author: CAVANAUGH, Judge:

text:
    504 A.2d 840
    Ronald J. and Frances GAJKOWSKI v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA and Highway Truck Drivers and Helpers Local Union No. 107, Appellants. Ronald SCHIPSKE v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA and Highway Truck Drivers and Helpers Local Union No. 107, Appellants. William and Jean ABATE v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA and Highway Truck Drivers and Helpers Local Union No. 107, Appellants.
    Superior Court of Pennsylvania.
    Argued April 3, 1985.
    Filed Jan. 28, 1986.

      Thomas W. Jennings, Philadelphia, for appellants.
    Gregory T. Magarity, Philadelphia, for appellees.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   CAVANAUGH, Judge:

The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (IBT or union) and Highway Truck Drivers and Helpers Local Union No. 107 (Local 107 or union) appeal from the denial of post-verdict motions which sought a new trial or judgment N.O.V. The motions were filed following a bifurcated liability and damage trial at which the jury first found in favor of all appellees and, thereafter, awarded damages for personal injuries and loss of consortium to the three injured claimants, Francis Gajkowski, Ronald Schipske and William Abate, and the spouses of Abate and Gajkowski. Numerous issues are raised on appeal. Since we decide that there was insufficient evidence to support the verdicts against either appellant, we reverse and enter judgment N.O.V.

This case arises out of a tragic incident which occurred, on January 25, 1980 at the site of the Minnesota Mining and Manufacturing Co. (3M) facility in Bristol Township, Bucks County, Pennsylvania. On that date, in the evening hours, the appellees received bullet wounds from a .22 caliber revolver which was apparently fired by one Robert Balling-er. Ballinger, Gajkowski and Schipske were all employees of 3M and members of Local 107 who were involved in a strike action against 3M. Abate was a security guard in the active employment of 3M and was not a member of Local 107. Suit was brought against the appellant unions on the basis that the shootings were the result of the negligence of the unions in failing to control the picket line. Appellants defended on the grounds, inter alia, that the right to recovery was delimited by provisions of the Pennsylvania Labor Anti-Injunction Act, 43 P.S. § 206h; that there is no duty in the unions to control the picket line so as to form the basis for appellees’ action in tort; and that the shooting was unforeseeable and beyond the ambit of the unions’ responsibility. In order to grasp the thrust of appellees’ claim at trial it is first necessary to review the evidence and to examine the competing arguments which arose.

Local 107 is a union which represents some 400 to 500 employees of 3M in twelve departments at 3M’s Bristol, Pennsylvania plant. Local 107 and its parent affiliate IBT are both unincorporated associations. On November 18, 1979 the members of Local 107 at 3M voted to reject a “final” company offer and to commence a lawful economic strike on the next day. This was just short of ten weeks before the shooting episode. The union commenced picketing the next day, and continued doing so on a daily basis around the clock. It is clear from the evidence that during the course of this extended strike, the picket line operation was essentially incident free. Numerous witnesses attested to the fact that the picketing was “peaceful” and even “friendly” in its operation. During this period, 3M did not seek any injunctive relief to limit the number, location or manner of picketing. There was, however, evidence that picketers had engaged in drinking alcoholic beverages while on picket duty and that this was against union policy and instructions. Nevertheless, there was no evidence that the drinking led to any serious incidents, at least until the night of the shooting.

On January 25, 1980, Officer Stephen Whiteman of the Bristol Township Police Department was on duty and as was his practice, he routinely checked the picket site. There had been some reports of bottle throwing and other misconduct during the evening but when he checked the scene at 8:30 P.M. he found no problems to be present. It was, however, only minutes later that he was called back and discovered that Schipske and Gajkowski had been shot. He found them lying in a driveway. Abate had also been shot and was found on the floor in a guardhouse. While emergency aid was being given to the victims, Whiteman began questioning the strikers and had the strike captain, William Miesznek call the workers over to him in pairs. The workers, for the most part, gave their names only and did not describe what had happened. Finally, Whiteman went to the group of strikers when individuals had ceased voluntarily appearing and said that they should come to be interviewed or face being taken to the station house. When he got to Robert Ballinger, Ballinger said “I did it” and “I’ll go for it.” At that time, he reported this to James Swope, who was the detective on the scene. Swope testified that when he interviewed Ballinger, Ballinger told him that he was trying to shoot out the lights at the guardhouse and apparently hit the three individuals.

Earlier in the day, strikers Ballinger, William Crossan and Robert Kendig had been together for an extended luncheon period at a tavern where they had been drinking beer. It was their intention to return to the 3M plant to distribute leaflets. The mood of the strikers was apparently heightened by the fact that a few days later there was to be a motorcade demonstration in Philadelphia to support the strikers’ cause. Later, Kendig had stopped at his residence and when he returned to the scene he had with him a .22 caliber revolver. William Crossan was aware that Kendig had the firearm in his possession. After returning to the scene, leaflets were distributed, activities escalated, and beer drinking among many of the strikers continued. A number of union members threw bottles at the guardhouse during the time before the shooting, but soon this activity subsided. It is clear that Kendig displayed his revolver and at some stage he was attempting to shoot parking lot lights out and, in particular, was seeking to strike a light and camera above the guardhouse. During the bottle throwing, a hurled bottle struck a flag and came down on the head of Ballinger who received a cut on the head, .but sought no medical attention. At one time Crossan told Kendig to put the gun away “in no uncertain terms.”

There was evidence that the weapon was handed from Kendig to Ballinger and while Ballinger was in possession of it the triple shooting occurred (Ballinger, called in the plaintiff’s case, however, stated that he did not do the shooting.)

The theory upon which appellees ground their claim is that the unions negligently maintained the picket line; that they encouraged, condoned, acquiesced and participated through their agents in the violent behavior of the striking employees which led to the shooting. In furtherance of their theory, much of the extensive testimony elicited by plaintiffs at the liability phase of the bifurcated trial related to the relationship between the unions and various members. The trial court denied the unions’ motions for a non-suit and a directed verdict and submitted the case to the jury.

THE APPLICABILITY OF THE PENNSYLVANIA LABOR ANTI-INJUNCTION ACT

We first address the unions’ defense that the sole applicable standard of proof to be applied in determining a labor organization’s liability for violence occurring during the course of a labor dispute is that which is set forth in § 8 of the Pennsylvania Labor Anti-Injunction Act.

§ 206h. Liability of officers and members of labor organizations
No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute as herein defined, shall be held responsible or liable in any civil action at law or suit in equity or in any criminal prosecution for the unlawful acts of individual officers, members or agents, except upon proof beyond a reasonable doubt in criminal cases, and by the weight of evidence in other cases, and without the aid of any presumptions of law or fact, both of — (a) the doing of such acts by persons who are officers, members or agents of any such association or organization; and (b) actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof by such association or organization. 1937, June 2, P.L. 1198, § 8.

Act of June 2, 1937, P.L. 1198 § 8, 43 P.S. § 206h.

Thus, the argument is that the above Act shields the unions from the plaintiffs’ claim unless it can be shown that the offending acts were done by officers, members or agents of the union and that there was “actual participation in or actual authorization of” or “ratification of” the acts by the union. Our Supreme Court has recognized that the Pennsylvania Labor Anti-Injunction Act was patterned after § 6 of the Norris-LaGuardia Act, 47 Stat. 71, 29 U.S.C. § 106, and adopted the language of the United States Supreme Court in describing the purposes of § 206h.

“... whether § 6 should be called a rule of evidence or one that changes the substantive law of agency ... its purpose and effect was to relieve organizations ... and members of those organizations from liability for damages or imputation of guilt for lawless acts done in labor disputes by some individual officers or members of the organization, without clear proof that the organization or member charged with responsibility for the offense actually participated, gave prior authorization, or ratified such acts after actual knowledge of their perpetration.”

Philadelphia M.T Ass’n v. International Long. Ass’n., 453 Pa. 43, 52, 308 A.2d 98, 103 (1973), quoting from Brotherhood of Carpenters v. United States, 330 U.S. 395, 403, 67 S.Ct. 775, 780, 91 L.Ed. 973, 982-83 (1947). The United States Supreme Court later, in discussing § 6, stated:

... the simple concern of Congress was that unions had been found liable for violence and other illegal acts occurring in labor disputes which they had never authorized or ratified and for which they should not be held responsible. Congress discerned a tendency in courts to blame unions for everything occurring during a strike.

Ramsey v. United Mine Workers, 401 U.S. 302, 91 S.Ct. 658, 28 L.Ed.2d 64 (1971). The legislative history is in accord. S.Rep. No. 163, 72 No. Cong. 1st Sess. 19 (1932).

To hold that an officer or member of a labor organization, or the organization itself, should be liable for damages for unlawful acts committed while a strike is on, without clear, actual proof of authorization, participation in, or ratification of such unlawful acts, would go far towards the destruction of organized labor.

The § 6 standard has been held to reach or extend to an action in tort to recover damages. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) and has been applied to tort action based on state law in C & K Coal Co. v. United Mine Workers, 704 F.2d 690 (3rd Cir.1983). See also C & K Coal Co. v. United Mine Workers, 537 F.Supp. 480 (W.D.Pa.1982) [same case]. Curreri v. Teamsters Local 251, 722 F.2d 6 (1st Cir.1983); Kerry Coal Company v. United Mine Workers, 637 F.2d 957 (3rd Cir.1981); Ritchie v. United Mine Workers, 410 F.2d 827 (6th Cir.1969); Federal Prescription Service, Inc. v. Amalgamated Meatcutters and Butcher Workmen, 527 F.2d 269 (8th Cir.1975); Kayser-Roth Corp. v. Textile Workers Union, 479 F.2d 524 (6th Cir.1973), cert. denied, 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973). See also Philadelphia Marine Trade Association v. International Longshoremen’s Association, 453 Pa. 43, 308 A.2d 98 (1973); Wortex Mills v. Textile Workers Union of America, 380 Pa. 3, 109 A.2d 815 (1954); Fife v. Great Atlantic and Pacific Tea Company, 356 Pa. 265, 52 A.2d 24 (1947). Compare Schnabel Associates v. Bldg. and Construction Trades, 338 Pa.Super. 376, 487 A.2d 1327 (1985) (Pennsylvania Labor Anti-Injunction Act does not apply to civil contempt sanctions by reason of “violent exceptions.” 43 Pa.C.S.A. § 206d(d)).

Although the cases which apply the labor act’s more stringent standards of proof are indeed claims for damages for economic harm while the present action is for personal injury, we see no reason for distinction between the two. Given the intent to shield a union and its members from liability for acts not participated in nor authorized or ratified by them, we see no valid reason for distinguishing between economic and personal loss by reason of “individual” acts of union members. For this reason we disagree with the holding of the Washington Supreme Court in Buchanan v. Int’l. Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, et al., 94 Wash.2d 508, 617 P.2d 1004.

Appellees next argue that if the § 206h standard applies generally to the present matter, it is in fact not applicable because of the provision of § 206d(d) which provides that the Act shall not apply in any case:

(d) Where in the course of a labor dispute as herein defined, an employe, or employes acting in concert, or a labor organization, or the members, officers, agents, or representatives of a labor organization or anyone acting for such organization, seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining. 1937, June 2, P.L. 1198, § 4; 1939, June 9, P.L. 302, § 1.

Here, it is argued that since there was damage to property in the course of the labor dispute, the present matter is exempted from the Act’s strictures. We note that the only ascertained property damage was a broken window. We do not believe that the above provision, which was a 1939 amendment to the Pennsylvania Anti-Injunction Act, should be so broadly read, particularly to render inapplicable the liability restrictions grounded on strong public policy, in a case involving only incidental and insubstantial damage to property. A reading of the original 1937 Act and its 1939 amendment demonstrates that the Act was amended to restore to the courts the power to grant injunctive relief in certain labor dispute situations where there is seizure, damage, or destruction of property of the employer. The amendment properly reaffirmed the court’s power to protect property rights from otherwise unrestrained appropriation or destruction. Pennsylvania cases are consonant with respect to this interpretation of the 1939 amendment. Schnabel Associates v. Building and Construction Trades, supra, was a case in which the lower court, after the issuance of injunctive relief, found the union in contempt. On appeal, this court noted that the Anti-Injunction Act did not apply because of the extensive property damage and violent activity, and relief was granted pursuant to the court’s power to restrain violence, mass picketing and overt threats of violence in order to protect public order and safety and prevent damage. See also Carnegie-Illinois Steel Corp. v. United Steel Workers of America, 353 Pa. 420, 45 A.2d 857 (1946); Westinghouse Electric Corp. v. United Electrical Radio & Machine Workers of America, 353 Pa. 446, 46 A.2d 16 (1946); DeWilde v. Scranton Building Trades and Construction Council, 343 Pa. 224, 22 A.2d 897 (1941).

We conclude that the purpose of the 1939 amendment was simply to restore equity jurisdiction to the courts to restrain unlawful conduct in a labor dispute and does not apply to the present personal injury tort action.

Further support for the conclusion that the § 206d(d) “damage” provision does not extend to the inconsequential window damage in this case is found in a recent panel case of this court. In Frankel-Warwick, Ltd. v. Local 274, 334 Pa.Super. 47, 482 A.2d 1073 (1984), where the court found that where picketing activities made travel on sidewalks and egress to the petitioner's hotel “difficult” it was not sufficient to amount to a seizure. Similarly, the trivial damage incurred herein is not sufficient to invoke the violence exception. More recently, in Solvent Machinery and Filters Systems, Inc. v. Teamsters Local Union 115, 343 Pa.Super. 505, 495 A.2d 579 (1985) a panel majority of this court reversed the issuance of an injunction, where there was some property damage and picketing which resulted, at the least, in interference with the conduct of business. Our court observed that there was no evidence which linked the property damage to an intention of compelling the employer to perform specific acts as required by § 206d(d).

Finally, our court has recently spoken on the issue of the availability of a cause of action in negligence against labor unions in a matter arising out of a labor dispute. In LaZar v. RUR Industries, Inc. v. United Steel Workers of Amer ica, 337 Pa.Super. 445, 487 A.2d 29 (1985) (Spaeth, P.J., concurring in result) a picketing union member was injured in a melee while on picket duty. He sued the employer in tort for' damages for negligence in failing to control off-duty employees. The employer sought to join the union as an additional defendant on the basis that its negligence caused the injury. Our court agreed with the trial court’s dismissal of the complaint against the union. Citing provisions of the Labor Anti-Injunction Act, the court concluded that “[b]efore a plaintiff may recover from a union in a strike-related complaint, he must be able to show, by the weight of the evidence, that the acts complained of were ordered, authorized or ratified by the union.” 337 Pa.Superior Ct. 445 at 449-50, 487 A.2d 29 at 31.

The trial court, in the present case, concluded that the restrictive standards of § 206h did not apply and permitted the jury to find the appellees liable on common law agency principles under the duty to control the picket line theory. Nevertheless, at trial the court undertook to charge the jury in accordance with the standards set forth in § 206h and in answer to special interrogatories the jury found against the union defendants since the union “actually participated in, actually authorized or ratified after actual knowledge thereof, the unlawful acts which caused the injuries.” The trial court thus submitted the case to the jury on two theories: (1) § 206h; and, (2) common law agency principles as they relate to the duty to maintain a picket line. The theories were submitted in four separate interrogatories and the jury found against both unions on both theories. The second theory will be discussed infra. The charge of the court on the § 206h standard with the exception of the recitation of the jury interrogatories, was contained in a single paragraph and simply stated that there must be proof that the “acts charged were actually authorized, actually participated in by, or ratified after actual knowledge thereof by [the unions]”. There were no instructions as to the meaning of these concepts as they might apply to the facts of this case. Nevertheless, we conclude that there is not sufficient evidence in the record of actual participation, actual authorization, or ratification to warrant submission of this issue to the jury and conclude that the trial court erred in doing so. In Phila. M.T. Ass’n. v. ILA, supra, our supreme court rejected the argument that a union could be held responsible for the acts of its members despite the fact that the lower court found the efforts to prevent the violation by various officers was “half hearted and not taken in good faith and inept” and in violation of the order to “take all reasonable steps which may be necessary [to carry out the order]”. The supreme court concluded:

However, we believe that much more is required to hold a union or its officers responsible under § 206h of the Pennsylvania Labor Anti-Injunction Act.

308 A.2d 98 at 103.

The court proceeded to cite the following from the United States Supreme Court opinion in Brotherhood of Carpenters v. United States, 330 U.S. 395, 403, 67 S.Ct. 775, 780, 91 L.Ed. 973, 982-93 (1947):

"... whether § 6 should be called a rule of evidence or one that changes the substantive law of agency ... its purpose and effect was to relieve organizations ... and members of those organizations from liability for damages or imputation of guilt for lawless acts done in labor disputes by some individual officers or members of the organization, without clear proof that the organization or member charged with responsibility for the offense actually participated, gave prior authorization, or ratified such acts after actual knowledge of their perpetration.”

It must be remembered that the unions are unincorporated associations, with large numbers of trustees, officers, employees and members, and that the purpose of § 206h is to protect the union and its membership from liability for unlawful and unauthorized acts of persons associated with the union. The tortious shooting in this case was an act of irrational behavior by a lone intoxicated member of the union, perpetrated without reason on the person of two fellow union members and a fellow employee. There is not a suggestion in the record that the unions and their membership authorized, participated in or ratified this act of wanton misconduct. Imposing liability on the union for the unauthorized lawlessness of its more improvident members would penalize the union lawfully engaged in using legitimate economic means to resolve labor-management conflicts. Scott v. Moore, 640 F.2d 708 (5th Cir.1981). The fact that the record may contain evidence of acts of violence and unlawful conduct by persons who were officers and members of the union is insufficient without more to fix responsibility on the union. Fife v. Great A & P Tea Co., 356 Pa. 265, 52 A.2d 24 (1947), cert. denied, 332 U.S. 778, 68 S.Ct. 42, 92 L.Ed.2d 362 (1947), reh’g. denied, 332 U.S. 821, 68 S.Ct. 143, 92 L.Ed. 397 (1947).

We conclude that the restrictive standards of 206h apply to this matter, and that there was insufficient evidence of the actual participation, actual authorization, or ratification of the acts upon which appellees’ claim is based to support a finding of union liability.

THE DUTY TO MAINTAIN AND CONTROL A PICKET LINE AND COMMON LAW AGENCY

In addition to submitting the case to the jury on the basis of 206h liability, the trial court, by way of separate interrogatories, submitted the matter under a charge of duty to maintain a picket line and common law agency principles. The jury, in its verdict, also found the unions responsible under this theory. Since we have concluded that the restrictive standard of 206h applies and that the evidence of vicarious responsibility was insufficient as a matter of law, it follows that the court erred in submitting the case to the jury on the basis of common law agency principles since 206h permits recovery only under the restrictive conditions set forth in that provision. As a matter of judicial economy, however, we. will discuss the matter under Pennsylvania’s common law agency principles as we conclude that even if they were to apply, the evidence was insufficient as a matter of law and that judgment N.O.V. should be entered on this basis.

In order to assess the legal propriety of the appellees’ theory of union responsibility, it is again necessary to focus on the parties’ respective contentions and the trial itself. Initially, it is important to observe that throughout the course of this litigation, including the trial, the charge to the jury and the appellate briefs, the terminology “principal and agent” is used almost exclusively. It is instructive, at the outset, to recognize that not every relationship of principal and agent creates vicarious responsibility in the principal for acts of the agent. The distinction was discussed by our supreme court in Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970).

Agency is the relationship which results from (1) the manifestation of consent of one person to another that (2) the other shall act on his behalf and subject to his control, and (3) consent by the other so to act: Chalupiak v. Stahlman, 368 Pa. 83, 81 A.2d 577 (1951); Restatement (Second), Agency § 1(1) (1958). Such agency results only if there is an agreement for the creation of a fiduciary relationship with control by the beneficiary: Rosenberg v. Cohen, 370 Pa. 507, 88 A.2d 707 (1952); Restatement (Second), Agency § 1, comments a and b (1958). “The right of control by the principal may be exercised by prescribing what the agent shall or shall not do before the agent acts, or at the time when he acts, or at both times * * *. Further, the principal has power to revoke the agent’s authority, although this would constitute a breach of his contract with him * * *. The control of the principal does not, however, include control at every moment; its exercise may be very attenuated and, as where the principal is physically absent, may be ineffective:” Restatement (Second), Agency § 14, comment a. Since an agent who is not a servant is not subject to any right of control by his principal over the details of his physical conduct, the responsibility rests upon the agent alone, and the principal is not liable, for harm caused by his unauthorized negligent physical conduct: Commonwealth v. Minds Coal Mining Corp., 360 Pa. 7, 60 A.2d 14 (1948); Restatement (Second), Agency § 250 (1958). Thus it has long been said to be the general rule that there is no vicarious liability upon the principal in such case: Prosser, The Law of Torts § 70 (3d ed. 1964).
“A master is a species of principal, and a servant is a species of agent:” Restatement (Second), Agency § 2, comment a. “A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master:” Restatement (Second), Agency § 2(1) and (2) (Emphasis added.). Thus a master not only controls the results of the work but also may direct the manner in which such work shall be done, and a servant, in rendering the agreed services, remains entirely under the control and direction of the master: Joseph v. United Workers Assn., 343 Pa. 636, 23 A.2d 470 (1942); McColligan v. Penna. R.R. Co., supra. “Those rendering service but retaining control over the manner of doing it are not servants. They may be agents, agreeing only to use care and skill to accomplish a result and subject to the fiduciary duties of loyalty and obedience to the wishes of the principal * * *:” Commonwealth v. Minds Coal Mining Corp., supra, 60 A.2d at 17. Because a master has the right to exercise control over the physical activities of the servant within the time of service, he is vicariously liable for the servant’s negligent acts committed within the scope of his employment: Restatement (Second), Agency § 219 (1958); Prosser, The Law of Torts § 69 (3d ed. 1964).

440 Pa. at 413-15, 269 A.2d at 481.

See also Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073 (1981); Turley v. Kotter, 263 Pa.Super. 523, 398 A.2d 699 (1979).

Similarly, although the charge of the court makes no mention of the concept of apparent authority, the briefs and opinion of the court en banc refer to the evidence as forming a basis for a finding of union responsibility on the basis of, inter alia, the apparent authority of Crossan and Kendig to act on behalf of Local 107. Appellees, for example, argue that Crossan was an agent of Local 107 and possessed actual, implied and apparent authority with regard to the picket line and rely upon the lower court’s citation of Reifsnyder v. Dougherty, 301 Pa. 328, 152 A. 98 (1930) and Revere Press, Inc. v. Blumberg, 431 Pa. 370, 246 A.2d 407 (1968) for the principle that one who leads persons with whom his agent deals to believe that the agent has power to bind his principal may be liable on the theory of apparent authority. Thus, it is argued that Crossan had at least apparent authority over the conduct of the picket line and liability of the union ensues. While the doctrine of apparent authority is undoubtedly recognized in Pennsylvania, we fail to see its applicability to the present case. Apparent authority is grounded on the theory that the principal creates circumstances which cause one dealing with the agent to reasonably believe that the agent has the authority and relies on this belief. Reifsnyder, supra, and Revere Press, supra, cite the principle in settings dealing with contract liability because of reliance on the agent’s authority. See Juarbe v. City of Philadelphia, 288 Pa.Super. at 343, 431 A.2d at 1079-80. (“The two doctrines [apparent authority and agency by estoppel] are customarily relevant in the context of business transactions____”). Here, the claim is one in tort for the negligence which resulted in the shooting. We fail to see how the appellees can be said in any way to have relied upon the apparent authority of Crossan (or anyone else) to avoid being the victims of the shooting incident.

Finally, it is not clear from the record as to precisely what agent or servant of the union is claimed to have been negligent and in what manner. In the court’s charge in chief, there is no mention by name of any “agent” of the union, although there is a reference to the fact that plaintiff contended that “certain union stewards and members of the negotiating committee were in fact agents of Local 107----” Nevertheless, the court went on to charge the jury to determine “the nature of the relationship which existed between certain witnesses and [the unions].” The general nature of the charge was further demonstrated when the court stated:

Consider under all the evidence of this case whether any agency relationships existed. Consider which witnesses were officers or employees of either Local 107 or the IBT. Consider what occurred during the course of the strike, and most importantly on January 25th, 1980.

That the jury may have been confused by the dual agency charge (i.e., 206h agency and common law agency) which were cast in only the most general terms is demonstrated by the fact that after twenty-five minutes of deliberation they returned with a question asking for a definition of agency. Again, less than two hours later the jury returned with another question relating to the agency charge. The jury, at this time, was refused their request for a dictionary. Thirty-five minutes later the jury asked for written instructions as to agency. At this time, the court again charged on agency making specific reference to Mr. Cimino, the president of Local 107, Mr. Smalley, the business agent, and Crossan and Kendig, but again left the issue of agency to the jury.

I will leave it to you to decide who, if any people would fall into that category, and Between Local 107 and IBT, a principal, that is in this case Local 107 with respect to his agent, if you find it has agents or the IBT with respect to its agents, if you find it has any agents. That’s the question for you.

Thereafter, the jury resumed deliberation and returned the verdict.

We have discussed these matters, not in the context of error in the court’s charge, for indeed it does not appear that there were any exceptions to the court’s charge, but rather to determine the nature of the cause of action asserted by appellees and submitted to the jury by the court for, while there were no exceptions to the charge, appellants have consistently argued that the evidence was insufficient to permit a recovery against the unions.

Thus, our present standard is to assess the asserted cause of action as formulated and fashioned by the court in its charge; to examine its cognizability under principles of Pennsylvania law; and determine the sufficiency of evidence. We do so under the following standard:

The standard of review for an order denying a motion for a judgment N.O.V. is well defined. It is the same standard used by the trial judge in deciding whether to grant the motion. ‘Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary,’ we must reverse such an order denying the motion ‘when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case.’ Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892-93 (1984). It is not within this court’s province to weigh the evidence or to render judgments as to credibility. See City of Bethlehem v. Gawlik, 30 Pa. Commonwealth Ct. 390, 374 A.2d 540, 542 (1977); P.L.E. Judgment § 146.

Ingrassia Construction Co. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478, 480 (1984).

The duty which is alleged to have been breached is the duty to monitor and control a picket line. We are furnished no cases directly dealing with this concept of union responsibility. Furthermore, the court provided no instruction as to the nature of a union’s accountability with respect to setting up and managing a picket line, the degree of control, monitoring or surveillance which reasonably must be maintained over the picket line, and the standards applicable thereto; or the conditions under which the union may reasonably be required to take action to avoid the accidents or injury as a result of misconduct on the picket line. The jury was simply told to determine if the unions had a duty to monitor and control the picket line and thereafter to decide whether they were negligent in carrying out that duty.

Assuming, arguendo, that a duty to maintain a picket line is a cognizable duty of a union under Pennsylvania law, we believe it is error for the court to leave to the jury to decide if such a duty exists (and also, presumably, the nature and extent of the duty). The existence of a duty and its extent is not for the jury to determine. Cf. O’Toole v. Borough of Braddock, 397 Pa. 562, 155 A.2d 848 (1959) (court erroneously charged jury to determine issue of law); Berry v. Friday, 324 Pa.Super. 499, 472 A.2d 191 (1984) (a trial judge is charged with the responsibility of determining all pertinent questions of law). Stated otherwise, we conclude that it was error for the court to submit to the jury a cause of action for failure to monitor and control a picket line wherein the existence of the duty to maintain a picket line is left for jury determination.

We further find that, under the facts of this case, there was no breach of duty by the unions which could form the basis for recovery of damages from the unions. Initially, when we view the conduct of union member Ballinger, we think it is clear beyond peradventure that his act in shooting his fellow employees, including two fellow strikers, was beyond any reasonable scope of his authority.

The law is clear that a servant who uses excessive force or acts in an outrageous manner steps outside the scope of his authority and in such circumstances, the master is not vicariously liable for the servant’s act. Lunn v. Yellow Cab Co., 403 Pa. 231, 169 A.2d 103 (1961) (cab driver stabbed prospective passenger in altercation); Potter Title and Trust Co. v. Knox, 381 Pa. 202, 113 A.2d 549 (1955) (cab driver shot at striking workers); Howard v. Zaney Bar, 369 Pa. 155, 85 A.2d 401 (1952) (owner of bar not liable when bartender shot patron who had made a pass at female customer); Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 410 A.2d 1270 (1979) (off duty policeman shot neighbor while attempting “arrest”); Straiton v. Rosinsky, 183 Pa. Super. 545, 133 A.2d 257 (1957) (movie usher struck patron with flashlight — under facts, scope of employment for jury, but issue may be one of law).

Appellant’s theory of union responsibility seeks to avoid the consequences of this principle which would be a barrier to union responsibility by focusing on the duty to maintain the picket line. In this regard, although it was not apparent from the charge, a reading of the briefs and the record, discloses that the thrust of appellees’ argument centered on the role which William Crossan played during the strike action and, specifically, at the time of the incident forming the basis of this suit. The appellees contend that Crossan represented the local in a supervisory capacity with respect to the picketing. The union, while admitting that Crossan had acted as chief steward for the union at the 3M plant, argued that his duties in this capacity expired with the union contract, and that he had no official supervisory role with respect to the conduct of the picket line. We have already disagreed with the court’s discussion of apparent authority as having no applicability to the present claim of tort liability. Nevertheless, insofar as the role of Crossan acting on behalf of the union in a managerial capacity with respect to the picketing activities, the record supports a conclusion that he was vested with at least some authority to act in a supervisory capacity with respect to the operation of the picket line. Merely concluding that Crossan had some authority over the picket line, however, does not fix responsibility on the union for, inevitably, contrary to appellees’ argument, one must determine the scope of the authority, and whether the shooting was so contrary to the likely incidents of picketing activities as to be unforeseeable and beyond the scope of reasonable control of picketing. Accordingly, one must determine not only the fact of agency, but also the dimensions thereof. Cf Mellon Nat’l. Bank v. Esler, 357 Pa. 525, 55 A.2d 327 (1947); Lewis v. Matias, 300 Pa. 238, 150 A. 636 (1930); Beal & Simons v. Adams Express Co., 13 Pa.Super. 143 (1900).

Essentially, the duty which appellees seek to vest in Crossan, (absolute responsibility to police the picket line) is not one supported by the evidence. The present case is unlike cases where the owner of a bar may be responsible for the maintenance and policing of employees and patrons on the premises. See Ash v. 627 Bar, Inc., 197 Pa.Super. 39, 176 A.2d 137 (1961); Poulos v. Brady, 167 Pa.Super. 150, 74 A.2d 694 (1950) or, where the agent is employed in a capacity where the tortious act is directly related to the performance of the agent’s duties. See Orr v. William J. Burns International Detective Agency, 337 Pa. 587, 12 A.2d 25 (1940) (shooting by guard hired to protect persons and property); Sebastianelli v. Cleland Simpson, 152 Pa. Super. 203, 31 A.2d 570 (1943) (attack on suspected shoplifters by detective in the employment of store). But even in these situations, not every act is attributable to the principal. Mac Phail v. Pinkerton’s National Detective Agency, 134 Pa.Super. 351, 3 A.2d 968 (auto repossessor held to be outside scope of employment in personal assault); Dalsey v. Czeiner, 154 Pa.Super. 194, 35 A.2d 523 (1944) (bartender-in-charge struck patron off premises after closing). See also Teal v. Kings Farms Co., 285 F.2d 62 (3d Cir.1960) (employer not liable for assault on fellow employee unless master knew or should have known of the necessity and opportunity for exercising control); Restatement of Torts 2nd § 317.

Assuming, then, that Crossan had some duty to maintain or control the picket line, this fact does not make him or the union the insurer of the conduct of the picketers, nor does it make the acts of Crossan the act of the union for he is at best acting only as an agent or servant of the union. Simply removing the responsibility one step from the acting tortfeasor (Ballinger) does not avoid the issue: was not the shooting, either viewed from the standpoint of Ballinger as actor or Crossan as agent with some supervisory responsibility, so far outside the scope of the agent’s authority as to render the master (union) not responsible. Our supreme court here opined:

An act may be within the scope of the employment although consciously criminal or tortious. On the other hand, the fact that the servant intends to commit a crime, especially if the crime is of some magnitude, is to be considered in determining whether or not the act is within the employment, since the master is not responsible for acts which are clearly inappropriate to or unforeseeable to the accomplishment of the authorized result. As in other cases, it is a matter of degree, the question being whether or not the conduct is so unlike that authorized that it is substantially a different thing. Sum.Pa.Jur. Agency, Section 238.

First National Bank of Altoona v. Turchetta, 407 Pa. 511, 181 A.2d 285, 287-88 (1962) (emphasis in original).

Appellees’ theory is that Local 107 was negligent in that this shooting was a natural and foreseeable consequence of its negligent maintenance of the picket line and that the union created an atmosphere ripe for violence and injury. As support for the theory that the union anticipated violence on the picket line, appellees cite the fact that the union business agent gave a speech to the membership at the time the strike vote was taken in which he stated there was to be no violence or “carrying on” on the picket line. This laudable caution is cited by appellees as evidence that violence was anticipated. The argument is disingenuous. Picketing is, of course, perfectly legal. It is, by its nature, confrontational and carries risks that untoward incidents may occur. To suggest that exhortations against violence may be used as the basis of respondeat superior responsibility for a subsequent shooting defies experience and logic. Other instances of misconduct cited by appellees are equally unpersuasive as evidence that the shooting or Crossan’s alleged laxity were foreseeable. For example, appellees cite Smalley’s awareness of isolated instances such as nails placed in the 3M parking lot, a single occasion when a rock was thrown through a 3M window, and some evidence that, despite admonitions to the contrary, there was some drinking during the picketing activities. It is more than a quantum leap to conclude that from such isolated instances during a ten week strike, the unions could be held to foresee that a member would become intoxicated, have possession of a deadly weapon and fire upon and strike three persons without reason; or, given appellees’ theory as to the duty to control the picket line, that an employee with some supervisory capacity would not intervene to prevent the shooting incident.

Similarly, appellees extract several remarks from the labor-management rhetoric which accompanied the strike action to support their claim of union responsibility. Thus, on one occasion, the local president, Cimino, stated to the 3M negotiator following a lack of progress “... it is going to get hot now” and on another occasion Smalley stated “it’s calm now but wait.” Given the hyperbole and posturing that inevitably accompany labor-management negotiations one would have to engage in tortured reasoning to conclude that these isolated remarks evidence awareness of a risk that there would be such a bizarre dereliction by a drunken member, which, even giving credence to the most distorted reasoning, could in any circumstances be interpreted to further the union’s cause in any way.

We assume, without deciding, that Pennsylvania would recognize a duty in a union to control a picket line authorized by it. We conclude, however, that there was insufficient evidence to warrant jury determination that the shooting incident, or the failure to monitor or control the picket line, were, on application of agency principles, attributable to the union. We reach this conclusion as to both Local 107 and IBT, and we do so regardless of whether Ballinger, Crossan, Kendig, Smalley, Cimino or any other individual be viewed as the agent of the unincorporated associations (unions) for the purposes of vicarious liability.

Since we have concluded that judgment N.O.V. should be entered in favor of both appellant unions, we do not reach the other issues raised by appellants on appeal.

Judgment N.O.V. entered in favor of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Highway Truck Drivers and Helpers Local Union No. 107.

      . The total damage awards exceeded 1.3 million dollars.

      . The Buchanan economic harm — physical harm distinction has been criticized. We agree with the following statement found in Note, Labor Unions Vicarious Liability for Torts Committed by Members, 57 Washington Law Review 193, 205-06 (1981).
      This conclusion also rebuts the argument in Justice Rosellini’s concurrence that the Washington court was not bound by either United Brotherhood or Gibbs because those cases involved economic harms while Buchanan involved physical harm.68 This is solely a factual distinction, one that has been given no further support in any cases or statutes addressing a union's vicarious liability. Justice Rosellini assumed, without citing any authority, that the United States Supreme Court would decide a future tort case, involving physical harm differently than it decided Gibbs, a tort case involving an economic harm.69 In fact, an indication to the contrary exists in United Brotherhood where the Court stated that "[t]he limitations of [section 6] are upon all courts of the United States in all matters growing out of labor disputes, covered by the Act, which may come before them.”70 This willingness of the United States Supreme Court to broadly apply the union-liability standard is entirely consistent with the congressional decision to include among labor disputes "any controversy concerning terms or conditions of employment.”71 (Footnotes omitted)

      . To the extent that appellant argues that there was some slight interference with car access to 3M’s plant, Frankel-Warwick is dispositive of any claim that this amounted to a "seizure.”

      . The "ratification” theory was charged to the jury despite the fact that the court had earlier excluded it as a permissible basis for recovery.

      . In the following part of this opinion we find that the evidence does not support a finding of common law agency, a less stringent standard for fixing vicarious liability than that required by § 206h. That discussion, therefore, applies to our present disposition. In addition, a reading of the applicable cases makes it clear that the evidence here falls far short of the "clear proof” of actual authorization, participation or ratification necessary to render the union liable. United Steelworkers v. Lorain, 616 F.2d 919 (6th Cir.1980) cert. denied 451 U.S. 983, 101 S.Ct. 2313, 68 L.Ed.2d 839 (1981); Kayser-Roth Corp. v. Textile Workers of America, supra; Curreri v. International Brotherhood of Teamsters, supra; Kerry Coal v. United Mine Workers, supra; C and K Coal Co. v. United Mine Workers, supra; James R. Snyder Co., Inc. v. Edward Rose and Sons, Inc., 546 F.2d 206 (6th Cir.1976); Dow Chemical Co. v. International Union of Electrical Radio and Machine Workers, 480 F.2d 433 (5th Cir.1973); cert denied 415 U.S. 932, 94 S.Ct. 1444, 39 L.Ed.2d 490 (1974).

      . The opening and closing addresses to the jury and counsel’s arguments on legal points are not part of the record.

      . Evidence of Crossan’s supervisory role as shown by actual or implied authority, included the fact that he helped write up the picketing assignments when the strike was initiated; he came to the picket line to make sure who was there for pay purposes; he received reports from the picketers and passed them on to the business agent; and distributed strike funds and leaflets which bore his name as a member of the negotiating committee.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    504 A.2d 854
    COMMONWEALTH of Pennsylvania v. Lynn STEHLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1985.
    Filed Jan. 31, 1986.

      Lawrence Kalikow and Francis J. Dermody, Assistant Public Defenders, Harrisburg, for appellant.
    Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before WICKERSHAM, ROWLEY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Appellant Lynn Stehley was convicted of involuntary manslaughter after a jury trial in which he had been charged with murder and voluntary manslaughter. In his appeal, appellant presents six issues for appellate review: (1) whether the lower court erred in granting the Commonwealth’s request for discovery; (2) whether the trial court properly instructed the jury; (3) the sufficiency of the evidence to support a conviction of involuntary manslaughter; (4) the admission of evidence relating to appellant’s reputation; (5) the propriety of allowing the District Attorney to refile murder charges before a second magistrate; and (6) whether the court erred in sentencing the appellant to two concurrent terms, under two different docket numbers, for one conviction. Because of the uniqueness of several issues and the procedural aspects of this case, we find it necessary to deal with the issues seriatim.

The incident underlying appellant’s trial and conviction took place at the German-American Friendship Club in Harrisburg, Pennsylvania. In the early morning hours of October 1, 1983, this was the site of an indoor picnic at which appellant was present as a guest and the victim, James Ferguson, was a bartender. Appellant who had been drinking, passed out. Later, he was told to leave the club by Ferguson after Ferguson became aware of appellant urinating on the barroom floor. Upon escorting appellant out of the club, a scuffle erupted between the two. This resulted in Ferguson going over the railing and hitting his head on the concrete four feet below. The victim spent several weeks in the hospital where, despite various operations, he died.

Appellant was arrested and charged with murder. The first district justice bound him over for trial on a voluntary manslaughter charge. After being rearrested, he was bound over on a murder charge by a second district justice. He went to trial on both charges and a verdict of guilty of involuntary manslaughter was returned by the jury.

I.

Appellant’s primary allegation of error is one of first impression before this court. The contention is that the lower court erred when it ordered the defense to disclose certain information to the Commonwealth through pre-trial discovery. As a result, we are called upon to interpret Pennsylvania Rule of Criminal Procedure 305. More specifically, we must examine Rule 305 C to determine the scope of appellant’s duty to disclose. In so doing, we must keep in mind that questions involving pre-trial discovery in criminal cases lie generally within the discretion of the trial judge and his actions will not be reversed unless such discretion was abused. Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963).

Litigation concerning pre-trial discovery is quite common. The United States Supreme Court case of Brady v. Maryland was the beginning of defense rights to state information. Brady mandated that certain evidence in the hands of a prosecutor be turned over to the defense. Since then, courts have consistently struggled to comply.

A more recent case discussing pre-trial discovery guidelines is Wardius v. State of Oregon. The Supreme Court noted that a liberal practice of pre-trial discovery would best serve the ends of justice. Both parties are deserving of the maximum amount of discovery with which to prepare their cases; discovery is a two way street. In a concurring opinion, however, Justice Douglas cautioned about the rights guaranteed the accused in the Bill of Rights. The courts are not allowed to change the balance which is tipped in favor of the people as a redress to the advantage that inheres in a government prosecution.

Clearly, the purpose of the discovery rules is to insure a fair trial for both parties involved. It cannot be ignored, however, that the accused does not have equal access to the same information as does the Commonwealth. The prosecution is provided with an abundance of information gleaned from various governmental agencies. Most of the sources of this information are closed to the accused. In response to the court’s realization of this, Pennsylvania greatly liberalized the discovery rules for criminal cases. These new rulings were intended to rectify the insufficiencies of the then existing rules. The rule took away some of the discretionary powers of a trial judge by making the discovery of specific information mandatory but retained the liberal purpose of the rule by allowing the discretionary discovery of other items. In the myriad of cases discussing discovery issues, few, if any, analyze the problems from the point of Commonwealth discovery.

Mandatory disclosure by the defendant is limited to notice of either an alibi defense or of an insanity or mental infirmity defense. If either of these defenses are to be used, the defendant is required to disclose the pertinent information needed by the Commonwealth. This includes names and addresses of any supporting witness, expert or otherwise. With mandatory disclosure by the defendant comes the right to reciprocal disclosures by the Commonwealth.

Discretionary disclosure by the defendant entitles the Commonwealth to results and reports of all examinations, testing or experiments related to the case as well as the names and addresses of eyewitnesses. Prerequisites to the Commonwealth receiving this information are a showing of materiality and reasonableness and that the defendant requested and received reciprocal discovery.

The discovery petitioned for by the Commonwealth and ordered by the trial court judge was: (1) names and addresses of any eyewitnesses the defendant intended to call and a copy of any statement made by or adopted by said witnesses; (2) names and addresses of any expert witnesses the defendant intended to call and a copy of any report by the expert witnesses; and (3) names and addresses of any witnesses intended to be called to establish the defense of intoxication and a copy of any statements given by said witnesses or adopted by them.

Initially, after a close comparison of the judge’s order with the guidelines of Rule 305, we agree with appellant that the discovery rights were too broad. With respect to the first item, there can be no dispute that the Commonwealth was entitled to the names and addresses of the eyewitnesses but it was not entitled to any statements of the eyewitnesses. While the rules specifically require the Commonwealth to disclose such statements, the rules do not provide them with a reciprocal right. Since it appears obvious that the legislature purposely did not intend that the Commonwealth receive this information, the judge erred in allowing such discovery.

Granting the Commonwealth’s second discovery request was also improper. The rules only provide for two circumstances in which the names and addresses of witnesses are given to the Commonwealth. One is if there are eyewitnesses and the other is if the witnesses would be supporting an alibi defense or an insanity or mental infirmity defense. Names and addresses of expert witnesses are allowed only if they fall within the latter category. So, while the second part of the request pertaining to reports may have been proper, since there was no showing that the experts were in support of a specified defense they were not discoverable.

The last discovery request deals with appellant’s state of intoxication on the night of the incident. As previously noted, the Commonwealth is entitled to certain defense witnesses but they are not entitled to all defense witnesses. An intoxication defense is not an alibi nor is it an insanity or mental incapacity defense and, therefore, does not require disclosure of supporting witnesses. Since the names and addresses of intoxication witnesses were outside the parameters of Rule 305, the trial court should not have compelled the appellant to turn them over to the Commonwealth.

Although the trial judge over extended his discretionary discovery powers, we find no prejudice or harmful error which would require a reversal or a new trial. In reaching that decision, we employ the standards and definitions found in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). First, an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless, and second, that an error can be harmless only if the appellate court determines that the error could not have contributed to the verdict.

We find support for our result. The appellant’s brief is blatantly devoid of any specific, or general, instances of prejudice or harm. In addition, appellant’s counsel was provided an opportunity at argument to rectify this deficiency but could not do so. We know only that appellant complied with the order, however, he does not tell us what exactly it was that he was forced to give the Commonwealth and how such compliance hurt his case or contributed to the jury’s verdict decision.

II.

Appellant’s second argument alleges error in the trial court’s decision not to instruct the jury on self-defense/justification. After considerable discussion by the court and the attorneys as to the points of charge, it was determined that an instruction of self-defense/justification would only be given if an instruction of voluntary manslaughter was also given. (See Notes of Testimony, p. 291-296). As a result of appellant’s objection to the voluntary manslaughter instruction, the jury heard neither the voluntary manslaughter nor self-defense/justification instruction. Appellant now argues that the charge on self-defense/justification should have been given without the charge on voluntary manslaughter being given.

The standard of review used by appellate courts in reviewing a judge’s decision as to jury instructions is well established. A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations. They must be read together to determine if they were fair and non-prejudicial. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Person, 345 Pa. Super. 341, 498 A.2d 432 (1985); Commonwealth v. Orlowski, 332 Pa.Super. 600, 481 A.2d 952 (1984).

A reading of the trial court’s rationale as well as the sidebar discussions shows that the judge’s decision not to charge on self-defense/justification was proper under the above standard. As noted by the court, the key element in determining either voluntary manslaughter or self-defense/justification is whether or not a defendant acted with “reasonable belief.” Should the jury find that he acted with unreasonable belief, a voluntary manslaughter conviction is warranted. If, however, the jury should find that a defendant acted with reasonable belief, then the concept of self-defense/justification would warrant an acquittal. (See Subcommittee Draft of Proposed Jury Instructions, Nos. 9.0505A, 9.505E, 15.2503B). As such, both instructions should be given together if the situation so justifies.

It is undisputed that Pennsylvania law affords a defendant the opportunity to decide if the jury should hear the charge on voluntary manslaughter. Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983). In making his decision, the defense must weigh all alternatives. Here, the appellant had to balance the harm of a voluntary manslaughter charge against the benefits of a self-defense charge. In the present situation, he was receiving the benefit of not having a voluntary manslaughter instruction even though he was charged with the crime of voluntary manslaughter. He was not entitled to have the jury hear the self-defense/justification charge unless they were allowed to hear the charge of voluntary manslaughter as a lesser included offense of murder. Under these particular circumstances, the lower court’s ruling must stand.

III.

Next, appellant argues that the evidence presented at trial was insufficient to support an involuntary manslaughter conviction. Specifically, it is alleged that appellant was not aware of and did not consciously disregard a substantial unjustifiable risk that death could result from his conduct. Furthermore, he argues that there is no evidence that he should have been aware that such a risk existed.

The test for evaluating the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all reasonable inferences therefrom upon which the jury could properly have based its verdict, there is sufficient evidence to enable the trier of fact to find beyond a reasonable doubt every element of the crime of which the appellant has been convicted. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979).

Appellant, charged with murder and voluntary manslaughter, was found guilty by a jury of involuntary manslaughter. After listening to all the evidence, the jury could reasonably interpret the testimony as satisfying the elements of involuntary manslaughter. The crucial element in order to convict is conduct that is reckless or grossly negligent. After a review of the record we find no unreasonableness on the part of the jury. (Grabbing, pushing or shoving a 62-year-old man over a porch railing so that he hits the ground at least four feet below, head first, definitely leads to a reasonable inference of recklessness or gross negligence). Therefore, we agree with the court below and find the evidence sufficient to sustain the jury’s verdict.

IV.

Appellant next argues that the trial court improperly allowed the Commonwealth to give testimony as to appellant’s character. It is well established in Pennsylvania that an individual facing criminal prosecution is allowed to introduce evidence concerning his good reputation or character in any manner that properly relates to the subject matter of the charge at issue. Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983). Once his character is put at issue, the appellant’s testimony may properly be rebutted by the Commonwealth.

During the case sub judice, appellant was asked: “... (D)id you intend to hurt ... ?” In his answer, appellant replied: "... I wouldn’t hurt anybody that way.” Later, in response to another question, the appellant stated: "... I just know I wouldn't hurt that man. I would never intentionally hurt anybody.” (N.T., p. 271; 278-279). Appellant’s statements were clearly intended to convey to the jury a non-violent nature. He was accused of hurling a man over a porch railing, thereby causing his death. Appellant anticipated that his statements would be interpreted by the jury in a favorable light, to wit, that appellant did not have the tendencies or capabilities to do what was allegedly done. As such, the Commonwealth was entitled to show the jury that the appellant was indeed capable of such acts. 10A P.L.E. Criminal Law Sec. 565 (1970 Ed.) (footnotes omitted). Therefore, the lower court properly permitted testimony regarding appellant’s reputation in the community for peacefulness.

V.

Appellant’s last two arguments of error are in reference to the Commonwealth’s actions in refiling the charge of murder. The District Attorney first brought the murder charge before District Justice Joseph Solomon. After a preliminary hearing, District Justice Solomon determined that a prima facie case of murder was not made but that the appellant could be bound over for trial on a voluntary manslaughter charge. The District Attorney, ex parte, petitioned the court to allow the Commonwealth to refile the murder charge before a second magistrate, District Justice Paul Hardy. The request was granted and appellant was rearrested. At this time, appellant became aware of the Commonwealth’s request and filed a petition asking that the resulting order be vacated and that a hearing be granted to respond to the Commonwealth’s petition to refile. The appellant’s petition for a hearing was denied but, alternatively, was granted a continuance of the second preliminary hearing. When he heard the Commonwealth’s evidence, District Justice Hardy found sufficient evidence for murder and bound appellant over for trial on that charge. As a result of these procedural actions, the charges against the appellant were docketed under two numbers, one for the voluntary manslaughter charge and another for the murder charge.

Initially, appellant makes a two-pronged argument, first, that the court should not have allowed the charge to be refiled and, second, that at the very least, the murder charge should not have been refiled ex parte, that is, without notice to appellant and without a hearing. The lower court disagreed with the first part and, although it agreed with the second part, found no prejudice or harmful error. After a careful review, we agree.

The Pennsylvania Supreme Court case of Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) allows the Commonwealth to refile charges dismissed by the magistrate if it finds that it has been aggrieved by the decision. This is in keeping with established Pennsylvania law. In so doing, the Commonwealth need not present additional evidence, although it most often will. See, In re Riggins, 435 Pa. 321, 254 A.2d 616 (1969). We decline to hold that merely because the charge against appellant was reduced rather than dismissed the Commonwealth was precluded from refiling if it deems itself aggrieved by the decision. As such, we find no error in the refiling.

As with the court below, the fact that the refiling took place without notice to the appellant required more serious consideration. As the Commonwealth correctly conceded, appellant should have been allowed an opportunity to argue against the right to refile. Both sides argued Commonwealth v. Sufrich, 320 Pa.Super. 56, 466 A.2d 1058 (1983), with the Commonwealth arguing it does not apply and the appellant arguing that it does. While the petition in Sufrich was termed “a change in venue,” it was actually a change from one district justice to another. It is similar to this case and is therefore applicable. Since Sufrich required notice and a hearing be given in situations involving “temporary assignment(s) of a district justice,” appellant was entitled to those rights in the present case. Since, however, appellant was not harmed by the decision, reversal is unnecessary. Appellant was given a continuance of the preliminary hearing in order to better prepare. The same evidence was presented by the Commonwealth so appellant was not unfairly surprised by the actions during the proceedings. Furthermore, appellant was ultimately acquitted of the second charge of murder. The final finder of fact determined the issue in appellant’s favor. Therefore, the decision by the court, although in error, was never the less harmless.

VI.

Appellant’s last argument is also a result of the previous facts. Because the charges against appellant were docketed under two case numbers, the trial judge imposed two concurrent sentences upon him. This, according to appellant, constitutes error.

The Fifth Amendment of the United States contains a protection against double jeopardy. That clause provides "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb____” The double jeopardy protection consists of three guarantees, one of which protects against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); North Carolina v. Pearce 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981); Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981). Sentences need not be consecutive in order to be multiple. Concurrent sentences, imposed for the same crime, are sufficient to violate the double jeopardy clause. Houtz, supra. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976).

The present case is clearly one in which the appellant was given multiple sentences for the same offense. Where the crimes charged arise out of the same transaction, differing merely in degree, only one penalty can be imposed. Commonwealth ex rel. Tokarchik v. Claudy, 174 Pa.Super. 509, 102 A.2d 207 (1954). It is understood that the trial judge sentenced the appellant twice because of the procedural problem caused by refiling, but that does not change the result. (Transcript of Sentencing, p. 8-10). A sentence illegally imposed must be remedied. That remedy is to have the illegal sentence striken. Claudy, supra. That is the remedy to be effected here.

Affirmed. Remanded for clarification of sentence, consistent with this opinion. Jurisdiction is relinquished.

      . A more complete analysis of these facts is contained in a later discussion of addpellant’s last two arguments.

      . The pertinent parts of Rule 305 C read as follows:
      C. Disclosure by the Defendant
      (1) Mandatory

      (a) Notice of Alibi Defense: A defendant who intends to offer the defense of alibi at trial shall, at the time required for filing the omnibus pretrial motion under Rule 306, 'file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim.
      (b) Notice of Insanity or Mental Infirmity Defense: A defendant who intends to offer at trial the defense of insanity, or a claim of mental infirmity, shall, at the time required for filing an omnibus pretrial motion under Rule 306, file of record notice signed by the defendant of the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific available information as to the nature and extent of the alleged insanity or claim of mental infirmity, the period of time which the defendant allegedly suffered from such insanity or mental infirmity, and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call a trial to establish such defense.
      (c) Disclosure of Reciprocal Witnesses: Within seven (7) days after service of such notice of alibi defense or of insanity or claim of mental infirmity defense, or within such other time as allowed by the court upon cases shown, the attorney for the Commonwealth shall disclose to the defendant the names and addresses of all persons the Commonwealth intends to call as witnesses to disprove or discredit the defendant’s claim of alibi or of insanity or mental infirmity.
      (2) Discretionary With the Court:

      In all court cases, if the Commonwealth files a motion for pretrial discovery, the court may order the defendant, subject to the defendant’s rights against compulsory self-incrimination, to allow the attorney for the Commonwealth to inspect and copy or photograph any of the following requested items, upon a showing of materiality to the preparation of the Commonwealth’s case and that the request is reasonable:

        (a) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief, or which were prepared by a witness whom the defendant intends to call at trial, when results or reports relate to the testimony of that witness, provided the defendant has requested and received discovered under paragraph B(l)(e);
      (b) the names and addresses of eyewitnesses whom the defendant ' intends to call in its case in chief, provided that the defendant has previously requested and received discovery under paragraph B(2)(a).

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . See, e.g., Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); United States v. Ahmad, 53 F.R.D. 186 (M.D.Pa.1971); Commonwealth v. Barnes, 463 Pa. 259, 344 A.2d 821 (1975); Commonwealth v. Royster, 472 Pa. 581, 372 A.2d 1194 (1977).

      . 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). Note that Wardius dealt specifically with alibi notice.

      . Id., at 480, 93 S.Ct. at 2214.

      . New P.R.Crim.P. 305 replaced the old Pa.R.Crim.P. 310, effective January 1, 1978.

      . Rule 310 was criticized as being too stringent and narrow. See, e.g., Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 320 A.2d 134 (1974).

      . Pa.R.Crim.P. 305 C(1)(a) and (b).

      . Id., 305 C(2)(a) and (b).

      . Id., 305 B(2)(a).

      . A person is guilty of involuntary manslaughter when, as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of an unlawful act in a reckless or grossly negligent manner, he causes the death of another person.
      18 Pa.C.S.A. Sec. 2504(a).

      . In his instructions, the judge stated the elements of involuntary manslaughter to be as follows: first, that James Ferguson is dead; second, that the appellant’s conduct was a direct cause of his death; and third, that appellant’s conduct was reckless or grossly negligent. See N.T., p. 314-315.

      . One of the earliest cases allowing the Commonwealth to refile is Commonwealth v. Sharpless, 31 Pa.Super. 96 (1906). Petition of McNair, 324 Pa. 48, 187 A 498 (1936) is the leading case allowing for refiling after a dismissal of charges by the magistrate. In re Riggins, 435 Pa. 321, 254 A.2d 616 (1969) and Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) follow the reasoning of McNair.

      . See also Pa.R.Crim.P. 23 which provides for the temporary assignment of a district justice in order to insure fair and impartial proceedings.


author: CIRILLO, Judge: JOHNSON, Judge,

text:
    504 A.2d 862
    Kathryn J. BLOUCH, Appellant (at 628) v. CLIFFORD R. ZINN & SON, INC., Joel H. Zinn, Individually and Aetna Life Insurance Company. Appeal of CLIFFORD R. ZINN & SON, INC., and Joel H. Zinn (at 602).
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1985.
    Filed Jan. 31, 1986.

      Wiley P. Parker, Lebanon, for appellants in No. 602 and appellees in No. 628.
    Robert I. Cottom, Reading, for appellant in No. 628 and appellee in No. 602.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

Kathryn Blouch, seeking the proceeds of her deceased husband’s life insurance policy, initiated this action in trespass and assumpsit against Aetna Life Insurance Company (hereinafter “Aetna”), Joel H. Zinn, an independent insurance agent, and Clifford R. Zinn and Son, Inc., in the Court of Common Pleas of Lebanon County. The jury found that credit had been extended to Mr. Blouch for the first premium due on his policy and returned a verdict in favor of Mrs. Blouch in the amount of forty-thousand dollars ($40,000.00), less two-hundred and thirty four dollars and eighty cents, the amount of the first premium. The same jury then determined that Aetna was not entitled to indemnity from Zinn and his corporation. Motions for judgment n.o.v. and/or a new trial were timely filed by both Aetna and Zinn. The trial judge directed that judgment be entered on the jury’s verdict in favor of Blouch, granted Aetna’s motion for judgment n.o.v. as against Zinn on the indemnity verdict and denied Zinn’s motions for new trial and/or judgment n.o.v. This appeal followed. We affirm in part and reverse in part.

Four issues are raised on appeal: 1) whether the trial court erred in granting Aetna’s motion for judgment n.o.v. and entering judgment in favor of Aetna and against Zinn; 2) whether the trial court properly submitted the case to the jury under the theory that the unconditional delivery of the life insurance policy created a presumption that credit had been extended to Blouch for the initial premium; 3) whether the trial court erred in sustaining Zinn’s objection to Blouch’s interrogatory which sought to discover if Zinn had issued a personal check or a firm check within the past ten (10) years in payment of premiums for any client prior to receiving payment from insured; and 4) whether the trial court erred in sustaining Zinn’s objection to Blouch’s interrogatory which sought to discover if Zinn had paid within the past ten (10) years a homeowner, commercial or automobile policy premium on behalf of a client. Aetna only appeals on the second issue. Zinn appeals on the first and second issue and is joined by Blouch on the first. Blouch appeals individually on the third and fourth issues.

Eugene Blouch engaged in numerous transactions with Joel Zinn, an insurance agent. In a number of these transactions, Zinn extended credit to Blouch. Blouch was permitted to pay the premium after the effective date of the policy. In February 1979, Blouch submitted a written application for an Aetna life insurance policy to Zinn, an agent for Aetna. Zinn mailed the application along with a report of Blouch’s physical examination to the local Aetna office. Aetna provisionally approved the application and forwarded the policy to Zinn.

Zinn’s employee then mailed the policy to Blouch with an invoice attached. The invoice did not list the date the initial premium was due nor that the policy was ineffective until the initial premium was paid. Zinn telephoned Blouch and informed him that the policy was in the mail and for Blouch to call if he had any questions. Zinn did not question Blouch about the payment of the first premium nor inform Blouch that the policy was ineffective until the premium was ,paid. Blouch died two weeks later. The following month Kathryn Blouch, decedent’s wife, requested payment of the proceeds due under the policy. Aetna refused payment claiming the first premium was never paid and that the policy never became effective. Mrs. Blouch then initiated this claim against Aetna and Zinn.

In deciding whether the judgment n.o.v. was properly entered, our focus is on whether Aetna was liable for the payment of the proceeds based upon Zinn’s extension of credit to Blouch and Aetna’s ratification of such a practice. In asserting that Aetna and Zinn were liable under the life insurance policy, Blouch claimed that Zinn extended credit to decedent in prior casualty and homeowner insurance transactions, Zinn extended credit to other clients for life insurance with Aetna and that Aetna knew of this practice and ratified and accepted it.

Under Pennsylvania law, an insurance agent is precluded from offering or granting premium rebates, special advantages or other inducements to a prospective client to secure an insurance contract. See Act of May 17, 1921, P.L. 789, § 635, 40 P.S. § 275. This section provides in pertinent part:

No insurance agent, solicitor, or broker, personally or by any other party, shall offer, promise, allow, give, sell off, or pay, directly or indirectly, any rebate of, or part of, the premium payable on the policy or on any policy or agent’s commission thereon ... or any special advantage in date of policy or age of issue, or any paid employment contract for services of any kind, or any other valuable consideration or inducement ...

Id. The object of this legislation is to outlaw unfair treatment of prospective insurance clients of the same class. McDowell v. Good, Chevrolet-Cadillac, 397 Pa. 237, 154 A.2d 497 (1959).

Aetna contends the judgment n.o.v. was properly granted because Zinn violated this statutory provision by extending credit. While there is case law which holds that delivery of a life insurance policy on credit confers a special advantage in violation of this statute, Katchmer v. Prudential Insurance Co. of America, 325 Pa. 69, 188 A. 869 (1937), it does not apply to the case sub judice. In Katchmer, the agent intimated to the proposed insured that they should postpone the insurance agreement for a few days to allow the purchaser to think it over. The agent expressly stated that the client should keep the money. Therefore, the policy in Katchmer was never truly delivered. The appellant merely accepted the policy for the purpose of inspection. To allow a party to enforce a policy under these conditions would surely constitute a special advantage. In the case sub judice, no testimony was given to demonstrate that Zinn furnished any rebate to Blouch by extending credit to him for the initial premium, or that Zinn used the extension of credit as an inducement to Blouch. On delivery, Blouch accepted the policy as effective and not under the pretense of inspecting it.

Additionally, Zinn’s agency agreement with Aetna specifically provided that Zinn was not authorized to extend the time for paying any premiums, and that Zinn could not waive or alter the agreement. Furthermore, the application which Blouch submitted, and the policy which he received, expressly stated that the policy was ineffective until the initial premium was paid.

A principal is only responsible for the unauthorized acts of his agents when he accepts the benefits of the unauthorized act and confirms the authority of the agent to perform the act. Employers ’ Liability Assurance Corp. v. Fischer & Porter, 167 Pa.Super. 448, 75 A.2d 8 (1950). Under the terms of the insurance statute, the agency agreement and the insurance policy, Aetna could only be held liable if it accepted and ratified Zinn’s unauthorized practice of extending credit either expressly or by implication.

In this case, the jury determined that credit had been extended to Blouch for the initial premium. The same jury then determined that Aetna was not entitled to indemnification from Zinn, and therefore concluded that Aetna knew of Zinn’s practice of extending credit to insureds and accepted and ratified such a practice. In granting Aetna’s motion for judgment n.o.v. as concerned the indemnification question, the trial judge concluded there was no reasonable basis for the jury’s decision. The court held that Zinn exceeded the scope of his authority in extending credit to Blouch and that Aetna was not liable for the consequences of such an action.

We cannot accept these conclusions. In his charge to the jury, the trial judge stated:

Now, you decide. Did [Zinn] extend credit in violation of his agreement, or did he mail it without extending credit but that Mr. Blouch relied on past practices and assumed that he had the time to pay? Were these past practices condoned by Aetna? Did [Aetna] by any of its conduct alter the terms of this [agency] agreement? ... You are to determine whether or not this agency agreement has been exceeded by Mr. Zinn. If it has, then your verdict is for the plaintiff, Aetna. If he has not, then your verdict is in favor of Zinn.

While Zinn’s extension of credit may have violated the terms of Zinn’s agency agreement with Aetna, the jury was free to decide, under these instructions (and obviously did decide) that Aetna condoned Zinn’s practice of extending credit for the initial premium. Therefore, even though Zinn exceeded the literal bounds of his authority, the jury reasonably concluded that his actions were implicitly authorized by Aetna.

The granting of a motion for judgment n.o.v. is a drastic act which often leads to drastic results. This case is no exception. As a result of the trial court’s decision, Zinn effectively became individually liable for the payment of the proceeds on Blouch’s life insurance policy. In reviewing a trial court’s granting of a judgment n.o.v., the evidence most favorable to the verdict winner, in this case Zinn, must be considered with all reasonable inferences therefrom. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970); Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427 (1984). A judgment n.o.v. should only be entered when the facts are such that no two reasonable persons could disagree that the verdict is improper. Cummings v. Borough of Nazareth, 427 Pa. 14, 233 A.2d 874 (1967); McCloskey v. New York Life Insurance Co., 292 Pa.Super. 1, 436 A.2d 690 (1981).

While Aetna asserted that company policy prohibited the extension of credit, it was for the jury to determine whether Aetna actually enforced this policy. The jury reasonably inferred from the evidence advanced that Aetna knew of Zinn’s course of dealing with other proposed policyholders and accepted such dealings. Aetna is precluded from availing itself of the benefits of the agent’s practices and at the same time repudiating the agent’s authority to take such action. Friedman v. Kasser, 332 Pa.Super. 475, 481 A.2d 886 (1984); Employers’ Liability, supra. Once Aetna ratified Zinn’s extension of credit to proposed policyholders, it could not escape liability based on Zinn’s violation of the agency agreement or the policy.

It is well-established that a provision in a life insurance policy stating that the policy is ineffective until payment of the initial premium is for the insurer’s benefit and may be waived by the insurer. Susquehanna Mutual Fire Insurance Co. v. Elkins, 124 Pa. 484, 17 A. 24 (1889). Clearly, there was sufficient evidence presented to support the jury’s finding that Aetna had waived this provision in the case sub judice.

The jury’s decision that Zinn was not required to indemnify Aetna was not so patently erroneous. The question of whether Aetna condoned Zinn’s custom of extending credit was for the jury. The jury’s determination that Aetna knew of and accepted this practice, despite its violation of company policy, was reasonable , and supported by the evidence presented. Testimony was elicited which amply demonstrated that Zinn extended credit to other proposed policyholders with Aetna. The evidence indicated that Zinn had taken such action on at least three previous occasions. No evidence was presented to show that Aetna at any time questioned or complained about Zinn’s conduct in these instances.

The jury properly concluded that Aetna accepted the benefits of Zinn’s unauthorized act and confirmed Zinn’s authority to perform the act. It is clear that Aetna would not be entitled to indemnification from Zinn. In Pennsylvania, the right to indemnity rests upon a difference between the primary and secondary liability of two persons, each of whom is made responsible to an injured party. The right to indemnity arises when a person, without active fault on his own part, has been compelled to pay damages occasioned by the negligence of another. Burbage v. Boiler Engineering and Supply Co., 433 Pa. 319, 249 A.2d 563 (1969).

Such was not the situation in the case sub judice. As the underwriter for Blouch’s policy, Aetna is primarily and solely responsible for the payment of proceeds on an effective life insurance policy. The jury clearly found that Blouch’s policy was effective and that Aetna condoned the practice which allowed it to become effective, namely, the extension of credit. Therefore, Aetna was not entitled to indemnity from Zinn.

We hold that Blouch produced sufficient evidence to allow the jury to reasonably infer the facts necessary to establish Aetna’s liability under the insurance policy and that the judgment n.o.v. was improperly entered. Blouch presented evidence to show that while Zinn was precluded by his agency agreement and the policy from extending credit on life insurance policies, Aetna waived these limitations and was therefore liable on Blouch’s policy.

On the second issue, both Aetna and Zinn argue that Pennsylvania case law is void of decisions holding that the unconditional delivery of a life insurance policy raises a presumption of the extension of credit. We disagree. Though not of recent vintage, there is Pennsylvania case law which so holds. See e.g., Woloshin v. Guardian Life Insurance Co., 146 Pa.Super. 152, 22 A.2d 54 (1941). Numerous other state courts have reached the same conclusion. Beggs v. Metropolitan Life Insurance Co., 219 Iowa 24, 257 N.W. 445 (1934); Union Life Insurance Co. v. Parker, 66 Neb. 395, 92 N.W. 604 (1902); Columbian Nat’l. Life Insurance Co. v. Wirthle, 73 Okl. 302, 176 P. 406 (1918); Fidelity & Casualty Co. v. Chambers, 93 Va. 138, 24 S.E. 896 (1896).

Aetna and Zinn contend that the presumption of extended credit is not applicable to the case sub judice because the policy in question did not contain a clause which formally acknowledged the payment of the first premium. Therefore as Aetna and Zinn allege, the basis for holding that the delivery of an insurance policy makes out a prima facie case of payment of the initial premium is not present. Appellants, Zinn and Aetna, rely on Shook v. New York Life Insurance Co., 343 Pa. 185, 22 A.2d 647 (1941), Brandis v. Empire State Life Insurance Co., 315 Pa. 558, 174 A. 104 (1934), and Eaton v. New York Life Insurance Co., 315 Pa. 68, 172 A. 121 (1934) as support for this argument. This reliance is misplaced. These cases hold that an acknowledgment of payment of the first premium in a policy which has been delivered gives rise to a conclusive presumption. Accord Couch, Insurance 2d § 9:28 (Rev. edition 1984); Appleman, Insurance Law and Practice, § 8457 (2d edition 1985).

The trial court did not submit the present case to the jury under the theory of a conclusive presumption. Instead, the judge submitted the case to the jury under the theory of a prima facie presumption. Under this latter theory, the unexplained delivery of a life insurance policy, absent an acknowledgment of payment of the premium, but with possession by insured at the time of death, is prima facie proof that credit has been extended. Woloshin v. Guardian Life Insurance Co., 146 Pa.Super. 152, 22 A.2d 54 (1941). Accord Couch, Insurance 2d, § 9:32; Appleman, Insurance Law and Practice, § 8457.

This presumption is subject to rebuttal. To successfully defeat this presumption, the party opposed to it must demonstrate by a preponderance of the evidence that credit was not extended, nor had any actions been taken to lead the insured to reasonably believe that credit had been extended. In the case sub judice, Zinn and Aetna presented evidence that Blouch’s initial premium was not paid prior to his death and that credit had not been extended to him for this premium. They relied primarily on the fact that their agency agreement and the life insurance policy both required páyment of the first premium before the policy went into effect. Aetna argued that because Zinn was precluded from extending credit to proposed policyholders, it necessarily followed that credit was not extended.

In opposition to this evidence, Mrs. Blouch asserted that her husband often paid bills in cash maintaining no records to indicate such payment. Furthermore, Blouch contended that in previous insurance arrangements, Zinn extended credit to Blouch for the initial premium and that Zinn telephoned Blouch to inform him that the policy had been mailed but failed to state that a premium payment was due or that the policy was ineffective until receipt of such payment. Based on this conflicting evidence, the question of whether or not credit had been extended and accepted, so as to activate the policy, was properly submitted to the jury. New York Life Insurance Co. v. Seifris, 46 F.2d 391 (3d Cir.1931) (applying Pennsylvania law).

The two remaining issues dealing with the interrogatories are identical in nature and therefore will be discussed as one. In sustaining Zinn’s objections to answering these interrogatories, the trial court found that while the information sought was not privileged, a question seeking information concerning the extension of credit to others was irrelevant to the case sub judice. In addition, the court held that it would be unduly burdensome for Zinn to answer these interrogatories.

The question of whether a discovery request is too broad or too burdensome is for the trial court, and not the appellate court. The trial court is given broad discretion to deal with discovery issues. Stern v. Vic Snyder, 325 Pa.Super. 423, 473 A.2d 139 (1984); Hercek v. Whitehall Township Zoning Hearing Bd., 20 Pa.Cmwlth. 509, 342 A.2d 127 (1975). The trial court’s decision to order or to limit discovery will not be disturbed unless an abuse of discretion is demonstrated or it is shown that such an order was prejudicial; Blouch proved neither in the case sub judice.

The trial court’s refusal to dismiss Zinn’s objections to answering questions concerning his conduct in extending or denying credit to others did not weaken Blouch’s case. The court presented the case to the jury under the theory that Zinn extended credit to Blouch for the first premium. The jury accepted this theory and entered a verdict in Blouch’s favor. Therefore, Zinn’s failure to answer these questions in no way prejudiced Blouch’s case.

The trial court also acted well within the bounds of its discretion in sustaining Zinn’s objections. The purpose of discovery is to allow all parties and the court to properly prepare for the case. Peoples City Bank v. John Hancock Mutual Life Insurance Co., 353 Pa. 123, 44 A.2d 514 (1945). See 23 Am.Jur.2d, Depositions and Discovery § 270. As the verdict indicates, Blouch successfully proved her claim. Blouch’s substantial rights were not injuriously affected by the trial court’s decision. The fundamental objectives of discovery, allowing counsel to gain adequate knowledge of the facts and issues, was fulfilled. We hold that the trial court did not abuse its discretion in refusing to dismiss Zinn’s objections to Blouch’s interrogatories concerning his practice of extending credit to other clients.

Accordingly, we reverse the trial court’s granting of Aetna’s motion for judgment n.o.v. and direct judgment to be entered on the jury’s verdict in favor of Zinn. We affirm on all other judgments. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I must respectfully dissent from that portion of the majority Opinion which finds that Aetna waived the limitations in its agency agreement with Zinn, and reinstates the jury verdict against Aetna. In the second phase of the case, the jury was instructed as follows:

Now, in this phase of the case, the plaintiff, Aetna, contends that it has been rendered liable to pay a verdict because its agent, Zinns, did not comply with the agency agreement____ [I]t is Aetna’s position that the limitation of authority imposed by them on Mr. Zinn was exceeded and, therefore, Aetna should not have to pay this verdict but Mr. Zinn does for breaching the agency agreement.
Mr. Zinn, on the other hand, contends that he at all times complied with the terms of the agency agreement. In particular, he said that he did not extend credit to Mr. Blouch because under the terms of the agency agreement, ... [he] was prohibited from extending the time for the payment of premiums____
... [M]embers of the jury, you must concentrate on this agreement, the limitations imposed on the authority of an agent and whether or not Mr. Zinn violated it.
If you find by a preponderance of the evidence that he did, then your verdict would be in favor of Aetna. If you find by a preponderance of the evidence that he did not exceed his authority, the limitations of his authority as set forth in the agreement, then your verdict would be in his favor____

N.T., 12/15/82 at 324-26 (emphasis added).

It is clear that the jury was instructed simply to determine whether Zinn complied with the terms of his agreement with Aetna. Although the portion of the charge cited by the majority at page 6 of the Opinion asked the jury whether Aetna altered the terms of the agreement, the “past practices” referred to immediately preceding relate to previous insurance policies written by Zinn on behalf of Mr. Blouch, which were not Aetna policies. N.T., 12/15/82 at 328. Indeed, the trial court reiterated, “You are to determine whether or not this agency agreement has been exceeded by Mr. Zinn. If it has, then your verdict is for the plaintiff, Aetna. If he has not, then your verdict is in favor of Mr. Zinn.” N.T., 12/15/82 at 329. Moreover, Zinn never advanced the position that if the jury should find he exceeded the scope of his authority, the jury must then consider whether Aetna condoned his practices and thereby altered the terms of the agency agreement. Zinn merely relied upon his theory that he at all times complied with the terms of the agreement as written.

In reviewing Aetna’s motion for judgment n.o.v., the trial court properly considered the evidence most favorable to Zinn as verdict winner and all reasonable inferences therefrom, see Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427 (1984), and concluded that the jury could not possibly find that credit had been extended by Zinn to Blouch on the one hand, but that Zinn had not violated his agreement with Aetna on the other. This Court must similarly view the evidence and all reasonable inferences in the light most favorable to the verdict winner on an appeal from the entry of a judgment n.o.v. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 132, 266 A.2d 769, 771 (1970). Resolving all doubts in favor of the verdict, I find this to be a clear case in which judgment n.o.v. was properly entered. See Tyus v. Resta, supra; Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980).

Even if the question of whether or not Aetna enforced the terms of its agreement with Zinn was properly advanced and considered by the jury, I do not find enough evidence in the record before us to support the majority’s theory that Aetna knew or should have known that Zinn was extending credit. Zinn’s testimony on direct examination, N.T., 12/15/82 at 315, without more, does not lead to the conclusion that Aetna should be aware that policies were delivered prior to the receipt of premiums.

While I agree with the majority’s disposition of the remaining issues, I would affirm the trial court’s granting of judgment n.o.v.

      . While the "past practices” referred to in this quote relate to insurance policies written by Zinn for Blouch that were not Aetna policies, it is still clear from the remainder of the quote that the jury was charged with determining whether Aetna condoned Zinn’s practice of extending credit thereby altering the terms of the agency agreement.