged. If the jury were first to consider a less serious form of the offense, it might return a verdict of guilty of the lesser charge without determining whether the Commonwealth also proved the additional facts necessary to establish the more serious crime. By directing the jury to begin its deliberations -with the greater offense, the judge can help to ensure that the jury will bring its independent judgment to bear on all important aspects of the Commonwealth’s case. Thus, as a general rule, a progression charge is proper where the defendant is charged with different forms or degrees of the same crime.

Commonwealth v. Hart, supra, 565 A.2d at 1216.

We find that the progression charge given at appellant’s trial was proper. We therefore conclude that appellant suffered no miscarriage of justice on this aspect of the charge.

Appellant’s final claim is that his trial counsel was ineffective for failing to object to the trial court’s failure to instruct the jury on mitigating circumstances prior to instructing them on the most serious form of murder, murder in the first degree. Appellant claims that the trial court restricted its discussion of mitigating factors to the instruction on voluntary manslaughter, which was given much later in the jury charge. Appellant’s Brief, pp. 32-33. We do not find the error alleged by appellant to meet the Lawson standard.

The trial court began its charge by telling the jury that it had the right to find appellant guilty of any or none of the forms of criminal homicide charged in the case. The court then defined malice. Immediately after defining malice, and prior to defining first-degree murder, the trial court instructed the jury that:

[Kjilling is without malice if the killer acted under circumstances reducing the killing to voluntary manslaughter. I will tell you more about what constitutes circumstances reducing a killing to voluntary manslaughter when I define that crime.

N.T. 37. Again, in defining first-degree murder, the court stated that under that crime the jury had to find that defendant committed the killing “with malice ... As my earlier definition of malice indicates, a killing is with malice if it is with the specific intent to kill, not under circumstances reducing the killing to voluntary manslaughter.” N.T. 40. The court repeated this statement in its instruction on third degree murder. N.T. 42.

In its instruction on voluntary manslaughter, the court then went into more detail in describing the parameters of mitigating circumstances:

As my earlier definition of malice indicates, there can be no malice when certain reducing circumstances are present. When those circumstances are present, a killing may be voluntary manslaughter, but never murder. This is true when a defendant kills in the heat of passion following serious provocation.
Accordingly, you can find malice only if you are satisfied beyond a reasonable doubt that the Defendant was not acting under a sudden and intense passion resulting from serious provocation by the victim.
The term passion includes anger, rage, sudden resentment or terror which renders the mind incapable of cool reflection. Serious provocation is conduct that is sufficient to excite an intense passion in a reasonable person.

N.T. 43.

This review of the record demonstrates that the trial court did instruct the jury, prior to its instruction on first-degree murder and again during its instruction on first- and third-degree murder, that they could not find malice if certain mitigating (“reducing”) factors were present. Appellant argues that the failure to describe in more detail at those points in the charge what the mitigating circumstances were renders the progression charge improper. Appellant’s Brief, pp. 32-33. Appellant cites in support of this proposition the following language from Commonwealth v. Hart, supra:

We caution that a trial judge should carefully instruct the jury regarding factors that may be capable of rebutting an inference of malice. Whenever the trial judge gives a progression charge in a homicide case, he should accompany the charge with an instruction that they must take any evidence of ‘heat of passion’ or ‘unreasonable belief into account when initially determining whether the Commonwealth has established the malice element of murder beyond a reasonable doubt. Without proper instructions regarding malice, the jury might misinterpret the progression charge as mandating a conviction for murder despite the presence of mitigating evidence establishing ‘heat of passion’ or ‘unreasonable belief.’

565 A.2d at 1218.

Appellant cites the above paragraph from Hart for the proposition that a progression charge is invalid unless the court gives a fuller description of what would constitute the mitigating circumstances referred to prior to defining any degree of murder; rather than, as the court did here, give the fuller description within the instruction on voluntary manslaughter. Appellant’s Brief, pp. 32-33. We disagree. Our concern in Hart was that the jury be made aware that mitigating circumstances are relevant to the question of whether a defendant is guilty of first- or third-degree murder (because they go to the issue of whether malice has been shown), rather than mistakenly confining their consideration of such circumstances to the question of whether defendant is guilty of voluntary manslaughter. As set forth above, the trial court in appellant’s trial clearly informed the jury that mitigating circumstances can negate a finding of malice necessary to convict for first- or third-degree murder. In its charge on voluntary manslaughter, the court defined in detail what those mitigating circumstances might be. Therefore, when the jury began its deliberations, it knew both that mitigating circumstances must be considered in determining guilt or innocence on all the crimes charged, first- and third-degree murder as well as voluntary manslaughter, and what those mitigating circumstances were.

We find that the trial court’s progression charge was proper. We therefore find that appellant has not met the Lawson standard of showing a miscarriage of justice or his innocence as to this claim.

All of appellant’s claims being barred by Commonwealth v. Lawson, we affirm the denial of his PCRA petition.

Order affirmed.

      . 519 Pa. 504, 549 A.2d 107 (1988).

      . The petition in Lawson was brought under the PCHA; however, it is clear that the Lawson standard applies to claims brought under the PCRA as well. See, e.g., Commonwealth v. Dukeman, 413 Pa.Super. 397, 605 A.2d 418 (1992); Commonwealth v. Brimage, 398 Pa.Super. 134, 580 A.2d 877 (1990); Commonwealth v. Ryan, 394 Pa.Super. 373, 575 A.2d 949 (1990); Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989). See also the Comment to Pa.R.Crim.P. 1507, Disposition Without Hearing, effective July 1, 1989, which states that "[a] second or subsequent motion should be summarily dismissed when the judge determines that the defendant has failed to make a strong prima facie showing that a miscarriage of justice may have occurred,” citing Lawson.

      . The Supreme Court noted that the new PCRA required that an individual alleging ineffective assistance of counsel must prove that counsel’s action "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place,” 42 Pa.Cons.Stat. § 9543(a)(2)(h), which the Court stated "clearly reflect[s] a legislative perception that courts had been too generous in entertaining claims for relief under the former statute.” 549 A.2d at 112, n. 12.

      . We have also recognized one exception to Lawson’s applicability, in Commonwealth v. Thomas, 396 Pa.Super. 92, 578 A.2d 422 (1990). In that case, this court had initially denied the appeal of Thomas’ first PCRA petition, without prejudice, because Thomas' counsel failed to file briefs. Thomas' second petition raised again precisely the issue raised in his first. But for counsel’s procedural default, we would have addressed this issue in Thomas’ appeal of the denial of his first petition. We found that under the unique circumstances of the case, we would treat petitioner's second petition as a first attempt under the PCRA, and that therefore Lawson did not bar the petition. We noted that because Thomas was raising the same claim in his second petition as he had in his first, the abuse at which Lawson’s preventive rule was aimed (i.e., serial petitions, each raising a new issue allegedly overlooked through the ineffectiveness of all prior counsel) was not at issue. 578 A.2d at 424. This limited exception to Lawson does not apply to appellant here.

      . Appellant also appears to argue that the progression charge "dilutes” the voluntary manslaughter charge to which he is entitled. See Appellant’s Brief p. 27. This argument is unsupported by citation of any authority, or any convincing argument as to how this "dilution” establishes that a miscarriage of justice which no civilized society can tolerate has occurred or that appellant is innocent.

      . Appellant also cites a variety of federal cases in support of his fourth claim of error, such as United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3rd Cir.1974), United States v. Spock, 416 F.2d 165 (1st Cir.1969), and United States v. Desmond, 670 F.2d 414 (3rd Cir.1982). We note that we are not bound by those federal decisions.

      . We note that appellant restricts his argument to the mitigating circumstance of “heat of passion,” see Appellant’s Brief, pp. 27, 32-33, 38; he has never suggested that the trial court should have given an “unreasonable belief” instruction.


author: WIEAND, Judge:

text:
    618 A.2d 471
    Peter J. NASTASIAK and Patricia L. Nastasiak, Appellants, v. SCOVILLE ENTERPRISES, LTD., Russell A. Raynes, Jr., Karl W. Blessing, Othilde Blessing, John and/or Jane Doe, Appellees.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1992.
    Filed Jan. 6, 1993.

      Joel S. Luber, Paoli, for appellants.
    William J. Gallagher, West Chester, for appellees.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   WIEAND, Judge:

In this appeal we are asked to review an order which denied a request to strike the discontinuance of an action entered by counsel without the knowledge or consent of his client. After careful review, we conclude that the trial court abused its discretion; and, therefore, we reverse.

On March 12, 1985, Peter Nastasiak and Patricia Nastasiak, minority shareholders, filed a complaint in mandamus against their corporation, Scoville Enterprises, Ltd., and Karl Blessing, a corporate officer, seeking, inter alia, an inspection of corporate books and records to determine whether corporate assets had been mismanaged or misappropriated. On March 6, 1986, the Nastasiaks filed a second action, this time in equity, against Scoville Enterprises, Ltd. and also against Russell A. Raynes, Jr., Karl W. Blessing, Othilde Blessing and John and/or Jane Doe. In this action, the Nastasiaks requested an injunction preventing the individual defendants from continuing to manage the corporation’s business. They also claimed damages for mismanagement of corporate assets, various breaches of fiduciary responsibilities and conspiring to defraud minority stockholders. On June 5, 1990, this second action was discontinued by the lawyer who was representing the Nastasiaks. From the record before this Court for review, the reason for the discontinuance remains unexplained. It appears, however, that it was done without the consent or even the knowledge of the Nastasiaks.

By October, 1990, the Nastasiaks were dissatisfied with the progress being made in asserting their claims against the corporation and, therefore, consulted present counsel. It was his examination of the record which, in March, 1991, led to a discovery that the equity action had been discontinued. Prior counsel was dismissed, and present counsel, on June 5, 1991, entered an appearance on the claimants’ behalf.

On June 18, 1991, present counsel appeared in court to argue three outstanding motions for sanctions which had been filed by prior counsel on Nastasiaks’ behalf. He represents that the motions were denied because there remained no viable action for damages. Therefore, the claimants filed a petition to remove the discontinuance of the equity action. This petition was denied by the trial court on January 23, 1992. In support of its order, the trial court cited the delay between March, 1991, when the claimants discovered that the equity action had been discontinued, and September 5, 1991, when the claimants filed their petition to strike the discontinuance.

Authority for striking off a discontinuance appears in Pa. R.C.P. 229(c) as follows:

(c) The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense or prejudice.

“The authority to strike off a discontinuance is vested in the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion.” Hopewell v. Hendrie, 386 Pa.Super. 264, 266, 562 A.2d 899, 900 (1989), allocatur denied, 525 Pa. 618, 577 A.2d 890 (1990). The trial court’s discretion, however, is not unlimited. R.C.P. 229(c) expressly provides for the striking of a discontinuance when necessary to protect either party from unreasonable inconvenience, vexation, harassment, expense or prejudice. Id.

The decided cases have held that a trial court does not abuse its discretion by refusing to strike off a discontinuance where (1) the plaintiff was fully aware that his or her lawyer had entered a discontinuance and the lawyer had been authorized to enter a discontinuance upon the client’s receipt of monetary consideration, Thomas v. Hempt Brothers, 402 Pa. 369, 167 A.2d 315 (1961); (2) the plaintiff was unable to prove that the discontinuance was a result of fraud, imposition or mistake, Murdoch v. Murdoch, 418 Pa. 219, 210 A.2d 490 (1965); (3) the discontinuance was entered to enable the plaintiff to bring a new action in another court, Pratt v. Best Builders of Pennsylvania, Inc., 3 D. & C.3d 149 (Chest.1977).

However, in Hopewell v. Hendrie, supra, where the circumstances were similar to those in the instant case, the Superior Court found that the trial court’s refusal to strike the discontinuance had constituted an abuse of discretion. There, in a wrongful death action arising from an automobile accident, co-counsel for the plaintiff had divided responsibilities between themselves for pursuing the action. One of the lawyers, inexplicably and without the knowledge of the client or co-counsel, caused the action to be marked, “Case settled, discontinued and ended.” Later, counsel conceded that he had acted in error. Meanwhile, co-counsel prepared for trial and did not learn of the “discontinuance” until after the case had been listed for trial. Within one month thereafter, but almost ten months after the action had been marked “Discontinued,” trial counsel moved to strike the discontinuance. The trial court denied the motion, holding that the plaintiff had been guilty of inexcusable delay and that the defendant had been prejudiced by the discontinuance. The Superior Court reversed. It determined that, having been filed within a month of discovering the discontinuance, the motion to remove the discontinuance was timely. With respect to the issue of prejudice, the Court said:

We note first that Rule 229(c) does not expressly require that the court consider any possible prejudice to the party opposing the striking of the discontinuance. However, the rule does focus on prejudice and we consider it appropriate to consider prejudice to both sides and balance the competing interests of the. parties.
On the surface, it is clear that appellees will be prejudiced in the sense that they will have to defend the action. However, we do not see this as the kind of prejudice that should be focused on.... The prejudice that is relevant is the impact on the defendant’s ability to defend. We must focus on whether allowing the action to proceed after it had been discontinued will put the defendant at any significant disadvantage.

Id. at 268, 562 A.2d at 901. The Superior Court determined that the ten month discontinuance had not impacted adversely on the defendant’s ability to defend, but that plaintiff would be seriously prejudiced if he could not proceed because a second action would be barred by the statute of limitations.

The record in the instant case, as we have already observed, does not contain an explanation for counsel’s discontinuance of the action in equity. It does not appear that the discontinuance was entered to obtain any procedural advantage for counsel’s clients, and it does not appear that it was entered by and with the knowledge or consent of the clients. A lawyer, acting as attorney for a client, lacks either implied or apparent authority to do an unauthorized act which results in the surrender of a substantial right by the client. Garnet v. D’Alonzo, 55 Pa.Commw. 263, 266, 422 A.2d 1241, 1242 (1980). The client is the master of his cause of action; he may press it to the end, regardless of the weakness thereof. Archbishop v. Karlack, 450 Pa. 535, 539, 299 A.2d 294, 296 (1973).

The trial court, although acknowledging the precedential effect of Hopewell v. Hendrie, supra, found it inapplicable because of appellant’s delay in moving to strike the discontinuance. However, it is inherent in the Hopewell decision that delay alone will not bar relief unless an adverse party has been prejudiced by such delay. Rule 229(c) does not establish a time within which a motion to strike a discontinuance must be filed. Indeed, it is possible, as in Hopewell and the instant case, that a discontinuance may be entered without the immediate knowledge of the party whose action has been discontinued.

In the instant case, there remains pending an action of mandamus between the parties, and it does not appear that the ability of the defendant-appellees to defend the equity action has been impaired by appellants’ delay in moving to strike the discontinuance. On the other hand, to compel the plaintiff-appellants to rely on a new action will not serve judicial efficiency and may prejudice appellants by limiting the period for which relief can be granted or barring the same in its entirety.

Appellees argue that they will be prejudiced by being required to defend the equity action and the several discovery requests which were filed therein. As the Court observed in Hopewell v. Hendrie, supra, this is not the type of prejudice upon which a court should focus in determining whether to strike a discontinuance. Moreover, and in any event, a new action would likely produce the same requests for discovery and a similar need to defend as the original action.

It is true that R.C.P. 229(c) may initially have been intended to benefit a defendant against whom baseless charges were made or multiple actions filed. However, its language is general, and we perceive no valid reason, either expressly stated or appearing by necessary implication from the language of the rule, for refusing to apply it to benefit a plaintiff whose attorney has acted without authority to discontinue an action under circumstances causing the substantive rights of the client to be impaired or prejudiced.

The order of the trial court is reversed. The unauthorized discontinuance is stricken, and the case is remanded for further proceedings. Jurisdiction is not retained.

      . This assertion by counsel of the reason for the court’s ruling cannot be confirmed from the record in the action now before this Court for review.

      . The trial court initially denied the claimants’ petition on January 16, 1992. This order was amended on January 23, 1992 in order to correctly reflect claimants’ discovery of the discontinuance in March, 1991.

      . It has not been argued or even suggested that the equity action was filed so that discovery could be utilized to obtain an inspection of documents sought to be recovered in the original action of mandamus.


author: KELLY, Judge:

text:
    618 A.2d 945
    Phyllis R. STIDHAM, Administratrix of the Estate of Brett Chadwick Stidham, Deceased, Appellant, v. The MILLVALE SPORTSMEN’S CLUB and the Plane View Inn v. Robert E. McLAUGHLIN.
    Superior Court of Pennsylvania.
    Argued Aug. 26, 1992.
    Filed Nov. 13, 1992.
    Reargument Denied Jan. 25, 1993.

      Robert L. Byer, Pittsburgh, for appellant.
    Alan T. Silko, Pittsburgh, for participating party.
    Before MONTEMURO, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this appeal we must again consider the comprehensive homeowner’s insurance policy provision excluding coverage for bodily injury or property damage which is expected or intended by the insured. Specifically, we must decide the extent to which a guilty plea by an insured to third degree murder in a prior criminal proceeding forecloses the victim of the harmful conduct from litigating, in an underlying civil action, the issue of the insured’s intent. We find that the trial court erred in summarily applying the doctrine of collateral estoppel, thereby dispatching the victim’s garnishment action against the insurer. Furthermore, the pleadings and affidavits demonstrate a genuine triable factual issue such that the insurer was not entitled to judgment as a matter of law. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

The trial court opinion set forth the undisputed facts as follows:

In 1988, Robert E. McLaughlin was insured under a home owner’s policy issued by Aetna [Casualty and Surety Company] which contained a bodily injury liability limit of $50,000. The policy contained the standard exclusion for injuries which are “expected or intended” by the insured.

This lawsuit arises out of an incident which occurred on June 19, 1988, in which McLaughlin shot and killed Brett Stidham. In December 1988, the Administratrix of the Estate of Brett Stidham filed wrongful death and survival actions against a club (Millvale Sportsmen’s Club) and a bar (Plane View Inn) at which McLaughlin had consumed alcohol prior to the shooting. In September 1989, Millvale and Plane View joined McLaughlin as an additional defendant. The complaint joining McLaughlin alleged negligent, careless, reckless, and/or willful conduct. At the time he was joined, McLaughlin had pleaded guilty to third degree murder, three counts of aggravated assault, recklessly endangering another person, and criminal mischief and was incarcerated in the state correctional facility.

McLaughlin requested Aetna to provide coverage and a defense under the policy. Aetna denied coverage and declined to defend McLaughlin [in a letter to McLaughlin, dated June 1, 1990].

Plaintiffs claims against the original defendants and the additional defendant were tried before the Honorable David S. Cercone between January 7, 1991, and January 11, 1991. During the trial, which included the testimony and cross-examination of McLaughlin and his wife, plaintiff settled the claims against Millvale and Plane View. The remainder of the case continued as a non-jury trial. At the conclusion of the trial, Judge Cercone rendered a verdict in plaintiffs favor and against McLaughlin in the amount of $1,250,000. Delay damages were added to the verdict resulting in a total molded verdict of $1,474,503.43. A judgment was entered against McLaughlin in that amount.

Plaintiff then instituted this garnishment proceeding to recover the entire judgment with interest, based upon Aetna’s alleged breach of its fiduciary duty to its insured and bad faith conduct with respect to its investigation of the claim against its insured, its denial of coverage to the insured, its failure to settle the claim against the insured within the policy limits and its exposing its insured to a foreseeable and substantial excess verdict.

McLaughlin has assigned plaintiff any causes of action which he may have against Aetna arising out of its denial of coverage and its failure to settle plaintiffs claim against Aetna within the policy limits. However, McLaughlin has retained his right to assert claims for attorney’s fees and costs incurred in defending the underlying proceedings.

If permitted to do so, plaintiff would be able to introduce evidence that could establish the following facts at trial:

At the time of the shooting, McLaughlin was a fifty-three year old man who had been married to Eileen McLaughlin for more than thirty years. They had twelve children, most of whom were college graduates. He was an army veteran and a former union boilermaker. He had never been arrested and had no history of violent behavior. He was an active member of St. Bonaventure Church. He was an avid sportsman, who enjoyed hunting and fishing. For a short period of time, he owned a bait and tackle shop. He seldom drank alcohol.

On a few occasions in his life, he drank alcoholic beverages to excess. On these occasions, he suffered from an alcohol amnestic syndrome or, in layman’s terms, an alcoholic blackout. During those periods of time, he had no conscious awareness of his actions and no memory of events.

The date of the shooting was Father’s Day. McLaughlin planned to shoot skeet at the Millvale Sportsmen’s Club and then to attend a family dinner at his home. He had been a member of the Millvale Sportsmen’s Club for approximately fifteen years. The shooting range was crowded and several members invited him to drink alcoholic beverages with them in the bar area. He consumed a substantial amount of alcohol and began to lose awareness of his actions. After leaving the Millvale Sportsmen’s Club, he has limited recollection of events. He recalls driving on Route 8, stopping at a store, and later entering the Plane View Inn.

At the Plane View Inn, he consumed two shots of Jim Beam and two draft beers. McLaughlin did not know any of the persons in the bar and he did not speak to anyone in the bar. He did not feel or appear to be angry, agitated, or hostile.

Brett Stidham (age twenty-two) and a friend were at the Plane View Inn at the time. Stidham was employed as a technician for TEI Analytical Services, Inc. His friend and he had driven to Butler to retrieve his work clothes. On the return trip from Butler, Stidham and his friend stopped at the Plane View Inn because Stidham was interested in motorcycles and had observed a motorcycle with a side car in the parking lot. Stidham, his friend, and the owner of the motorcycle were seated across the bar from McLaughlin. These three persons did not have any conversation with McLaughlin.

McLaughlin left the bar and went to his truck. He reentered the bar with his shot gun. He does not remember using the gun. He remembers leaving the bar when he heard shattering glass. He proceeded to drive home.

When he arrived at home, he was slumped over the wheel of his car. His wife and his son carried him to his room where he became ill. He slept the rest of the night. The following morning, he was reading an article in The Pittsburgh Post Gazette which discussed a shooting that had occurred in the Plane View Inn. Although he had no awareness of participating in such a shooting, he felt that he was in the bar and that he might have had some connection with it.

Although he was not a suspect at the time, he called his priest, went to his church and made a confession. He then went to the State Police, where he proceeded to give a statement. McLaughlin was subsequently charged with the crimes of third degree murder and aggravated assault. During the criminal proceedings, McLaughlin was represented by H. David Rothman, Esquire. McLaughlin was examined by a psychologist, psychiatrist, and neurologist who prepared reports concerning the incident.

On November 18, 1988, McLaughlin entered a guilty plea to the crimes of third degree murder and aggravated assault. At the colloquy that took place at the guilty plea, McLaughlin stated under oath:

Q. And are you content to enter a plea of guilty to murder of the third degree as I have described it to you?
A. Yes, I am.
Q. Do you realize that does not require proof of a specific intent to kill? Do you understand that?
A. Yes.
Q. Did you have a specific intent to kill or hurt anybody that day?
A. No, I didn’t.
Q. All right. As to the three counts of aggravated assault, wherein persons were either seriously or otherwise injured, again, that does not require proof of a specific intent to harm; do you understand that?
A. Yes, I do.
Q. In connection with the homicide charge, even if you did not comprehend what you were doing at the time, the law of Pennsylvania does not equate that to legal insanity. Do you understand that?
A. Yes, I do.

After the guilty plea, McLaughlin was sentenced to a prison term of twenty to forty years.

At the trial of this present cause of action, plaintiff will also be able to introduce evidence that would establish the following facts with respect to Aetna’s response to McLaughlin’s request to provide coverage and a defense:

The criminal lawyers who were handling the appeal of McLaughlin’s sentence asked Aetna to defend McLaughlin in the underlying action and to cover the claim. The lawyers supplied Aetna with case law which in their opinion established that Aetna had a duty to enter an appearance based on the allegations in the complaint. Aetna did not conduct any investigation into the incident, did not consult legal counsel, and did not obtain a copy of the complaint to join its insured. It nevertheless denied coverage [on June 1, 1990,] six months after the claim had been submitted.

Prior to the trial of the underlying action, plaintiffs counsel also contacted Aetna. On June 19, 1990, plaintiffs counsel mailed a letter and memorandum of law to the Aetna claim manager, James R. Hayes, stating that Aetna’s denial of coverage was in bad faith. The letter further informed Aetna that the damages in the Stidham case were far in excess of the policy limits. Thus, Aetna’s insured might be subject to a large excess verdict. The letter also said that plaintiff would look to Aetna to pay any excess as a result of the improper denial of coverage.

On September 12, 1990, plaintiffs counsel mailed a second letter to Mr. Hayes notifying him of the date of the trial. The letter included expert reports indicating that the actions of Aetna’s insured were not intentional. The letter stated that Aetna was improperly claiming that coverage was excluded based on the intentional acts exclusion contained in its policy. Again, Aetna was informed that plaintiff would seek to recover any excess verdict rendered against its insured based on Aetna’s bad faith denial of the claim. Plaintiffs counsel did not receive a response to either letter.

Through discovery directed to former and present employees of Aetna who were involved in the investigation of McLaughlin’s claim, plaintiff will be able to establish that Aetna denied coverage solely on the basis of McLaughlin’s entering a guilty plea to the crimes of third degree murder and aggravated assault. Aetna did not attempt to determine McLaughlin’s mental and emotional condition at the time he committed the acts for which he seeks coverage.

Trial Court Opinion, 12/11/91, at 1-8.

In its motion for summary judgment, Aetna asserted that McLaughlin’s conduct fell within the insurance policy exclusion provision barring coverage for bodily injury “expected or intended” by the insured. Aetna submitted McLaughlin’s prior negotiated plea to third degree murder as sole support for its position, arguing that the guilty plea conclusively settled the issue of intent. Furthermore, Aetna maintained that McLaughlin’s guilty plea precluded appellant from litigating this intent issue because appellant, as assignee of McLaughlin’s rights under the policy, takes these rights subject to all Aetna’s defenses against McLaughlin. The trial court granted Aetna’s motion for summary judgment and dismissed appellant’s garnishment proceeding, holding that McLaughlin’s guilty plea was conclusive evidence of his intent. Therefore, McLaughlin’s acts fell within the purview of the exclusion provision. Thus, held the trial court, Aetna had no duty to defend McLaughlin nor to indemnify him. Appellant, Phyllis Stidham, brought this timely appeal.

II. STANDARD OF REVIEW

The scope of appellate review of a grant of summary judgment involves the following principles. First, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, must demonstrate that there exists no genuine, triable issue of fact. Pa.R.C.P. 1035(b). Second, the record must show that the moving party is entitled to judgment as a matter of law. Id. The court must examine the record in the light most favorable to the non-moving party, resolving all doubts against the moving party. Kerns v. Methodist Hosp., 393 Pa.Super. 533, 536-37, 574 A.2d 1068, 1069 (1990); Knecht v. Citizens & Northern Bank, 364 Pa.Super. 370, 373-74, 528 A.2d 203, 205 (1987). It is fundamental that the moving party’s evidence must clearly exclude any genuine issue of material fact. Aimco Imports v. Industrial Valley Bank, etc., 291 Pa.Super. 233, 435 A.2d 884 (1981). Aetna’s submissions do not satisfy this requirement. The record fails to resolve unequivocally the issue of McLaughlin’s intent because his guilty plea to third degree murder does not necessarily bring his conduct within the intentional acts exclusion clause in Aetna’s policy.

III. GUILTY PLEA

A person is guilty of criminal homicide if that person intentionally, knowingly, recklessly, or negligently causes the death of another human being. 18 Pa.C.S.A. § 2501. Murder is defined as follows:

§ 2502. Murder

(a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree.—A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree.—All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
(d) Definitions.—As used in this section the following words and phrases shall have the meaning given to them in this subsection:
>■« K* H4
“Intentional Killing.” Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.

18 Pa.C.S.A. § 2502. Differences among murder classifications turn largely on the perpetrator’s state of mind. Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977). In order to prosecute for third degree murder, the Commonwealth is not required to prove a specific intent to kill. Commonwealth v. Frederick, 327 Pa.Super. 199, 475 A.2d 754 (1984). Malice is the essential element or gravamen of third degree murder, the distinguishing factor between murder and manslaughter. Commonwealth v. Smouse, 406 Pa.Super. 369, 594 A.2d 666 (1991); Commonwealth v. White, 366 Pa.Super. 538, 531 A.2d 806 (1987), appeal denied, 520 Pa. 605, 553 A.2d 967 (1988).

Legal malice exists where there is particular ill-will, or where there is wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Commonwealth v. Austin, 394 Pa.Super. 146, 153, 575 A.2d 141, 145 (1990). In addition, malice may be inferred from the use of a deadly weapon upon a vital part of the body. Commonwealth v. Pigg, 391 Pa.Super. 418, 428, 571 A.2d 438, 441 (1990), appeal denied, 525 Pa. 644, 581 A.2d 571 (1990). The malice necessary to support a murder conviction may also exist where the principal acts in gross deviation from the standard of reasonable care, failing to perceive that such actions might create a substantial and unjustifiable risk of death or serious bodily injury. In Interest of Smith, 396 Pa.Super. 624, 637, 579 A.2d 889, 895 (1990).

The Smith definition of malice applies in this case. McLaughlin consistently stated that he had only fragmentary memories of the shooting event. Specifically, he did not remember getting his gun and re-entering the tavern. Moreover, McLaughlin had no prior contact with the decedent. In fact, McLaughlin suffered from an alcoholic blackout as a result of his extreme intoxication. Thus, his precise degree of conscious awareness was never determined in the criminal proceedings.

Quite simply, Aetna argues that McLaughlin’s guilty plea to third-degree murder constitutes an admission to the malice required to support such a conviction. While this contention is true, in general, it is not necessarily conclusive proof of any conscious or knowing action by McLaughlin which would bring his actions within Aetna’s policy exclusion. The inquiry cannot end here. The plurality opinion in Commonwealth, Dept. of Transp. v. Mitchell, 517 Pa. 203, 212, 535 A.2d 581, 585 (1987) stated that a guilty plea constitutes an admission to all facts averred in the indictment. We, therefore, examine the criminal information detailing the charges brought against McLaughlin in order to determine just what he admitted by virtue of his guilty plea.

McLaughlin was charged with and admitted to acts done “intentionally, knowingly, recklessly or negligently” causing the death of Brett C. Stidham. Whether McLaughlin was consciously aware of his acts or their consequences was not decided at the guilty plea hearing.

Aetna argues that the degree of conscious awareness need not be determined since McLaughlin’s guilty plea establishes malice. We have already noted that legal malice may be predicated on a failure to perceive the risk an action can take. In Interest of Smith, supra. Accordingly, McLaughlin’s guilty plea remains ambiguous enough to have no conclusive effect on a subsequent civil action against Aetna.

Aetna relies on several recent decisions of this Court for its conclusion that the commission of third degree murder precludes an insured from obtaining coverage within his homeowner’s insurance policy. In Donegal Mutual Ins. Co. v. Ferrara, 380 Pa.Super. 588, 552 A.2d 699 (1989), the insured repeatedly kicked a police officer in the groin during the course of her arrest. In the ensuing civil damage action against the insured, the officer was unable to recover damages through the insured’s homeowner’s policy. In Germantown Ins. Co. v. Martin, 407 Pa.Super. 326, 595 A.2d 1172 (1991), the insured killed two persons in a shooting spree, wounded another, then shot and killed himself. These victims were also precluded from recovery under the insured’s homeowner’s policy. In both cases, however, the insured’s intent was conclusively established by evidence independent of any unilateral guilty plea. Accordingly, Aetna’s reliance on these cases is misplaced.

“In Pennsylvania, judgments in criminal cases for years were held inadmissible to establish facts in a civil case.” Hurtt v. Stirone, 416 Pa. 493, 497, 206 A.2d 624, 626 (1965) (citations omitted). The Hurtt court stated that decisions recent to that case tended to establish a trend away from such a rigid rule. Id. See, e.g., Pennsylvania Turnpike Comm. v. United States Fidelity & Guaranty Co., 412 Pa. 222, 194 A.2d 423 (1963) (holding that surety was bound by principal’s criminal liability when the very issues sought to be litigated had been exhaustively and conclusively litigated in the prior criminal proceedings). With this trend in mind, the Hurtt court concluded that proof of an extortion conviction was conclusive evidence of the act of extortion. Hurtt v. Stirone, supra. Relying on Hurtt, this Court stated in In re Estate of Reinert, 367 Pa.Super. 147, 153, 532 A.2d 832, 835 (1987), that a theft conviction is conclusive evidence of the fact that the theft occurred. In both Hurtt and Reinert, the criminal defendants were seeking to avoid restitution. Consequently, these courts found the felony extortion convictions must bar such avoidance.

Evidence of a guilty plea is admissible in a civil action as an admission against interest. Cromley v. Gardner, 253 Pa.Super. 467, 385 A.2d 433 (1978). The Cromley court concluded that while a guilty plea might be no more than a trial technique whereby the defendant seeks to avoid a lengthy trial, a guilty plea should be admissible where it can “considerably elucidate” the issues. In that case, the guilty plea was clearly indicative of defendant/appellee’s guilt of driving under the influence. As such, the court found the plea admissible in the subsequent wrongful death and survival action.

More recently, in Folino v. Young, 368 Pa.Super. 220, 533 A.2d 1034 (1987), this Court found that a summary conviction of driving at an unsafe speed was admissible in a subsequent civil action for damages arising out of a collision where the driving conviction formed the basis for the defendant’s conviction for vehicular homicide. The Court reasoned that the defendant had had his day in court in his attempt to avoid conviction for homicide by vehicle. Since there was no conflict of evidence regarding the defendant’s negligence, such evidence was admissible in the civil action.

Having reasoned (1) that criminal convictions are admissible in civil actions arising from the same operative facts and circumstances, (2) that these convictions are conclusive evidence of the criminal acts, and (3) that the criminal convictions can bar recovery under a homeowner’s policy where the intent of the insured is independently established, we find that McLaughlin’s guilty plea of third-degree murder while severely intoxicated does establish that McLaughlin did shoot and kill Brett Stidham. McLaughlin’s guilty plea, however, does nothing to enlighten us regarding his intent to shoot and kill Brett Stidham. While admissible in an underlying civil action, this guilty plea is hardly conclusive evidence of McLaughlin’s intent thereby operating as a bar to recovery under his Aetna homeowner’s policy. Because McLaughlin’s intent remains a material, factual issue, not excluded by Aetna’s evidence, summary judgment in favor of Aetna was inappropriate.

IV. INTENT

For the purposes of the insurance policy provision excluding coverage for expected or intended injuries by the insured, “an insured intends an injury if he desired to cause the consequences of his act or if he acted knowing that such consequences were substantially certain to result.” United Services Auto. Ass’n. v. Elitzky, 358 Pa.Super. 362, 375, 517 A.2d 982, 989 (1986), appeal denied, 515 Pa. 600, 528 A.2d 957 (1987). Moreover, imbibed intoxicants must be considered in determining if the actor has the ability to formulate an intent. Nationwide Mut. Ins. Co. v. Hassinger, 325 Pa.Super. 484, 493, 473 A.2d 171, 176 (1984). If the actor does not have the ability to formulate an intent, the resulting act cannot be intentional. Id. Finally, intent to become intoxicated does not prove an intent to commit an offense. Commonwealth v. Pitts, 486 Pa. 212, 218, 404 A.2d 1305, 1308 (1979) (citations omitted).

After a thorough exegesis of the expected or intended harm clause, this Court, in Elitzky, held that the clause is ambiguous as a matter of law and must be construed against the insurer. Elitzky, supra 358 Pa.Super. at 375, 517 A.2d at 989. The Elitzky court further held that the words “expected” and “intended” are synonymous when interpreting these exclusionary clauses. Id. at 380, 517 A.2d at 991. “Both terms connote an element of conscious awareness on the part of the insured.” Id. at 379, 517 A.2d at 991 (emphasis added).

In light of the foregoing discussion and holdings, we find that Phyllis Stidham’s complaint does state a cause of action which Aetna may be compelled to cover. Thus, summary judgment was inappropriately granted to Aetna.

V. DUTY TO DEFEND

Where a claim is potentially within the scope of an insurance policy, the insurer who refuses to defend at the outset does so at its own peril. Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 589, 152 A.2d 484, 488 (1959). The underlying complaint fixes the parameters of an insurer’s obligation to defend its insured. Harford Mut. Ins. Co. v. Moorhead, 396 Pa.Super. 234, 238-39, 578 A.2d 492, 494-95 (1990) (citations omitted); Elitzky, supra at 368, 517 A.2d 982 at 985. In the event that the complaint alleges a cause of action which may fall within the coverage of the policy, the insurer is obligated to defend. Id. If coverage (indemnification) depends upon the existence or nonexistence of undetermined facts outside the complaint, until the claim is narrowed to one patently outside the policy coverage, the insurer has a duty to defend claims -against its insured. Germantown Insurance Company v. Martin, 407 Pa.Super. 326, 595 A.2d 1172 (1991); United Services Auto. Ass’n. v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982 (1986); C. Raymond Davis & Sons, Inc. v. Liberty Mutual Ins. Co., 467 F.Supp. 17 (E.D.Pa.1979); Lee v. Aetna Casualty and Surety Co., 81 F.Supp. 1008 (S.D.N.Y.1949), aff'd, 178 F.2d 750 (2nd Cir.1949).

Aetna relies on the complaint to join the additional defendant McLaughlin as dispositive of its obligation to defend its insured. This complaint alleges that Brett Stidham’s injuries were caused by the negligence, carelessness, recklessness, and/or willful conduct of Aetna’s insured. This complaint, like the criminal information, is worded broadly enough to create a potentially covered claim. In its letter to McLaughlin dated June 1, 1990, denying coverage and defense, Aetna states that the incident in question would be considered an intentional act. Aetna did not, however, pursue the available declaratory judgment procedure at the outset in order to definitively determine its duty to defend McLaughlin. A declaratory judgment action, though not specifically required by law, might have resolved at the outset the question of Aetna’s duty to defend. Until the issue of McLaughlin’s intent was resolved, however, Aetna had a duty to provide a defense for its insured. In addition, a declaratory judgment action would have provided a forum for all persons asserting claims on the issue of coverage between the insured and his insurance carrier. The criminal proceedings wherein McLaughlin pled guilty to third degree murder cannot substitute for a declaratory judgment action because all indispensable parties were not involved in that proceeding. See Vale Chemical Co. v. Hartford Accident and Indemnity Co., 512 Pa. 290, 516 A2d 684 (1986); Harleysville Mutual Ins. Co. v. Madison, 415 Pa.Super. 361, 609 A.2d 564 (1992); Township of Pleasant, Warren Cty. v. Erie Ins. Exchange, 22 Pa.Cmwlth. 307, 348 A.2d 477 (1975).

VI. COLLATERAL ESTOPPEL

Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment. City of Pittsburgh v. Zoning Bd. of Adj., 522 Pa. 44, 55, 559 A.2d 896, 901 (1989) (citations omitted). The inquiry must be as to the point or issue actually litigated in the prior action. Zarnecki v. Shepegi 367 Pa.Super. 230, 238, 532 A.2d 873 (1987), appeal denied, 518 Pa. 643, 542 A.2d 1371 (1988), citing Keystone Bldg. Corp. v. Lincoln Sav. & Loan Assoc., 468 Pa. 85, 91, 360 A.2d 191, 195 (1976).

We have already discussed that in our jurisdiction, the victim of a criminal act is precluded from litigating the issue of the insured actor’s intent where that intent has been established by independent evidence in the prior criminal proceedings. See Germantown Ins. Co. v. Martin, supra; Commonwealth v. Pigg, supra. We recognize, however, that the instant case involves McLaughlin’s unilateral plea bargain in a criminal proceeding to which Phyllis Stidham was not a party. Moreover, McLaughlin’s intent was never fully, fairly and definitively litigated in that criminal proceeding. Nor was the determination of McLaughlin’s intent essential to his conviction. Thus, McLaughlin’s guilty plea to third degree murder cannot preclude Phyllis Stidham from litigating the issue of intent in a subsequent civil action.

In fact, Phyllis Stidham brought her civil action against the taverns which joined McLaughlin as an additional defendant. Aetna was on notice of this proceeding but, again confident of its legal position, refused both to defend its insured and to participate in the action.

The trial court in that civil action made limited findings as follows:

After consideration of the evidence that’s been presented in this case, the Court is prepared to make a limited number of findings of fact and to render a verdict in the case. After consideration of the testimony that’s been presented and the facts that were presented through the mouths of counsel by way of stipulation and also the reports, the Court finds that, as a matter of fact, the defendant, Mr. McLaughlin, in the case, did voluntarily engage in the consumption of a vast amount of alcoholic beverages on the date of the incident. The Court further finds that the defendant at that time was aware of physical effects that he had experienced in the past caused by engaging in the consumption of alcohol. I am referring to the testimony given of his experienced alcohol-induced blackouts in the past. The Court further finds that the defendant was aware that he was in the possession of and under the control of a firearm on the date and at the time when he was drinking. I find that the defendant’s engaging in the consumption of the alcohol knowing of these blackouts and also being aware of the proximity of the firearm and ammunition on the date in question constitutes negligence, accordingly; and, furthermore, that the negligence was the legal cause of the harm suffered by the plaintiffs in the case.
Therefore, this 11th day of January, 1991, the Court in its nonjury fashion in the case of Michael Connolly and his wife Lynn Connolly vs. Robert Edward McLaughlin finds in favor of the plaintiffs and against the defendant in the amount of $1,000,000.00.
In the case of Phyllis R. Stidham, as the administratrix of the estate of Brett Chadwick Stidham vs. Robert Edward McLaughlin, the Court finds in a nonjury fashion for the plaintiff and against the defendant in the amount of $1,250,-000.00. That concludes these proceedings.

N.T. 1/11/91, at 3-4.

Aetna argues that it was unnecessary for the court to decide whether the conduct was willful because plaintiff could recover under the lesser standard of negligence. Moreover, because Aetna prevailed on summary judgment in the subsequent garnishment proceedings, Aetna argues that it had no duty to defend, therefore no duty to indemnify. Hence, Aetna argues that it cannot be bound by the finding of negligence.

We are reluctant to discount or diminish the trial court’s finding of negligence. Aetna’s cavalier approach to the legal proceedings, based on its independent decision not to participate, was risky. Aetna had the opportunity to litigate the issue of McLaughlin’s intent and must, therefore, be bound by the findings that those actions were both negligent and the legal cause of Brett Stidham’s death.

Each of the prongs of collateral estoppel is satisfied with regard to McLaughlin’s negligence. The issue of intent is identical to the issue of intent in the later garnishment proceedings. Also, there was a final judgment on the merits in the liability action. Aetna was in privity to a party, its insured, and had full opportunity to litigate this intent issue. Finally, the finding of negligence was essential to the judgment of damages. Nothing in the record even suggests that the trial court acted perfunctorily or collusively as to enable Phyllis Stidham to prevail. Thus, all the requirements of collateral estoppel have been met on the issue of negligence. Therefore, in this subsequent garnishment proceeding, Aetna is estopped from contending that McLaughlin acted other than negligently.

VII. CONCLUSION

The malice necessary for McLaughlin’s conviction of third degree murder arose from his failure to perceive that his actions might create a substantial and unjustifiable risk of death or serious bodily injury. Such malice does not, however, conclusively establish his conscious awareness or intent to bring about the resulting harm to Brett Stidham. Thus, McLaughlin’s guilty plea to third degree murder, where the criminal proceedings did not establish the extent, if any, of his conscious awareness of his action or the substantial likelihood of the results, cannot conclusively establish a bar to recovery under his homeowner’s policy.

Furthermore, because the guilty plea did not elucidate the insured’s intent or the extent of the insured’s conscious awareness of the substantial certainty of the resulting harm, the subsequent civil claim against the McLaughlin homeowner’s policy continued to be viable. Thus, Aetna owed McLaughlin a duty to defend.,

Finally, McLaughlin’s extreme intoxication as well as the liability action wherein McLaughlin was adjudged negligent, create, at a minimum, a genuine issue of material fact regarding his conscious awareness such that Aetna was not entitled to summary judgment as a matter of law. In resolving the issue of collateral estoppel, we find that all the doctrinal requirements have been met regarding the finding of negligence.

We reverse the order granting summary judgment to Aetna and remand for further proceedings consistent with this opinion.

      . In Commonwealth v. McLaughlin, 393 Pa.Super. 277, 574 A.2d 610 (1990), the Pennsylvania Superior Court affirmed the judgment of sentence.

        . The Elitzky court also resolved the issue, raised by both sides in the instant case, of whether recovery under the homeowner’s policy is against public policy.
      We adopt the Hassinger [supra] court’s definition of intent even though that case did not deal with the interpretation of a contractual provision. Hassinger dealt only with what type of acts should be excluded from insurance coverage as violative of public policy. However, we feel that an "intended” harm clause should be coterminous with the public policy exclusion. A contrary conclusion would lead to the illogical holding that certain acts are not excluded from coverage under an "intended harm” clause but are nonetheless excluded because of public policy. The law is complex enough without the addition of such highly technical and ultimately pointless distinctions.

        Elitzky, supra 358 Pa.Super. at 375, 517 A.2d at 989. Accordingly, we need not entertain a separate discussion on the issue of public policy. If McLaughlin’s actions fall within the exclusionary clause, it would be against public policy to permit recovery. If his actions do not' fall within the exclusionary clause, recovery is permissible and not against public policy.

      . Declaratory Judgment Act, 42 Pa.C.S.A. § 7532.