author: BECK, Judge: BROSKY, Judge,

text:
    538 A.2d 53
    COMMONWEALTH of Pennsylvania v. George TRUDELL, Appellant. COMMONWEALTH of Pennsylvania v. Richard VERDON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 7, 1987.
    Filed Feb. 22, 1988.

      Jane R. Goldberg, Philadelphia, for appellant in No. 1640.
    Jay S. Gottlieb, Philadelphia, for appellant in No. 1792.
    Jo Ann Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BECK, Judge:

At a jury trial, appellants, former Philadelphia police officers, together with one other defendant who has not appealed, were convicted of bribery in official matters and criminal conspiracy. The evidence established that appellants accepted a $400.00 payment to ensure two reputed mob hitmen, Joseph Pedulla and Victor DeLuca, that their bail would not rise above $50,000.00 each. After accepting payment, appellants expedited DeLuca and Pedulla’s processing and arraignment, and they were in fact released on $50,000.00 bail each.

Appellants were subsequently brought to trial. DeLuca and Pedulla testified against them. Both appellants inter alia challenge the competency of these witnesses, but only appellant Trudell has preserved any issues for appeal.

Although both appellants filed timely post-verdict motions, those motions simply stated that the verdict was contrary to the law and weight of the evidence. Such boilerplate challenges do not preserve any issues for appellate review. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Although appellant Verdón “reserved a right” to file supplemental post-verdict motions, the record does not reveal that he filed them. Therefore, appellant Verdón has failed to preserve any issue for appeal. Commonwealth v. Kelly, 365 Pa.Super. 28, 528 A.2d 1346 (1987). We affirm his judgment of sentence.

Appellant Trudell, while having filed boilerplate post-verdict motions, did seek and obtain court permission to file supplemental motions, thereby preserving those issues contained in his filed supplemental motions. Commonwealth v. Rosko, 353 Pa.Super. 307, 509 A.2d 1289 (1986); Commonwealth v. Holmes.

Appellant Trudell has preserved and raised the following claims on appeal: (1) that witness Joseph Pedulla was incompetent to testify; (2) that the testimony of witnesses Victor DeLuca and Joseph Pedulla was patently unreliable; (3) that certain diagrams used by the Commonwealth were impermissibly distorted; (4) that the prosecutor commented on appellant’s failure to testify; and (5) that juror misconduct tainted the entire jury panel. We find all these contentions meritless and so affirm appellant Trudell’s judgment of sentence.

Trudell first argues that Commonwealth witness Joseph Pedulla, an admitted murderer and mobster, should have been ruled incompetent to testify because he had committed perjury before the grand jury and allegedly lacked the moral responsibility to tell the truth. Pedulla admitted to lying before the grand jury but was never prosecuted for perjury. He claimed to have lied pursuant to a mob “code of silence” which required him to protect those persons involved in illegal activities with him.

The court conducted an inquiry into Pedulla’s competency. In response to the court’s questioning, Pedulla repeatedly insisted that since he left the mob his reasons for lying no longer existed. He also acknowledged that taking the oath meant something to him and asserted his belief that only the truth could protect him now.

The trial court found Pedulla competent to testify. In support of this conclusion, the court noted that although in the past Pedulla had displayed contempt for the duty to tell the truth, at present he was conscious of that duty and could observe it.

The competency of a witness to testify is a matter within the sound discretion of the trial judge, whose decision will not be reversed absent a clear abuse of discretion. Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694, 696 (1980); Commonwealth v. Chuck, 227 Pa.Super. 612, 323 A.2d 123 (1974). The breadth of that discretion is wide since the trial judge has the opportunity personally to observe and evaluate the demeanor and sincerity of the witness. Commonwealth v. Mangello, 250 Pa.Super. 202, 206, 378 A.2d 897, 899 (1977). Indeed, we have recognized that the better practice where questions of witness competency arise is to permit the witness to testify and then leave the matter of credibility to the fact finder. Commonwealth v. Short, 278 Pa.Super. at 585-86, 420 A.2d at 696; Commonwealth v. Mangello, 250 Pa.Super. at 206-08, 378 A.2d at 898-99.

The standard by which a trial court’s exercise of discretion on questions of competency must be guided is quite simply stated. In general, the competency of a witness to testify is presumed and the burden of demonstrating the incompetency of the witness falls on the party objecting to competency. Id; see also 42 Pa.Cons.Stat.Ann. § 5911 (Purdon 1982) (“Except as otherwise provided in this subchapter, all persons shall be fully competent witnesses in any criminal proceeding before any tribunal”). Indeed, when the witness is a sane adult, the court need not even conduct an inquiry into competency unless it has some doubt concerning the witness’ competency based on the court’s observation of the witness. Commonwealth v. Fulton, 318 Pa.Super. 470, 465 A.2d 650 (1983).

Several exceptions to the general rule of competency are found in our statutory law. These include husband-wife incompetency, 42 Pa.Cons.Stat.Ann. §§ 5913, 5924 (Purdon 1982), and the “Dead Man’s Rule,” 42 Pa.Cons.Stat.Ann. § 5930 (Purdon 1982). Of somewhat greater importance to the instant case is the final statutory exception to the general rule of competency, which renders incompetent as a witness any person who has been convicted by a court of this Commonwealth of perjury. 42 Pa.Cons.Stat.Ann. §§ 5912, 5922 (Purdon 1982). Although at common law persons convicted of certain crimes other than perjury, such as those involving fraud or deceit, were also deemed incompetent, this ground for incompetency no longer exists. In fact, the perjury exception itself has been given a limited scope by our courts, which have held that only a judgment of conviction of perjury will render a witness incompetent, Commonwealth v. Myers, 485 Pa. 519, 403 A.2d 85 (1979), and that an admission of perjury alone is insufficient. Commonwealth v. Levenson, 282 Pa.Super. 406, 422 A.2d 1355 (1980). See generally Packel, L. and Poulin, A., Pennsylvania Evidence, § 601.4 at 375-77 (1987).

In addition to these statutory exceptions, two other exceptions to the general rule of competency, both of limited scope, have been created by our courts. These exceptions focus on immature and insane or mentally disabled witnesses. As to child witnesses, our courts have expressed a concern that every parent will recognize. Children are peculiarly susceptible to “make-believe” and, therefore, are often not sufficiently aware of or able to fulfill their duty to tell the truth. Rosche v. McCoy, 397 Pa. 615, 621, 156 A.2d 307, 310 (1959). Because of this concern, a special rule of competency for children under the age of fourteen has developed. As to them, an inquiry into competency is required, with the goal being to ascertain whether, as the Rosche Court stated, the child has:

(1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that [the witness] is called to testify about and (3) a consciousness of the duty to tell the truth.

Rosche v. McCoy, 397 Pa. at 620-21, 156 A.2d at 310.

In the child witness cases, the last factor, “consciousness of the duty to tell the truth”, has received particular attention. Although some cases appear to regard this as a stringent requirement that the child be aware of the specific concept of divine punishment for lying, Commonwealth v. Rimmel, 221 Pa.Super. 84, 289 A.2d 116 (1972), this is not the focus of the majority of cases deciding this issue. Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897 (1977). Presently, the trial court is vested with considerable discretion in adjudging a child witness’ consciousness of a duty to tell the truth and appears to be required to find only that the child is sincere, understands the importance of truth-telling and feels that lying is wrong and may have adverse consequences. Commonwealth v. Short; Commonwealth v. Mangello.

The other judge-made exception to the general rule of competency is found in cases involving witnesses who allegedly suffer from some type of mental disability. In these cases, the general standard for competency is stated somewhat differently than in the child witness cases. It has been stated that the witness must be found to be able to give a correct account of the matters he/she has seen or heard and to understand the meaning of the oath. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). Perhaps the most significant difference between these cases and those involving child witnesses is that whereas the child witness cases focus attention on the consciousness of the duty to tell the truth because of a child’s natural inclination to pretend, the mentally disabled witness cases focus their primary attention on the witness’ ability to perceive, remember and communicate facts. Commonwealth v. Ware, 459 Pa. at 354, 329 A.2d at 268; Pennsylvania Evidence, § 601.7 at 392-94. Where the court is assessing the competency of a mentally disabled person, the main concern is understandably whether the witness has the mental ability to understand what he observes, remember it and accurately relate it, since many mental disorders may well affect these mental functions. See, e.g., Commonwealth v. Goldblum, 498 Pa. 455, 463, 447 A.2d 234 (1982) (witness was of below average intelligence and suffered from organic brain damage that allegedly affected his ability to distinguish between fact and fiction).

Turning to an analysis of the competency question before us, we perceive appellant’s argument as to the competency of Pedulla as an attempt to draw elements from both the child witness and mentally disabled witness cases and to apply them to this case, which involves a witness who does not fit into either the category of a child witness or of a mentally disabled witness. Appellant also seeks to have us give more attention to the fact that Pedulla admittedly lied to the grand jury than the law requires. We are unpersuaded by these arguments and agree with the trial court’s determination that Pedulla was competent to testify.

Appellant seeks to have us reverse the trial court’s finding of Pedulla’s competency largely because Pedulla is a convicted criminal and an admitted liar who at one time disregarded his duty to tell the truth out of a sense of responsibility to his organized crime group’s code of silence. As the foregoing survey of the law of competency demonstrates, none of these facts concerning Pedulla make him legally incompetent. They are all relevant only to Pedulla’s credibility.

The fact that Pedulla admits that he has previously lied, even in the context of a grand jury proceeding, is not a ground for a finding of incompetency. As we have stated, only an actual judgment of conviction of perjury provides such a ground. Moreover, we have previously held that a witness’ admission of prior lying alone does not even require that the trial court conduct an inquiry into the witness’ competency and bears only on his credibility absent evidence of a mental defect that might render the witness incapable of testifying truthfully. Commonwealth v. Dolhancryk, 273 Pa.Super. 217, 417 A.2d 246 (1979).

Similarly, Pedulla’s commission of other crimes not involving perjury is not a ground for incompetency. As we have also demonstrated, only a conviction for the crime of perjury is relevant under our law.

Lastly, neither Pedulla’s prior allegiance to a “code of silence” nor his somewhat evasive answers to the trial judge’s questions regarding Pedulla’s present attitude toward lying to protect himself persuade us that Pedulla was incompetent. Appellant apparently finds these circumstances probative of either the fact that Pedulla is not conscious of a duty to tell the truth, as a child witness might not be, or that, as appellant states in his brief, Pedulla is a “sociopath” who cannot tell the truth, as a mentally disabled person might not. We, on the other hand, have carefully reviewed Pedulla’s answers to the trial judge’s competency examination and conclude, as did the trial court, that Pedulla was conscious of the duty to tell the truth and was mentally capable of doing so, although in the past he has chosen to disregard this duty.

The record reveals that Pedulla comprehended the obligation of his oath. Although Pedulla experienced some difficulty in comprehending the trial judge’s hypothetical questions regarding truthfulness, the judge was satisfied that Pedulla’s difficulty in responding to the hypothetical questions did not result from his lack of understanding the obligations of his oath. During the colloquy, Pedulla stated that the oath meant “something” to him. The judge then asked Pedulla if, hypothetically, Pedulla would lie at trial if he felt the need to protect himself. Pedulla at first said he could not answer, since such a need to lie was not in fact present at this trial. He then said that he did not think he would lie. Thus, the colloquy shows that Pedulla understood the obligations of the oath. We agree with appellant that Pedulla’s answers were somewhat evasive. We note, however, that a witness need not give textbook perfect answers in the colloquy in order to have his competency upheld. Commonwealth v. Mangello; Commonwealth v. Allabaugh, 162 Pa.Super. 490, 493, 58 A.2d 184 (1948). Furthermore, nothing in the colloquy indicates that Pedulla suffered from any sociopathic mental disorder that might prevent him from testifying truthfully, nor did appellant present any other evidence to that effect.

If we were to find this witness incompetent, we would be engrafting upon our existing law a new, overriding requirement as to the competency of a sane adult witness. We would be ignoring the traditional presumption of competency, the presumption that the taking of the oath by such a witness is a sufficient assurance that the oath is understood, regarded as important and can be complied with. Rather, we would be requiring that in every case the trial court probe both the truthfulness of the witness in the past and the present intention of the witness as to the truthfulness of his testimony. This we refuse to do. Rather, we find that under the existing law of competency, the trial eourt was correct in concluding that Pedulla was competent to testify and in leaving the assessment of Pedulla’s credibility to the jury.

In addition to challenging the witness’ competency, appellant argues the testimony of both Pedulla and DeLuca was so unreliable that the jury verdict can not stand because it was based on conjecture. In essence appellant argues that the verdict is not supported by the weight of the evidence. We disagree. Absent a finding of abuse of discretion, the decision of the trial judge as to whether the verdict was against the weight of the evidence is not to be disturbed on appeal. The standard is not whether another court would have decided the case in the same way, but whether the verdict is so contrary to the evidence that justice requires the awarding of a new trial. Commonwealth v. Polk, 347 Pa.Super. 265, 269, 500 A.2d 825, 827 (1985); Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). Where evidence offered is so unreliable and/or so contradictory that it renders any verdict based thereon as pure conjecture, justice requires that the jury not be permitted to return such a verdict. Commonwealth v. Smith, 502 Pa. 600, 467 A.2d 1120 (1983); Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545 (1976).

We cannot say that the testimony of either Pedulla or DeLuca was so unreliable or contradictory that a verdict could not be based on it. Pedulla admittedly testified differently before the grand jury in the same case. At the grand jury hearing, Pedulla maintained that he did not remember how many police officers came into his cell the night in question nor did he remember asking anyone to speed his arraignment. At trial, he testified in detail concerning the actions of the officers in question and the conversations he had with them the night of his arrest. However, such discrepancies between a witness’ trial testimony and prior inconsistent statements do not prevent a jury from making a rational consideration of the credibility of the witness at trial. Commonwealth v. Farquharson; Commonwealth v. Smith; Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982). Moreover, the trial testimony of both Pedulla and DeLuca was consistent and remained so through cross-examination. The court, having concluded that a rational consideration of the evidence was possible, correctly left the weight of the evidence for the jury to determine. Commonwealth v. Levenson, 282 Pa. Super. 406, 422 A.2d 1355 (1980); Commonwealth v. Chuck, 227 Pa.Super. 612, 323 A.2d 123 (1974).

Appellant’s remaining challenges can be dismissed summarily. Appellant argues that the trial court erred by permitting the Commonwealth to use certain diagrams, termed “flow charts,” which tracked the progress of prisoners through police headquarters during processing of the two prisoners in question. The admissibility of a diagram is within the sound discretion of the trial court. Commonwealth v. Ayala, 277 Pa.Super. 363, 419 A.2d 1187 (1980). The trial court, after appellant objected that the chart was not totally representative, carefully instructed the jury regarding the accuracy and shortcomings of the chart. Thus, no prejudice against appellant could have resulted from the Commonwealth’s use of the charts. Commonwealth v. Smith, 313 Pa.Super. 138, 150, 459 A.2d 777, 783 (1983); Commonwealth v. Schroth, 479 Pa. 485, 388 A.2d 1034 (1978).

Neither was the appellant deprived of a fair trial when the prosecutor in his closing argument stated that certain testimony relating to a statement made by the third defendant to Pedulla and DeLuca had remained unchallenged. The prosecutor’s statement did not amount to a comment on the failure of any of the defendants to take the stand. First, the testimony could have been, and as defense counsel contended at trial, was challenged by means other than through the testimony of one of the defendants. Second, a prosecutor may properly refer to the fact that certain evidence remained uncontradicted. Commonwealth v. Fulton, 318 Pa.Super. 470, 481, 465 A.2d 650, 656 (1983); Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974). Third, the trial court properly instructed the jury that the defendants did not have to testify, present any evidence, or challenge any evidence. Again, no prejudice resulted even if the remark were improper. Commonwealth v. Torres, 329 Pa.Super. 58, 68, 477 A.2d 1350, 1354 (1984).

Finally, the trial court committed no error in refusing to grant a mistrial after one of the jurors interrupted the counsel for the third defendant during closing arguments. The court called a recess and questioned the juror closely. Although the juror admitted asking the other jurors if they felt, as he did, that they were being scolded and shouted at by the defense counsel, the juror stated that he did not discuss the case, evidence or witnesses with any other juror. The trial court then acted appropriately by removing that juror and by examining the rest of the jury. The refusal of a new trial on the basis of alleged juror misconduct is within the sound discretion of the trial judge. Commonwealth v. Posavek, 278 Pa.Super. 265, 420 A.2d 532 (1980). No abuse of that discretion is present in this instance.

We affirm the judgment of sentence of appellants Verdón and Trudell.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

While I concur with the result reached and generally speaking, with the fine analysis of Judge Beck with respect to the various issues presented, I am very troubled by the factual scenario of this case and feel compelled to write separately to express my concern.

I find it revolting and a mockery to justice and fairness the District Attorney’s usage of Pedulla and DeLuca as key witnesses in this case, who are alleged perjurers, although not convicted as such, to sustain the Commonwealth’s position in this case.

It is a true commentary that the District Attorney cannot choose the witnesses to criminal activity. Consequently, the choice of witnesses for trial is often very limited. However, it is also true that our system of criminal justice is founded upon notions of fundamental fairness and justice. Such fundamental concepts have led us to structure our criminal system so as to presume an accused innocent until proven guilty; and not just proven guilty but proven guilty beyond reasonable doubt.

In this context, two police officers with years of service have been found guilty of bribery and conspiracy based, in large part, on the testimony of two convicted “hit men” who have admittedly lied about this matter under oath in grand jury proceedings, who have evidenced a total disdain for the oath and who have also evidenced a likelihood to say whatever will best advance their own interests.

To further complicate this scenario, the testimony was elicited by virtue of a bargain with the District Attorney’s office whereby these two key witnesses were to receive favorable treatment as to the potential perjury charges as well as other pending charges. Under this factual scenario, the integrity of our courts as a vehicle in the pursuit of truthfulness has been strained to a point nearing intolerable limits.

It further concerns me that in situations like these, the District Attorney is put in a discretionary position as to keeping the key witnesses competent to testify. As aptly illustrated in the majority opinion, Pedulla and DeLuca would not be statutorily incompetent unless convicted and sentenced for perjury. Yet the District Attorney is charged with making the decision to prosecute the individuals for perjury or whether to forego such prosecution. Hence, the District Attorney is capable of keeping the admitted or suspected perjurer competent to testify and any disqualifying function of the statute is avoided.

I question the wisdom of requiring a conviction and sentencing for perjury to render the individual incompetent under circumstances such as these. Is anything really gained in requiring the Commonwealth to prove formally what is freely admitted by the perjuring witness? If there is something patently unreliable in the testimony of a convicted perjurer, so much so that our law will not allow him to take the witness stand, I see no greater indicia of reliability of the witnesses in this case under the factual situation presented.

The integrity of our courts in promoting truth and justice is compromised by cases such as these. I caution the District Attorneys of this Commonwealth against knowingly avoiding the purpose of the incompetency statute by selectively avoiding prosecutions for perjury against individuals like Pedulla and DeLuca. Unfortunately, I agree that under the current law of this Commonwealth, the witnesses were competent to testify and as there was some corroborating evidence of guilt, I do not believe we would be justified in taking the case from the jury.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    538 A.2d 61
    Margaret STORM, Appellant, v. W. Brian GOLDEN.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1987.
    Filed Feb. 22, 1988.

      Steven E. Krawitz, E. Stroudsburg, for appellant.
    Eugene J. Maginnis, Philadelphia, for appellee.

      Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant, Margaret H. Storm, commenced this action against her former attorney, W. Brian Golden, appellee, by writ of summons on June 3, 1981 followed by a complaint in trespass and assumpsit filed March 31, 1982. In her complaint, appellant claims damages for professional negligence and breach of contract arising from appellee’s representation in a real estate transaction. After procedural delays, the case came to trial before a jury on February 7, 1986. At the close of appellant’s case-in-chief, appellee moved for a compulsory nonsuit (N.T. 2/7/87, pp. 122-23), which was granted (N.T. 2/7/87, p. 143). Appellant filed a timely motion to remove the nonsuit and for new trial, which was denied by Order of January 16, 1987. This timely appeal followed.

The trial court found that in June, 1979, appellant negotiated an oral agreement with Albert Cole to sell a residential home for $48,000. She then retained appellee to draft an installment sales agreement containing the terms of the oral agreement reached by appellant and Cole prior to contacting appellee. Appellee drafted the installment sales agreement which provided appellant was to receive $131 per month from July 1, 1979 until closing on November 1, 1979, and thereafter, $500 per month until the entire contract price of $48,500 plus interest had been paid over the course of a ten-year term, with a clause expressly prohibiting prepayment of any of the installments until July of 1982. The installment sales agreement was executed by appellant and Cole at appellee’s office on June 29, 1979. Prior to closing, appellant delivered to appellee a handwritten affidavit, signed by her on July 5, 1979 before a notary public, attesting that Cole had prepaid “all monthly payments in the entire sum of $38,500” (Defendant’s Exhibit No. 1, 2/7/86). In addition to the real estate transaction, appellant gave Cole between $3,500 and $5,500 as a personal loan.

Sometime in September, 1979, Cole executed a sales agreement prepared by a real estate corporation to sell the house to Wayne and Patricia Smith. Patricia Smith was appellee’s legal secretary. Appellant also executed the sales agreement on October 4, 1979, and on October 18, 1979 appellant signed the deed at appellee’s office in advance of closing because at that time she felt she would be unable to attend the closing. The closing took place on October 30, 1979 with the Smiths, Cole, appellant, appellee and various bank representatives in attendance. At the closing, appellant received a $5,500 payment on the personal loan from Cole. A proceeds check in the amount of $24,-542.76 was made payable to appellant and Cole. Both appellant and Cole endorsed this check and appellant delivered it to Cole; he has not been seen nor heard from since. A second check in the amount of $10,107.12 was forwarded to a savings and loan to satisfy appellant's mortgage. Appellant now blames appellee for what she perceives as his failure to ensure that she received the proceeds of the sale. The trial court specifically found that appellant’s “irrational trust in Albert Cole was founded in Christian faith and fueled by his representation of faith and Biblical interest to such a degree that under his influence ‘she couldn’t think for herself’ ” (Slip Op., Vicar, J., 1/16/87, p. 3).

Appellant claims it was error to consider and enter a compulsory nonsuit in this case because appellee had already entered evidence before his motion for a nonsuit. At trial, appellant testified on her own behalf concerning appellee’s conduct and representation in the real estate transaction.. On cross-examination, appellee admitted into evidence three defense exhibits and examined appellant as to matters concerning the exhibits. Defendant’s Exhibit No. 1 is a handwritten affidavit written and signed by appellant which states she waived her rights in the installment sales agreement and states she was prepaid by Cole in the amount of $38,500 (N.T. 2/7/86, p. 42). Defendant’s Exhibit No. 2 is a treasurer’s check in the amount of $24,542.76 with the bank as payor and the appellant and Cole as payees, representing the proceeds of the house sale to the Smiths (N.T. 2/7/86, p. 50). Lastly, defendant’s Exhibit No. 3 is a check in the amount of $10,107.12 made payable to a savings and loan in order to satisfy appellant’s mortgage. All of these exhibits were intended to show that appellant received the proceeds due her from the transactions involved (N.T. 2/7/86, p. 52).

At the end of appellant’s case, appellee moved for a compulsory nonsuit; the parties argued the motion, which was granted at trial (N.T. 2/7/87, p. 143).

A motion for compulsory nonsuit allows a defendant to test the sufficiency of a plaintiff’s evidence. Francioni v. Gibsonia Truck Corporation, 472 Pa. 362, 372 A.2d 736 (1977). A compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any conflict in the evidence in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 506 A.2d 862 (1986); Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

Pennsylvania Rule of Civil Procedure 230.1, Compulsory Nonsuit at Trial, provides:

In a case involving only one defendant, at the close of plaintiff’s case on liability and before any evidence on behalf of the defendant has been introduced, the court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief. If the motion is not granted, the trial shall proceed. If the motion is granted, the plaintiff may file a written motion for the removal of the nonsuit.

(Emphasis added.) Our Supreme Court has strictly enforced the rule that a nonsuit may not be granted where a defendant has offered evidence either during the plaintiff’s case, Highland Tank & Manufacturing Company v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966); Cantanzaro v. Pennsylvania Railroad Company, 230 Pa. 305, 79 A. 624 (1911), or after it. Atlantic Richfield Company v. Razum ic, 480 Pa. 366, 390 A.2d 736 (1978); F. W. Wise Company v. Beech Creek Railroad Company, 437 Pa. 389, 263 A.2d 313 (1970); Jordan v. Sun Life Assurance Company of Canada, 366 Pa. 495, 77 A.2d 631 (1951).

Here, appellee offered the defense exhibits during appellant’s case and the trial court had the exhibits before it when it evaluated the motion for compulsory nonsuit. The express language of Rule 230.1 and the above cited authorities compel us to conclude the trial court was not empowered to enter a nonsuit because appellee had offered evidence.

However, even though it was procedurally improper for the trial court to enter a nonsuit, we find that as a matter of law the error was harmless. See Atlantic Rich-field Company, supra (entertaining a harmless error argument with respect to improper entry of a nonsuit); Jordan, supra (ruling that an improperly entered nonsuit could not result in a new trial when to do so would be a vain act as a matter of law); and Pushnik v. Winky’s Drive In Restaurants, 242 Pa.Super. 323, 363 A.2d 1291 (1976) (concluding improperly entered nonsuit would be affirmed as harmless error where defendant could not be liable as a matter of law). We reach this determination upon review of the basis of the trial court's entering nonsuit and in disposing of appellant’s second issue on appeal dealing with whether expert testimony is required as a matter of law in order to establish a prima facie case of legal malpractice in Pennsylvania.

There are three essential elements which must be established in order to bring an action for legal malpractice:

1) the employment of the attorney or other basis for duty;

2) the failure of the attorney to exercise ordinary skill and knowledge; and 3) that such negligence was the proximate cause of damage to the plaintiff. Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10 (1986), allocatur granted, 514 Pa. 643, 523 A.2d 1132 (1987); ei bon ee baya ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986); Schenkel v. Monheit, 266 Pa.Super. 396, 399, 405 A.2d 493, 494 (1979) (establishing the elements in Pennsylvania). The trial court concluded that because appellant offered no competent evidence in the form of expert testimony as to the proper standard of care under which appellee should have conducted himself and in what way appellee’s actions deviated from that standard, the second element was not met, therefore, as a matter of law appellant failed to meet her burden of proof, warranting entry of a nonsuit.

Whether expert evidence is necessary or required in a legal malpractice case to establish an attorney’s breach of his duty of care is a question of first impression in Pennsylvania. However, we are not without guidance in this area. As a general rule, our Supreme Court has held that “expert testimony is necessary to establish negligent practice in any profession.” Powell v. Risser, 375 Pa. 60, 65, 99 A.2d 454, 456 (1953); Bierstein v. Whitman, 360 Pa. 537, 541, 62 A.2d 843, 845 (1949). Although such a general statement is not a concrete pronouncement as to any one profession, it exhibits a recognition that when dealing with the higher standards attributed to a professional in any field a layperson’s views cannot take priority without guidance as to the acceptable practice in which the professional must operate. The standard of care in a legal malpractice case is whether the attorney has exercised ordinary skill and knowledge related to common professional practice, ei bon ee baya ghananee, supra; Hoyer v. Frazee, 323 Pa.Super. 421, 470 A.2d 990 (1984). By its very nature, the specific standard of care attributed to legal practioners necessitates an expert witness’ explanation where a jury sits as the fact finder.

We recognize that, “[i]f all the primary facts can be accurately described to a jury and if the jury is as capable of comprehending and understanding such facts and drawing correct conclusions from them as are witnesses possessed of special training, experience or observation, then there is no need for the testimony of an expert.” Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967). Expert testimony becomes necessary when the subject matter of the inquiry is one involving special skills and training not common to the ordinary lay person. Reardon, supra; Hayes Creek Country Club, Inc. v. Central Penn Quarry Stripping & Construction Company, 407 Pa. 464, 181 A.2d 301 (1962); Pirches v. General Accident Insurance Company, 354 Pa.Super. 303, 511 A.2d 1349 (1986). The requirement of expert testimony has been applied to physi cians, see e.g. Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970), dentists, see e.g. Lambert, supra, and architects, see National Cash Register, supra. We hold the requirement applies equally to legal malpractice claims under the circumstances presented here.

We expressly limit our holding to the present circumstances in order to allow flexibility as to when expert evidence is needed. Legal malpractice claims run a wide gamut of circumstances from clear cut claims of a breach of an attorney’s duty for allowing the statute of limitations to run against the former client’s cause of action to the complex determination required of a claim of breach of duty involving the attorney’s choice of trial tactics in which a layperson’s judgment obviously requires guidance. Between these two extremes lie a myriad number of legal malpractice actions for which the necessity of expert evidence to establish the attorney’s duty and breach thereof will not be readily evident without careful examination of the factual circumstances upon which they arise. Generally, the determination of whether expert evidence is required or not will turn on whether the issue of negligence in the particular case is one which is sufficiently clear so as to be determinable by laypersons or concluded as a matter of law, or whether the alleged breach of duty involves too complex a legal issue so as to warrant explication by expert evidence. Cf. Chandler, supra, 438 Pa. at 451 n.*, 265 A.2d at 796 n.* (“The only exception to the requirement that expert testimony must be produced is where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons.”); Burns v. City of Philadelphia, 350 Pa.Super. 615, 624, 504 A.2d 1321, 1325 (1986) (same).

Here, the underlying question of whether legal malpractice occurred revolves around a lawyer’s duty and responsibility in connection with representing a client in a real estate transaction. We do not agree with appellant’s assertions that the sale of real estate is an elementary and non-technical transaction which requires only simple common sense (appellant’s brief at 21). At issue is not the simplicity of the transaction but the duty and degree of care of the attorney. Whether an attorney failed to exercise a reasonable degree of care and skill related to common professional practice in handling a real estate transaction is a question of fact outside the normal range of the ordinary experience of laypersons.

As to appellant’s argument that her contract claim in assumpsit must be treated separately from her negligence claim in trespass and that expert testimony is not necessary to sustain the burden in a breach of contract action, we find our decision in Hoyer, supra, controlling. Appellant’s breach of contract count does not allege that appellee failed to follow specific instructions nor that a breach of a specific provision of the contract occurred. Instead, as in Hoyer, we find appellant’s assumpsit claim is not a true contract cause of action but sounds in negligence by alleging appellee failed to exercise the appropriate standard of care. See Duke & Company v. Anderson, 275 Pa.Super. 65, 418 A.2d 613 (1980) (defining the different basis for legal malpractice actions). Consequently, expert testimony is needed for both claims.

As already stated, appellant’s failure to produce an expert witness as to the standard of care under which appellee should have conducted himself and as to any deviation from that standard that may have occurred makes appellant’s case defective as a matter of law and the procedurally improper entry of a nonsuit harmless error. Our rules of civil procedure place an obligation upon a party to identify expert witnesses and the substance of their facts and opinions during discovery when requests for such information are made. Pennsylvania Rule of Civil Procedure 4003.5, governing discovery of expert testimony, provides in relevant part:

(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
(1) A party may through interrogatories require
(a) any party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.
(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

(Emphasis added.) Rule 4019, Sanctions, restates the rule in subsection (b), above, as follows:

(i) A witness whose identity has not been revealed as provided in this chapter shall not be permitted at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

Pa.R.C.P. 4019(i) (emphasis added). “Thus, the rule is one of mandatory preclusion at trial of the testimony of undisclosed expert witnesses in the absence of extenuating circumstances.” Kaminski v. Employers Mutual Casualty Company, 338 Pa.Super. 400, 407, 487 A.2d 1340, 1344 (1985).

Appellee propounded written interrogatories which clearly requested, inter alia, the names of the expert witnesses who were expected to testify on appellee’s behalf and the subject matter involved. See Defendant’s Interrogatories Nos. 12-13. In response, appellant answered: “Not known to me at this time.” See Plaintiff’s Answer to Defendant’s Interrogatory No. 12. A review of the record discloses appellant made no further attempt to supplement this response, pursuant to Pa.R.C.P. 4007.4, prior to trial. Because a request of record was made in this case and since a tactical decision not to present expert testimony on the part of appellant is not an “extenuating circumstance” beyond the control of appellant, we find appellant would be precluded from presenting the required expert testimony in any future trial. Therefore, a new trial is not warranted by the improper entry of a nonsuit in this case. Appellee should not be penalized by the burden of a new trial after properly applying the rules of civil procedure.

Accordingly, Qrder affirmed.

Order affirmed.

      . Although these cases are interpreting the former statute authorizing entry of a compulsory nonsuit, Act of March 11, 1875, P.L. 6, § 1, as amended, 12 P.S. § 645, repealed by Act of April 28, 1978, P.L. 202, No. 53, § 1, effective June 27, 1980 by operation of § 4(b), Pennsylvania Rule of Civil Procedure 230.1, adopted October 19, 1983, effective January 1, 1984, is adapted from the former statute and, as the 1983 Explanatory Comment explains, “for the most part continues the prior practice." Therefore, prior case law interpreting the repealed statute retains precedential value in interpreting Rule 230.1.

      . See Lambert v. Soltis, 422 Pa. 304, 308, 221 A.2d 173, 176 (1966) (quoting Robinson, infra); Robinson v. Wirts, 387 Pa. 291, 297, 127 A.2d 706, 709 (1956) (quoting Bierstein, supra ); National Cash Register Company v. Haak, 233 Pa.Super. 562, 335 A.2d 407 (1975).

      . This has been the rule in federal courts applying Pennsylvania law since the United States Court of Appeals for the Third Circuit’s decision in Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474, 480 (3d Cir.1979), where the Third Circuit affirmed a district court’s involuntary dismissal of a legal malpractice action after concluding that expert testimony was necessary for legal malpractice claims in Pennsylvania. See e.g., Gans v. Mundy, 762 F.2d 338 (3d Cir.1985).

      . For a collection and review of state and federal cases in which courts have considered the admissibility or necessity of expert evidence as to standards of practice and negligence in malpractice actions against attorneys, see Annot., 14 A.L.R. 4th 170 (1982).

      . Due to our disposition of this case on the issue of expert testimony, we need not address appellant's remaining claim on appeal.


author: MONTEMURO, Judge:

text:
    538 A.2d 66
    In the Interest of Robert M. HYDUKE. Appeal of Robert M. HYDUKE.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1987.
    Filed Feb. 16, 1988.

      Ken Gormley, Pittsburgh, for appellant.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

Robert M. Hyduke, a seventeen (17) year old juvenile, appeals from the judgment of sentence of the Court of Common Pleas of Westmoreland County entered on March 25, 1987. Appellant was adjudicated delinquent on two (2) counts of homicide by vehicle and placed on probation for a period of eighteen (18) months. In addition, the court directed appellant to: (1) pay the costs of the proceedings; (2) refrain from all violations of the law; (3) comply with the regulations of the Westmoreland County Juvenile Service Center; (4) perform seventy (70) hours of community service; (5) enter and complete an alcohol safe driving program, and; (6) pay a fine of $500 within a period of five (5) months. We affirm.

The events of this tragic story began on June 21, 1986. Appellant, then seventeen (17), met his friend Brian Aikins at about 10 p.m. They went in separate vehicles to a party located in Kingston, Pennsylvania. During appellant’s one hour stay at the party he consumed two cups of beer, before beginning the drive home. Aikins left the party at the same time, taking a fifteen (15) year old girl named Adrienne Angelí with him in his vehicle. Appellant pulled out from the party first, but Aikins’ vehicle passed him shortly after his departure. When appellant arrived at the stop-light at Route 981, he observed the Aikins vehicle stopped in a parking lot. Appellant pulled into the lot and found Aikins standing outside his vehicle with Adrienne Angelí still inside. Aikins informed appellant to go on ahead and that he would see him later. Appellant left the parking lot and traveled North on Route 981, a two lane asphalt road, towards his home in New Alexandria. The weather conditions were clear and dry and the posted speed limit on Route 981 was fifty five (55) miles per hour. Appellant was unable to recall the events following the time he began to travel North on route 981, but the trial court, through the aid of accident reconstruction experts and various other witnesses, formulated the following scenario:

Approximately one and one-half miles before reaching New Alexandria, Route 981, which is generally a level and straight road, begins a gradual right-hand curve and a slight down grade. The juvenile/appellant lost control of his automobile, crossed the center lane and into the southbound lane of traffic. The juvenile crossed over the southbound lane onto the berm and his car turned sideways colliding with a utility pole broadside. The distance when the juvenile/appellant’s vehicle entered the berm until it struck the utility pole broadside was 220 feet. The juvenile’s automobile sheared off the top of the utility pole and then his car rotated counter-clockwise and then traveled approximately 153 feet into a four feet deep fifteen feet wide gully. When the car hit the gully it catapulted into the air and came to rest on the side of the road at a distance of 168 feet from the utility pole. Upon the impact with the gully and the impact with the ground, the juvenile was thrown out of the car window. A copy of the Pennsylvania State Police Officer’s drawing of the scene that was admitted into evidence is attached to this opinion to clarify the various vehicles involved and the relevant points.
A truck driven by Mario Venzin with his family was traveling South on Route 981. Venzin saw the juvenile/appellant sliding towards his truck in the south lane. Venzin swerved into the northbound lane narrowly missing the juvenile defendant and then returned his truck to the southbound lane. An automobile driven by Timothy Shearer was behind the Venzin truck in the southbound lane. Shearer was traveling approximately forty miles per hour. When the juvenile/appellant sheared off the utility pole, the pole fell into and across the highway. Shearer had no time to react before his car hit the utility pole, and upon striking the same he was carried along the utility pole into the northbound lane where his vehicle came to a rest.
Brian Aikins, who was following the juvenile/appellant operating his vehicle in a northerly direction (the same direction as the juvenile/appellant) applied his brakes and left 128 feet of skid marks up to the point where the Aikins’ vehicle struck Shearer’s vehicle. As a result of the collision between the Shearer and Aikins’ vehicles, both Brian Aikins and Adrienne Angelí were killed.

Appellant was charged with two (2) counts of homicide by vehicle, based on citations issued him for failure to drive on the right side of the roadway, and for failure to drive at a safe speed. The trial court adjudicated appellant delinquent on both counts of homicide by vehicle and sentenced him to serve a period of eighteen (18) months probation. This timely appeal followed the denial of appellant’s post-trial motions.

Appellant raises five (5) contentions on appeal:

I. The trial court erred in finding that the Commonwealth established a violation of the Vehicle Code.

II. The trial court erred in finding that the Commonwealth established culpability on the part of the defendant.

III. The trial court erred in finding that the defendant’s actions were the legal cause of the deaths.

IV. The homicide by vehicle statute is unconstitutional as applied to defendant in this case, without proof of reckless or criminally negligent conduct.

V. The trial court erred by failing to admit the testimony of proffered witnesses to further demonstrate the inherently dangerous condition of the road.

Under the Vehicle Code, the offense of homicide by vehicle is defined as follows:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3731 (relating to driving under the influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

75 Pa.C.S.A. § 3732, as amended 1982, December 15, P.L. 1268, No. 289, Section 10, effective in thirty days.

There are two violations underlying the homicide by vehicle charge in this case. The first of these violations is of 75 Pa.C.S.A. § 3301(a), which provides in pertinent part:

(a) General rule — Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway except as follows ...

Appellant was also charged with a violation of 75 Pa.C. S.A. § 3361, which provides:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or a railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

In order to sustain a conviction or an adjudication of delinquency for homicide by vehicle, the Commonwealth must establish (1) that the defendant had deviated from the standard of care established by the underlying traffic regulation which had allegedly been violated, and (2) that the defendant’s violation of the regulation caused the victim’s death. Commonwealth v. Jumper, 511 Pa. 446, 449, 515 A.2d 540, 541 (1986); Commonwealth v. Field, 490 Pa. 519, 525, 417 A.2d 160, 163 (1980). Recently, our supreme court definitively answered the question of the level of culpability which the Commonwealth is required to establish in a homicide by vehicle case. In Commonwealth v. Heck, 517 Pa.-,-, 535 A.2d 575, 577 (1987), the Court held that a conviction for homicide by vehicle may not stand on a finding of ordinary negligence. In so holding, the court instructed that the minimum level of culpability required to sustain a conviction for homicide by vehicle is criminal negligence as defined in 18 Pa.C.S.A. § 302(b)(4), which provides:

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

Id., 517 Pa. at-, 535 A.2d at 579-80.

Consequently, the Heck case makes it clear that the Commonwealth must prove (1) that the defendant’s conduct involved a gross deviation from the standard of care established by the underlying traffic regulation, taking into account the nature and intent of the defendant’s conduct and the circumstances known to him, and (2) that the defendant’s violation of the regulation caused the victim’s death.

Appellant’s first claim is that the Commonwealth failed to prove that he violated the Vehicle Code. More specifically, appellant asserts that the evidence was insufficient to establish that he had crossed the center line or that he had failed to drive at a safe speed, in violation of 75 Pa.C.S.A. §§ 3301(a) and 3361 respectively. After hearing testimony from accident reconstruction experts on behalf of both the Commonwealth and the appellant, the trial court found that appellant was traveling at approximately eighty five (85) miles per hour when he lost control of his vehicle and crossed into the southbound lane, eventually shearing off the utility pole which fell across the road and caused the fatal Shearer-Aikins collision. Contrary to appellant’s assertion, we conclude that these findings are more than sufficient to establish both Vehicle Code Violations. See Commonwealth v. Eichelberger, 364 Pa.Super. 425, 528 A.2d 230 (1987) (determination by fact finder that vehicle was unexplainably in the wrong lane sufficient to establish underlying offense for homicide by vehicle charge).

We also reject appellant’s argument that the Commonwealth failed to establish the requisite degree of culpability in this case. Appellant’s conduct, namely, traveling at approximately eighty five (85) miles an hour losing control of his vehicle and crossing the center line, clearly constitutes a gross deviation from the standard of care which a reasonably prudent person would exercise under like circumstances. Appellant knew or should have known that his actions posed a significant threat of death or serious bodily injury to others. His conduct clearly satisfies a finding of at least criminal negligence, if not recklessness, as required by Heck, supra.

Similarly, with respect to appellant’s claim that his actions were not the legal cause of the victims’ deaths, we find no merit. The causal analysis in a homicide by vehicle case focuses on whether death was a probable consequence of the defendant’s actions. Jumper, supra, 511 Pa. at 449, 515 A.2d at 541. In Commonwealth v. Kostra, 349 Pa.Super. 89, 502 A.2d 1287 (1985), we stated:

The Commonwealth must prove that the death occurred as a result of injuries received in the incident or of a chain of events stemming from the incident. Causation is an issue of fact for the jury. A defendant’s actions are the legal cause of death if they are a direct and substantial factor in bringing it about. So long as a defendant’s actions are a direct and substantial factor in bringing about death, legal responsibility may be found. A defendant cannot escape criminal liability for homicide if his act starts an unbroken chain of causation which leads to death.

Id,., 349 Pa.Superior Ct. 93, 502 A.2d at 1289 (citations omitted).

In the instant case appellant operated his vehicle at an unsafe speed such that he was unable to successfully negotiate the curve or bring his vehicle to a stop. Appellant’s vehicle proceeded across the highway and felled a utility pole before eventually coming to a crashing halt some one hundred and fifty (150) feet later. The utility pole landed directly in front of the Shearer vehicle, which was traveling southbound, directing the vehicle into the northbound lane where it was struck by the oncoming Aikins vehicle. The result of this unbroken chain of events, initiated by appellant’s Vehicle Code violations, was the death of both Brian Aikins and Adrienne Angelí. We find that the causal nexus between appellant’s conduct and the victims’ deaths is not so tenuous as to absolve him from criminal responsibility.

Appellant also claims that the homicide by vehicle statute as applied to him is violative of both the United States and Pennsylvania Constitutions without a showing of criminal negligence or recklessness on his part. In light of our supreme court’s recent decision in Heck, supra, and our conclusion that appellant’s conduct rose to the level of criminal negligence, we find no merit in appellant’s contention.

The final challenge raised by appellant is that the trial court erroneously excluded the testimony of several lay witnesses, who would have testified that numerous accidents had occurred at the same curve where appellant lost control of his vehicle. As a general rule matters relating to the admissibility of evidence are controlled by the trial court’s discretion and an appellate court will not reverse the trial court’s ruling absent a clear abuse of discretion. See Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982). Although appellant contends that specific instances of other accidents on the same stretch of roadway demonstrates that the corner in question is inherently dangerous, the trial court concluded that the fact that other accidents had occurred on this particular stretch of roadway was not probative of whether appellant exercised the requisite standard of care in this instance. Moreover, the trial court was apparently influenced by the Commonwealth’s argument that such testimony would open up collateral matters, such as the weather conditions at the time of the other accidents and the conduct of the other drivers, which were not pertinent to the present case. We find that the trial court did not abuse its discretion in excluding the proffered testimony.

Accordingly, the judgment of sentence is affirmed.

      . 75 Pa.C.S.A. § 3732.

      . 75 Pa.C.S.A. § 3301(a).

      . 75 Pa.C.S.A. § 3361.

      . We note with disapproval that appellant has exceeded the allowable fifty (50) page limit on the length of appellate briefs without court approval. See Pa.R.A.P. 2135.

      . The record refiects that the Commonwealth’s expert testified that the appellant had been traveling at a minimum of seventy seven (77) to eighty five (85) miles per hour. Although there was conflicting evidence presented by the defense expert, the trial court apparently resolved the issue of credibility in favor of the Commonwealth, which it was free to do.

      . We reject appellant’s contention that Brian Aikins’ failure to travel at a safe speed should be viewed as a superseding intervening cause of the deaths. The short response to this argument is that "contributory negligence of the victim is not a defense to a criminal charge of homicide by vehicle if the defendant’s actions were a substantial factor in causing the death.” Commonwealth v. Heck, 341 Pa.Super. 183, 213, 491 A.2d 212, 227 (1985).


author: BECK, Judge:

text:
    538 A.2d 71
    COMMONWEALTH of Pennsylvania v. ONE 1985 CADILLAC SEVILLE. Appeal of Shiela LAMPKIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed Feb. 26, 1988.

      Richard R. Fink, Levittown, for appellant.

      Stephen B. Harris, Assistant District Attorney, Warring-ton, for Com., appellee.
    Before CAVANAUGH, BECK and HESTER, JJ.
   BECK, Judge:

The issue in this forfeiture action is the standing of the appellant to challenge the forfeiture of the subject vehicle by raising the “innocent ownership” defense.

Appellant Sheila Lampkin appeals from an order granting the Commonwealth’s petition for forfeiture and denying her petition for return of a 1985 Cadillac Seville. We affirm.

The Cadillac was seized when Frank Long, Lampkin’s brother, was operating the Cadillac while conducting a drug transaction with a passenger therein. Long was charged with and later convicted of possession with intent to deliver cocaine and heroin, which were found in and around the Cadillac at the time of seizure. Lampkin filed a petition seeking return of the Cadillac which she claims to own. The Commonwealth responded by filing a petition for forfeiture, contending that the Cadillac was “derivative contraband” subject to forfeiture under the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.Cons.Stat.Ann. §§ 780-101 to 780-144 (1977 & Supp.1987-88) (the “Act”).

At the forfeiture hearing, Lampkin testified that she was Long’s older sister, that she was the owner of the Cadillac, and that she loaned the vehicle to Long from time to time. She produced documents of title and registration bearing her name to establish that she owned the Cadillac. Lamp-kin also testified that she had paid cash for the car, and that although Long had accompanied her to the dealership when she purchased the car, he went with her only for the limited purpose of checking the car’s mechanical condition.

Lampkin further testified that although she lent the Cadillac to her brother on occasion, she was unaware that the vehicle.was being used for any unlawful purpose. It was established that she and her brother lived some distance apart and that in order to borrow the Cadillac, Long had to pick it up at her home. It was also established that Long performed routine maintenance work on the Cadillac.

The trial court determined that the Commonwealth had satisfied its burden of proof in showing that the Cadillac was used by Long for unlawful purposes and, therefore, was “derivative contraband” subject to forfeiture under the Act. Id. § 780-128. The trial court also rejected Lamp-kin’s contention that under Section 780-128 of the Act, she was entitled to return of the Cadillac because she owned it and was unaware of her brother’s unlawful use thereof. In support of this conclusion, the court stated that it simply did not believe Lampkin’s testimony regarding her acquisition and ownership of the car. The court noted that the car was purchased for approximately $30,000 in cash and that the record revealed no source of funds from which Lampkin could have obtained that large a sum of money to use in purchasing the car. The court emphasized that Lampkin is a divorced mother who is the sole support of three children and that there was no evidence of any inheritance or other windfall that could have provided the funds for the purchase of the Cadillac.

In addition, the court pointed out that although the documents of title were in Lampkin’s name, Lampkin had produced no documentary evidence showing withdrawals of bank deposits, conversion of securities or any other source of the cash allegedly used by Lampkin to buy the car. Concluding that Frank Long had actually purchased the car and had simply titled it in his sister’s name to insulate it from forfeiture, the court granted the Commonwealth’s petition for forfeiture and denied Lampkin’s petition for return.

Lampkin presents two issues for our review. First, she asserts that the trial court erred by admitting into evidence the testimony of a police officer regarding the contents of a report of a chemical analysis of the substances seized from the Cadillac at the time of Long’s arrest and the seizure of the vehicle. Lampkin contends that this testimony was inadmissible hearsay. Second, Lampkin contends that the trial court’s grant of forfeiture to the Commonwealth was improper because she owned the Cadillac and Long’s unlawful use of the vehicle was without Lampkin’s knowledge or consent.

As to Lampkin’s first issue, regarding the admissibility of the police officer’s testimony, we hold that Lampkin failed to preserve this issue in the court below and that it is, therefore, waived on appeal. Although Lampkin objected to the admission of this evidence at the forfeiture hearing, no grounds for the objection were given at that time and Lampkin did not raise her objection to the testimony in her post-hearing brief to the trial court, which was submitted prior to the trial court’s rendering its decision. Thus, Lampkin failed to give the trial court any opportunity to correct this alleged error and cannot now raise this objection on appeal. Pa.R.A.P. 302(a).

As to Lampkin’s second allegation of error, regarding the trial court’s determination that she was not entitled to a return of the vehicle as the innocent owner thereof, we begin with a brief overview of the law of forfeiture applicable to this case.

Property which is found to be contraband may be subject to forfeiture. Commonwealth v. Landy, 240 Pa. Super. 458, 463, 362 A.2d 999, 1001 (1976). Such property may be classified as contraband per se or derivative contraband. Contraband per se is property which is itself illegal, i.e. has no legal use. Property is derivative contraband where it is, of itself, legal, i.e. amenable to legal use, but where it has actually been used in the perpetration of an unlawful act. Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985). As we stated in Commonwealth v. Fassnacht, 246 Pa.Super. 42, 46, 369 A.2d 800, 802 (1977), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 257 (1978), “[hjeroin and ‘moonshine’ whiskey are examples of contraband per se____ An example of derivative contraband is a truck used to transport illicit goods.” Thus, the Cadillac in this case would clearly be classified as derivative contraband if it was used for unlawful purposes.

Since this case specifically involves criminal activity in connection with controlled substances, it is controlled by the provisions of the Controlled Substance, Drug, Device and Cosmetic Act, supra. Section 780-128 of the Act provides in pertinent part:

(a) The following shall be subject to forfeiture to the Commonwealth and no property right shall exist in them:

(1) All drug paraphernalia, controlled substances or other drugs which have been manufactured, distributed, dispensed, or acquired in violation of this act.

(4) All conveyances, including aircraft, vehicles, or vessels, which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in clause (1) or (2) except that:

(ii) no conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent.

35 Pa.Cons.Stat.Ann. § 780-128(a)(l) & (4).

The Act further provides that in a forfeiture proceeding, the Commonwealth has the initial burden of producing evidence that the property sought to be forfeited was unlawfully used or possessed, i.e. that it was contraband. Id. § 780-129(e). Moreover, it is well established by case law that in a forfeiture proceeding, the Commonwealth must demonstrate by a preponderance of the evidence that the property seized was contraband. Estate of Peetros by Peetros v. County Detectives and District Attorney’s Office, 341 Pa.Super. 558, 492 A.2d 6 (1985); Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 468 A.2d 1125 (1983).

Once the Commonwealth has sustained this burden of proof, the burden shifts to the claimant seeking return of the property. Section 780-128(a)(4)(ii) clearly states that the owner must establish that an unlawful use of the conveyance by someone other than the owner was without the owner’s knowledge or consent. Section 780-129 further states that once the Commonwealth has shown unlawful use or possession of the property,

... the burden shall be upon the claimant to show:

(1) That the claimant is the owner of the property or the holder of a chattel mortgage or contract of conditional sale thereon;

(2) That the claimant lawfully acquired the property;

(3) That it was not unlawfully used or possessed by him;

(4) In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent.

35 Pa.Cons.Stat.Ann. § 780-129(e)(l)-(4). Thus, where a conveyance has been used by a person other than the owner thereof for unlawful purposes and has been seized by law enforcement officials pursuant to the Act, the owner must establish the elements listed above to secure return of the conveyance.

In the instant case, the Cadillac became subject to forfeiture as derivative contraband when it was shown by the Commonwealth to have been used by Long in the commission of a drug transaction prohibited by the Act. Subsequent to this showing by the Commonwealth that the Cadillac was subject to forfeiture, the burden fell to appellant to prove that she owned and lawfully acquired the Cadillac. If appellant succeeded in establishing ownership, she then would have to show that Long’s unlawful use thereof was without appellant’s knowledge or consent, i.e. that she was the “innocent owner” of the Cadillac.

We concur in the trial court’s conclusion that appellant did not carry the burden of showing by a preponderance of the evidence that she owned the Cadillac; therefore, we find she did not have standing to challenge the forfeiture by raising the innocent owner’s defense.

The trial court appears to have decided in favor of forfeiture not only because the court was, as it stated, “not certain just who the owner of this vehicle is,” but also because the court was simply not convinced by appellant’s testimony regarding her innocence in acquiring and possessing the vehicle. In other words, the trial court appears to have remained unconvinced that appellant was totally without knowledge of Long’s unlawful activities relating to the Cadillac, as the statute requires.

We, on the other hand, find that in the instant case, the issue is not whether appellant has sustained her burden of proving “innocent ownership”. Rather, we are faced with the threshold question of whether appellant has sustained her burden of proving that she is the owner of the car at all so as to give her standing to raise the “innocent owner” defense.

This question of standing to challenge a forfeiture for purposes of raising the innocent owner defense presents an issue of first impression in this state. We note that the Pennsylvania forfeiture provision was intentionally patterned after its federal counterpart in the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 881(a)(4) (1981). Commonwealth v. One 1979 Lincoln Four Door Sedan, 344 Pa.Super. 171, 496 A.2d 397 (1985). Therefore, we have looked to those cases decided under the federal statute that have considered the issue of what constitutes ownership for purposes of raising an “innocent owner” defense.

In the federal cases which have reached the question of whether the individual seeking return of a vehicle was, in fact, the owner, the issue has been resolved based on a factual determination by the Court. See U.S. v. One Brown 1978 Mercedes Benz, 657 F.Supp. 316 (E.D.Mo.1987); U.S. v. One 1981 Datsun 280 ZX, 563 F.Supp. 470 (E.D.Pa.1983). For example, in U.S. v. One 1981 Datsun 280 ZX, supra, the court was called upon to evaluate a claim of ownership similar to that in the instant case. There, a father was held to lack standing to challenge the forfeiture of a car allegedly used by his son to facilitate the attempted purchase of a controlled substance. The court found the father’s claim of ownership to be without merit despite the fact that the vehicle’s title and insurance were in the father’s name. The court took into consideration the fact that there was confusion surrounding who had paid for the car. Moreover, the court noted that despite his limited income, the father had purchased another car shortly after his purchase of the Datsun. In arriving at its conclusion that the father was not, in fact, the owner, the court stated that “[an] inference that the car was not intended for claimant’s use can be drawn from the facts.” Id. at 475.

We believe that a similar inference was properly drawn by the trial court from the facts in the present case. Based on the evidence before it, the trial court must make the initial determination of ownership. It is well settled that “it is within the province of the trial judge, sitting without a jury, to judge the credibility of the witnesses and to weigh their testimony. On appeal, it is not the duty of the appellate court to find the facts, but to determine whether there is evidence in the record to justify the trial court’s findings of fact.” Allegheny County v. Monzo, 509 Pa. 26, 35, 500 A.2d 1096, 1101 (1985).

After careful review of the record in this case, we agree with the trial court’s determination that Sheila Lampkin has failed to establish ownership of the Cadillac. Lampkin failed to satisfy her burden of proving that in fact the Cadillac was hers, lawfully purchased with her own funds for her own lawful use. Therefore, she lacks standing to assert the defense of “innocent ownership.”

Accordingly, the order of the Court of Common Pleas granting the Commonwealth’s petition for forfeiture and denying Lampkin’s petition for return is affirmed.


author: WIEAND, Judge:

text:
    538 A.2d 502
    Janet S. HOUSTON, Virginia W. Kelso, William Fraker and Arlene M. Fraker v. TEXACO, INC., H.J. Tanner, Inc., Oliver F. Martin, Evelyn Y. Martin and Jay H. Shannon and Arlene Shannon, t/d/b/a Shannon’s Service Station. Appeal of H.J. TANNER, INC. Janet S. HOUSTON, Virginia W. Kelso, William L. Fraker and Arlene M. Fraker, Appellants, v. TEXACO, INC., H.J. Tanner, Inc., Oliver F. Martin, Evelyn Y. Martin, Jay H. Shannon and Arlene Shannon, t/d/b/a Shannon’s Service Station, Appellees. Janet S. HOUSTON, Virginia W. Kelso, William L. Fraker and Arlene M. Fraker v. TEXACO, INC., H.J. Tanner, Inc., Oliver F. Martin, Evelyn Y. Martin and Jay H. Shannon and Arlene Shannon, t/d/b/a Shannon’s Service Station. Appeal of Jay H. SHANNON and Arlene Shannon, t/d/b/a Shannon’s Service Station.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1986.
    Filed Jan. 11, 1988.
    Reargument Denied March 2, 1988.

      Wayne F. Shade, Carlisle, for Houston.
    William A. Addams, Carlisle, for Shannon.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   WIEAND, Judge:

The principal issues in this appeal are whether damages may be recovered for (1) emotional distress and (2) inconvenience and discomfort resulting from the contamination of well water negligently allowed to leak from the storage system of a neighboring gasoline service station. We conclude that recovery may be had for inconvenience and discomfort but that there can be no recovery for emotional distress in the absence of attending physical injury. Because the plaintiffs failed to plead a claim for inconvenience and discomfort, however, the jury should not have been permitted, over objection, to consider such a claim.

Jay and Arlene Shannon were the operators of Shannon’s Service Station in Centerville, Penn Township, Cumberland County. The gasoline dispensing system at the service station was owned by H J. Tanner, Inc. (Tanner), a corporation engaged in the business of buying gasoline at wholesale and reselling the same to service station operators. Pursuant to agreement, Tanner was required to maintain and keep in repair the gasoline tanks and equipment which the Shannons used at their service station.

In August, 1981, petroleum distillates were discovered in the well water of Janet Houston, a resident of Centerville, whose home was situated across the street from Shannon’s Service Station. At the request of the Pennsylvania Department of Environmental Resources, Tanner tested the station’s gasoline dispensing system and discovered that it contained a leak. Tanner repaired the defective portion of the system and conducted an air pressure test. The results of the test suggested that the repairs had been properly made and that the system contained no other leaks. Between June and August of 1982, however, gasoline derivatives were again discovered in Houston’s well. They were also discovered in the wells of William and Arlene Fraker and Virginia Kelso, who also were neighbors. Within a month of the last discovery, Shannon reported to Tanner that one of the underground tanks of gasoline had leaked in excess of 500 gallons of gasoline during a forty-eight hour period. Tanner immediately pumped the remaining gasoline out of the leaking tank and filled the tank with concrete.

On June 2, 1983, Houston, Kelso and the Frakers filed a complaint in trespass against Tanner and the Shannons, alleging that each defendant had been negligent in failing to detect and repair the leaking storage tank. In their complaint, the plaintiffs sought recovery for the cost of water purification equipment, damage sustained to their water pumps and septic systems, increased electric bills, diminution in the value of their homes, and severe emotional distress. With respect to their alleged emotional distress, they asked to be compensated by both compensatory and punitive damages.

Thereafter, Tanner paid all costs incurred by the plaintiffs in installing filtration systems in their homes. When these systems proved unsuccessful, Tanner, at its own expense, furnished each plaintiff with a completely new well. These wells have remained free of gasoline contamination and continue to supply plaintiffs with potable water.

Plaintiffs’ claims for special damages, therefore, were abandoned. They proceeded to trial solely upon the claims that defendants had negligently caused them emotional distress. In support thereof, the plaintiffs testified that they had become upset and bitter because of the gas leak. There was no evidence, medical or lay, that any members of the household had become ill because of the consumption of contaminated water. Plaintiffs also offered evidence regarding the inconveniences which they had endured because of the contamination of their wells.

The trial court instructed the jury as follows:

Since certain expenses of all of these plaintiffs have been paid to date by Tanner, such as the drilling of new wells on their properties, your determination of the appropriate damages on the unique facts of this case must be determined as follows: With regard to what we call compensatory damages: 1. Each plaintiff shall be entitled to be reasonably compensated for all aggravation and inconvenience that he or she has suffered as a result of the contamination of their well water; 2. And this is still part of what we call compensatory damages. Each plaintiff shall be entitled to be reasonably compensated for all mental anguish suffered or to be suffered as a result of the contamination of their well water in the manner in which the gas station has been and is being operated.

The jury returned a verdict for the plaintiffs, apportioning 70% of the causal negligence to Tanner and 30% to the Shannons. Damages were awarded as follows: Janet Houston, $13,000; Virginia Kelso, $10,400; William Fraker, $5,000; and Arlene Fraker, $10,000. Additionally, punitive damages were assessed against Tanner in the following amounts: $25,000 to Houston and Kelso, and $12,500 to each of the Frakers. The verdict was later molded to include delay damages.

From early times, the general rule of law in Pennsylvania has been that, except in limited circumstances, a claimant may not recover damages for negligently inflicted emotional distress in the absence of a physical manifestation of the emotional distress allegedly suffered. Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986); Boarts v. McCord, 354 Pa.Super. 96, 511 A.2d 204 (1986); Lazor v. Milne, 346 Pa.Super. 177, 499 A.2d 369 (1985); Justice v. Booth Maternity Center, 345 Pa.Super. 529, 498 A.2d 950 (1985), reversed on other grounds, 510 Pa. 429, 509 A.2d 838 (1986); Rogers v. Nationwide Mutual Insurance Co., 344 Pa.Super. 311, 496 A.2d 811 (1985); Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). Although the Supreme Court has in recent years created exceptions to the rule under compelling circumstances, the general rule remains extant in this Commonwealth. Compare: Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987) (to recover for intentional infliction of emotional distress, plaintiff must prove emotional distress by medical evidence).

It may be that the time has come to create an additional exception to allow damages for mental distress under the circumstances similar to the facts of this case. In a case involving comparable facts, the Supreme Court of Montana held that damages for mental anguish were recoverable against a gasoline service station whose gasoline, because of a negligent installation of tanks, had leaked and contaminated plaintiffs neighboring home and restaurant. French v. Ralph E. Moore, Inc., 203 Mont. 327, 661 P.2d 844 (1983). See also: Moreland v. Acadian Mobile Homes Park, Inc., 313 So.2d 877 (La.App.1975), cert. denied, 319 So.2d 442 (damages for emotional distress allowed where effluent from sewage treatment plant for mobile homes park allowed to flow across neighboring land); Spaulding v. Cameron, 127 Cal.App.2d 698, 274 P.2d 177 (1954) (recovery allowed for mental distress where loose dirt was allowed to wash onto neighboring property). See also: 38 Am.Jur.2d, Fright, Shock, and Mental Disturbance § 30.

Whether a new exception to the general rule should be created in Pennsylvania, however, is not for this Court to determine. We are charged, rather, to apply the law as it has been pronounced by the Supreme Court. That law, as we understand it, is that there can be no recovery for negligently inflicted mental or emotional distress in the absence of attendant physical injury to the person of the claimant. When the general rule is applied in the instant case, we are constrained to conclude that there was error in the trial court’s jury instructions which allowed plaintiff-appellees to recover for emotional distress.

It follows that if plaintiff-appellees could not recover compensatory damages for emotional distress, they also could not recover punitive damages against the defendant-appellant for causing worry and concern. Punitive damages cannot be recovered in the absence of a legally recognized injury. See: Hilbert v. Roth, 395 Pa. 270, 276, 149 A.2d 648, 652 (1959) (punitive damages may not be awarded where plaintiff is precluded from recovering compensatory damages); Sulecki v. Southeast National Bank, 358 Pa. Super. 132, 136, 516 A.2d 1217, 1219 (1986) (in order to recover punitive damages plaintiff must first prove compensatory damages); Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 128, 464 A.2d 1243, 1262 (1983) (award of punitive damages improper unless actual damages suffered). Furthermore, punitive damages can only be awarded where a defendant’s conduct is found to be malicious, wanton, willful, reckless, or oppressive. See: Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-748 (1984); Chambers v. Montgomery, 411 Pa. 339, 344-345, 192 A.2d 355, 358 (1963); Hughes v. Babcock, 349 Pa. 475, 480, 37 A.2d 551, 554 (1944). “Punitive damages may not be awarded for misconduct which constitutes ordinary negligence____” McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 623, 533 A.2d 436, 447 (1987). See also: Martin v. Johns-Manville Corp., 508 Pa. 154, 170, 494 A.2d 1088, 1096-1097 (1985) (plurality opinion); Feld v. Merriam, supra 506 Pa. at 396, 485 A.2d at 748; Delahanty v. First Pennsylvania Bank, supra 318 Pa.Super. at 129-130, 464 A.2d at 1263. Here, plaintiff-appellees failed to show that defendant-appellant’s conduct was of such a nature that punitive damages were appropriate as punishment. An award of punitive damages under the circumstances of this case, therefore, was improper.

The law in this Commonwealth has long recognized that where injury is sustained to real property as a result of the negligence of another, the property owner is entitled to damages for the inconvenience and discomfort caused thereby. See: Dussell v. Kaufman Construction Co., 398 Pa. 369, 378, 157 A.2d 740, 745 (1960); Evans v. Moffat, 192 Pa.Super. 204, 221, 160 A.2d 465, 473 (1960). See also: Moore v. Mobil Oil Co., 331 Pa.Super. 241, 257, 480 A.2d 1012, 1020 (1984). Accord: Restatement (Second) of Torts § 929(c).

Appellants argue, however, that plaintiffs’ complaint did not contain a separate claim for inconvenience and discomfort. Appellees concede that no such claim was made in their complaint, but they argue that defendants must have been aware that such a claim would be made when reference to the inconveniences suffered by plaintiffs was made during pre-trial discovery.

The general rule is that damages must be pleaded. “The pleadings determine the relief that may be afforded: 'Neither allegations without proof nor proof without allegations, nor allegations and proof which do not substantially correspond, will entitle complainant to relief, unless the defect be remedied by amendment.’ ” Bowman v. Gum, Inc., 321 Pa. 516, 525, 184 A. 258, 262 (1936), quoting Spangler Brewing Co. v. McHenry, 242 Pa. 522, 528, 89 A. 665, 667 (1914). “The rule against a variance between allegations and proof is based upon the sound reasoning that a defendant should not be taken by surprise at trial by being called upon to defend either against matters of which he had no notice in the pleadings, or against a different cause of action.” Allegheny Ludlum Industries, Inc. v. CPM Engineers, Inc., 278 Pa.Super. 201, 205, 420 A.2d 500, 501 (1980).

In the instant case, the plaintiffs did not allege a claim for inconvenience and discomfort in their complaint. Moreover, no attempt was made by the plaintiffs at any time to amend their complaint in order to assert a claim for inconvenience and discomfort. Although plaintiffs had referred to their inconvenience in answers to interrogatories, they never did amend their complaint to make a claim for inconvenience and discomfort. After having proceeded to trial on a claim for emotional distress, plaintiffs could not during trial, without amending their complaint, ask the court to instruct the jury to award damages for inconvenience and discomfort. To instruct the jury that plaintiffs could recover damages for inconvenience and discomfort, when no claim therefor had been made, was to ignore the pleadings. Unless we are prepared to ignore the rules of pleading, therefore, we are constrained to hold that plaintiffs cannot recover damages for inconvenience when they failed to plead such a claim.

In summary, the law of Pennsylvania does not recognize a cause of action for compensatory or punitive damages for negligently caused emotional distress in the absence of physical injury. Secondly, although the law does recognize a cause of action for inconvenience and discomfort caused by interference with another’s peaceful possession of his or her real estate, such a claim must be pleaded. If it is not pleaded, a jury may not be allowed, over objection, to award damages therefor. In the instant case, the plaintiff-appellees did not plead a claim for inconvenience; and, therefore, the jury should not have been permitted to make an award therefor.

When these principles are applied to the instant case, it becomes apparent that after the defendants had recompensed plaintiffs for all their economic losses, the plaintiffs were not entitled to recover additional compensatory or punitive damages for emotional distress and did not make a claim for inconvenience.

Judgment reversed and now entered for the appellants, H.J. Tanner, Inc. and J.H. Shannon and Arlene Shannon, t/d/b/a Shannon’s Service Station.

      . Also named as defendants were Oliver and Evelyn Martin, who owned and leased to the Shannons the property on which the service station was located, and Texaco, Inc., which supplied gasoline to Tanner, Inc. Compulsory nonsuits were entered in favor of these defendants at the close of all the evidence. These nonsuits are not in issue in this appeal.

      . See: Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981) (parent allowed recovery for mental distress caused by birth of unplanned, genetically defective child); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) (recovery for mental distress permitted for parent who witnessed tortious assault upon' her minor child). See also: Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 481 A.2d 1194 (1984) (allowing recovery by plaintiff who had been wrongfully imprisoned because of negligent misrepresentation of tax bureau that she had failed to pay taxes).

      . We recognize that the creation of such an exception may have far reaching consequences, particularly in cases of nuclear accident or contamination of property by invading carcinogens, which give rise to claims for mental or emotional distress without accompanying physical injury. If such an exception is to be created, therefore, it must be done either by the legislature or the Supreme Court. It should not be created by an intermediate appellate court.

      . The case was not tried on the theory of an intentional infliction of emotional distress. The complaint did not contain allegations of intentionally inflicted emotional distress; plaintiffs did not pursue such a cause at trial; and the trial court did not instruct the jury regarding such a cause of action.