author: CIRILLO, President Judge: WIEAND, Judge,

text:
    518 A.2d 563
    Edward SCARBOROUGH Minor by his Parent and Natural Guardian Patricia SCARBOROUGH and Patricia Scarborough in her own right v. Andrew L. LEWIS and Joseph L. Castle, Trustees for Reading Co. v. CITY OF PHILADELPHIA.
    Superior Court of Pennsylvania.
    Argued April 10, 1986.
    Filed Nov. 28, 1986.

      Barbara Axelrod, Deputy City Solicitor, Philadelphia, for appellant (at 1053) and for appellee (at 1054).
    E. Parry Warner, Philadelphia, for appellants (at 1054) and for appellees (at 1053)
    James E. Beasley, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   CIRILLO, President Judge:

This case involves consolidated appeals from an order of the Court of Common Pleas of Philadelphia County, sitting en banc, denying the post-trial motions of appellant, City of Philadelphia (hereinafter “City”), and appellants, Andrew L. Lewis and Joseph L. Castle, trustees for the Reading Company (hereinafter referred to collectively as “Reading”).

Appellees, Edward Scarborough and his mother, Patricia Scarborough, instituted this action in 1976 against Reading to recover for personal injuries sustained by Edward in a railroad train accident which occurred in 1974. Reading joined the City as an additional defendant and the case proceeded to a jury verdict in favor of the Scarboroughs and against both defendants.

The facts may be summarized as follows. On June 24, 1974, Edward Scarborough, then nine years of age, was playing basketball at the end of a dead-end street owned and maintained by the City. The ball rolled through a hole in the fence and continued down an embankment which lead to a right of way and then to railroad tracks owned and operated by Reading. There was a path leading down the slope toward the tracks. Edward climbed or slid through the hole in the fence and followed the ball down the embankment. As he was going to retrieve the ball, Edward heard a train passing by. Edward retrieved the ball and carried it back to the fence, but then turned and walked back down the embankment. Edward boarded a moving train car and rode for a minute or two. Edward attempted to jump off the train, but fell underneath the wheels. Both of Edward’s legs were amputated.

On appeal, both Reading and the City argue that the appellees failed to establish a legally cognizable cause of action and that judgment n.o.v. should have been granted. In addition, the City raises numerous issues in support of its argument that a new trial must be granted and, alternatively, argues that the verdict was excessive and that delay damages were improperly imposed. We will consider each appeal separately.

I. The City’s appeal

We first consider the City’s contention that it was entitled to judgment n.o.v. As stated by our Court in Walsh v. Pennsylvania Gas and Water Company, 303 Pa.Super. 52, 58, 449 A.2d 573, 576 (1982):

In reviewing the denial of a motion for judgment N.O.V., the evidence together with all reasonable inferences therefrom must be viewed in a light most favorable to the verdict winner; all conflicts in the evidence are resolved in favor of the prevailing party. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). Evidence supporting the verdict is considered and the rest rejected. Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). As we said recently, “A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper____” Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982).

In its appellate brief, the City argues that the Scar-boroughs failed to present a legally cognizable cause of action because, as a matter of law, the City as a property owner owes no duty to those who cross its land and are subsequently injured by a dangerous condition on the property of another. We hold that issues relating to the nature and source of the common law duty owed by the City to Edward Scarborough are not preserved for our review.

Our review of the record reveals that the City failed to present argument in its post-trial brief concerning the source, existence, or nature of the duty owed by the City to Edward Scarborough. Instead, the City’s post-trial brief addresses the issue of the existence of a causal connection between Edward’s injuries and the City’s breach of some unspecified duty. The existence of that duty, for the purposes of the City’s post-trial brief, was apparently considered a foregone conclusion. In our view, the City’s failure to brief the critical duty issue at the close of the proceedings deprived the trial court of both the need and opportunity to address the merits of the City’s post-trial contentions in this regard. Thus, we conclude that the common law duty issues, as raised now by the City on appeal, are waived and may not serve as a basis for relief.

Moreover, even if the City’s common law duty arguments were properly preserved for our review, it is clear that such arguments would afford no basis for reversal of the trial court’s refusal to grant the City’s motion for judgment n.o.v. The City argues that its liability could not have been premised upon Section 339 of the Restatement (Second) of Torts inasmuch as the train was not located on the City’s land and the City was not in possession or control of the right-of-way. We agree. Kearns v. Rollins Out door Advertising, Inc., 89 Pa.Commw. 596, 492 A.2d 1204 (1985); Cousins v. Yeager, 394 F.Supp. 595 (E.D.Pa.1975). However, it is clear that the trial court also agreed with this statement of law, and, in accordance with the City’s request, specifically charged the jury to that effect. Indeed, the trial court carefully limited the applicability of Section 339 to the issue of Reading’s liability:

Now, members of the jury, a possessor of land — and in this case the railroad possessed the land on which their tracks were, the embankment in this case; the City was the possessor of the bed of 13th Street — but this I am telling you with regard to the issue with regard to the railroad. A possessor of land is subject to liability for physical harm to children trespassing thereon, even though they are trespassing, there is still liability with regard to children trespassing thereon caused by an artificial condition upon the land, if all of the following requirements or conditions are met. That is, the plaintiff under this theory must prove all of the following five conditions in order to prove that the Reading Company was negligent, even though he was a trespasser. Remember, I told you hopping on the train would be a trespasser. These would be your five conditions ...
Under Pennsylvania law, the attractive nuisance doctrine does not extend to impose liability on landowners for conditions which exist on an adjoining third party’s property. That is correct and affirmed for our purposes. Under Pennsylvania law, a defendant who owns land adjacent to a railway has no duty to erect a fence or other protective devices or to provide warnings to protect children who live or play on its land.
Under the law in Pennsylvania, a landowner is under no duty to a person who passes over his land as to a possible dangerous condition on the land of another. That is the law of Pennsylvania.

In light of the above, it is obvious that the City’s liability was not premised on Section 339. Therefore, even if this argument had been preserved, the City is without cause to complain on appeal that the trial court erred in refusing to grant judgment n.o.v. based upon the inapplicability of Section 339.

Similarly, we are not persuaded by the City’s argument that judgment n.o.v. should have been granted because a duty to erect the fence was improperly imposed upon the City. It is well settled that the law imposes no duty upon a possessor of adjacent land to erect fencing or provide warnings so as to deter persons from entering a third party’s property. Kearns v. Rollins Outdoor Advertising, Inc., supra; Maguer v. Baptist Church, 174 Pa. 84, 34 A. 456 (1896); Heller v. Consolidated Rail Corporation, 576 F.Supp. 6 (E.D.Pa.1982), aff'd 720 F.2d 662 (3d Cir. 1983); Cousins v. Yeager, 394 F.Supp. 595 (E.D.Pa.1975). Indeed, as the City aptly points out, it would be incongruous to impose such a duty upon adjacent landowners when no such duty is imposed upon the owner of the land in which the dangerous condition exists. It has long been held that a railroad has no duty to erect fences on its right of way to deter trespassers. Dugan v. Pennsylvania R.R. Co., 387 Pa. 25, 127 A.2d 343 (1956); Malischewski v. Pennsylvania R.R. Co., 356 Pa. 554, 52 A.2d 215 (1947). However, this argument is of no moment in the instant appeal. A review of the record reveals that, again, the trial court agreed with these statements of law and, again, charged the jury to that effect in accordance with the City’s request. (See above quoted portion of the trial court’s charge). Thus, the City is without cause to complain that a duty to erect fences or install warnings was somehow imposed upon it. In addition to not being preserved for our review, the City's argument that it was entitled to judgment n.o.v. on this basis is without merit.

The City may have had cause to complain on appeal that its duty was premised upon Section 323 of the Restatement (Second) of Torts. With respect to this theory of liability, the trial court charged the jury as follows:

If, having undertaken to maintain the fence there was a failure to exercise reasonable care, and if harm is suffered because of the other’s reliance upon that undertaking, then there may be responsibility and liability.
If you find that the City undertook to erect or maintain a fence at the end of 13th and McFerran Streets, you may then find that there was an obligation to maintain that fence properly; that is without holes, as is contended by the plaintiff.

The City failed to object to the trial court’s Section 323 charge beyond requesting a supplementary instruction that there was no evidence that Edward relied upon the fence to keep him off the tracks. Such an instruction was given. The issue of the trial court’s application of Section 323 to the facts of the instant case was not addressed in the City’s post-trial brief and has not been pursued on appeal. Therefore, we need not and will not consider it. We offer no opinion on the question of whether the gratuitous erection of a fence or other protective device by a possessor of land adjacent to a dangerous condition or instrumentality gives rise to liability under Section 323 when a person is injured by that condition or instrumentality as a result of a failure to properly maintain the fence or device. See Hayes v. Philadelphia Electric Co., 92 Pa.Commw. 205, 212, 498 A.2d 1019, 1023 (1985) (Kalish, S.J., dissenting).

The City’s final judgment n.o.v. argument concerns the trial court’s treatment of a Philadelphia Police Department directive issued by the Police Commissioner prior to Edward’s injury. This is the only judgment n.o.v. argument presented by the City that is properly preserved for our review. We find it to be without merit.

Police Directive 38 was issued by the Police Commissioner and directed police officers to report dangerous conditions on City property. At trial, the City sought to preclude the use of Directive 38 through a motion in limine. The City also moved for a nonsuit and a directed verdict, contending that the City’s alleged failure to comply with the Directive was not in itself actionable. At the close of trial, the City requested binding instructions and points for charge to the effect that the Directive could not form a basis for a finding of liability against the City. As noted by the City in its appellate brief, the trial court “charged the jury in accordance with the City’s Binding Instructions.” Brief for Appellant, City of Philadelphia, at 7. The record reveals that the trial court specifically and correctly instructed the jury that the Scarboroughs could not recover against the City for failure to provide police protection absent some breach of a duty owed to Edward in his individual capacity, and not merely a breach of an overall obligation to the general public. In light of this, it is clear that the jury’s determination of the City’s liability could not have been improperly premised upon a duty created or undertaken by the promulgation of Police Directive 38. Therefore, the City is not entitled to judgment n.o.v. simply because the Scarboroughs failed to plead or prove a cause of action based on Directive 38.

We next consider the City’s contention that the trial court improperly denied its motion for a new trial. Initially, we reiterate the well established rule regarding the circumscribed scope of appellate review applicable to a trial court’s order granting or denying a new trial. The grant or denial of a new trial will not be subject to reversal on appeal absent either an error of law which controlled the outcome of the case, Martin v. Johns-Manville Corp., 508 Pa. 154, 163, 494 A.2d 1088, 1093 (1985) citing Anzelone v. Jesperson, 436 Pa. 28, 258 A.2d 510 (1969); Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967), or a palpable abuse of discretion when the ruling turns on the weight of the evidence. Martin v. Johns-Manville, supra, citing Lobozzo v. Adam Eidemiller, Inc., 437 Pa. 360, 367-68, 263 A.2d 432, 436 (1970).

The City raises numerous issues in support of its contention that a new trial must be granted. Our consideration of just one of these issues leads us to the conclusion that a new trial is required.

The issue of Edward Scarborough’s contributory negligence was, obviously, a critical one at trial. Pursuant to then existing law, the trial court charged the jury that Edward could not recover if the jury found that Edward was contributorily negligent in boarding the train and that such negligence was a substantial factor in bringing about his injuries. The court further charged that a child is “held to that measure of care and caution and discretion which other children of the same age, experience, intelligence, capacity and development would ordinarily exercise.” The court also instructed, at three separate points in its charge, that Edward was a trespasser when he boarded the train.

During its deliberations, the jury returned with the following request: “Additional instructions. What constitutes ‘responsible care’ on the part of a child aged 7 to 14 according to law — i.e., is the responsibility of the child at this age to know what constitutes trespassing?”

Upon receipt of the jury’s request, the trial judge and counsel for all parties convened for an in-chambers collo-quoy. The trial court acknowledged that the jury’s question was susceptible to at least two meanings. Counsel for the Scarboroughs suggested that the court’s answer should be “no,” arguing that the jury was simply asking whether a seven to fourteen-year old child should know what trespassing is. Counsel for the City disagreed and argued that “the concept of trespassing goes into the concept of whether or not the child knows at his age he is doing something he should not be doing, in that it is something that could possibly hurt him.” The City further argued that while a child may not know what the actual term “trespasser” means, a child “knows where it should not be.” Finally, the City argued that a simple “no” answer would not suffice because the court, in its charge, used the term “trespassing” as a correlative to boarding the train. Likewise, counsel for Reading argued that “the answer is that it’s his responsibility to know about trespassing whatever a reasonably careful child the same age, experience, et cetera, should know about that.”

The trial judge concluded the colloquoy and addressed the jury as follows (emphasis supplied):

Members of the jury, when you address a deliberating jury, it is my desire to say as little as possible for your consideration, so that I don’t confuse you or lead you into other fields.
You have asked me the following question: “What constitutes ‘responsible care’ on the part of a child aged 7 to 14 according to law?” That is, that’s what you “i.e.” is, “Is it the responsibility of the child at this age to know what constitutes trespassing?”
My answer to you is “no. The word trespassing is a legal word.
Does that answer your question?
(All jurors answered affirmatively.)
Now, have I answered you sufficiently so that you are satisfied to proceed with your deliberations?
(Whereupon all jurors answer affirmatively.)
The law uses the term to describe differences of certain people. Are you satisfied with my additional instructions?
(Whereupon all jurors answer affirmatively.)

In considering the sufficiency and effect of the trial court’s response to the jury’s request for additional instructions we are guided by several well settled principles. First, it is basic to a fair trial that the trial judge clearly define the issues in order that the jury may have an intelligent understanding of those cases. Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963). Indeed, our courts have long recognized that the primary duty of a trial judge in charging a jury is to clarify the issues so that the jurors may comprehend the questions they are to decide. Smith v. Clark, supra; Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176 (1963); Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338 (1939); Wood v. Smith, 343 Pa.Super. 547, 495 A.2d 601 (1985). Absent clarification of the issues and the application of the law to the facts, a fair trial is not present. Smith v. Clark, supra. .

Second, while there may be situations in which a trial judge may decline to answer questions put by the jury, when a jury returns on its own motion indicating confusion, the trial court has the duty to give such additional instructions on the law as the court may think necessary to clarify the jury’s doubt or confusion. Worthington v. Oberhuber, 419 Pa. 561, 563, 215 A.2d 621 (1966). In order to obtain a new trial based on the trial court’s treatment of the jury’s question, the moving party must demonstrate in what way the trial error caused an incorrect result. Nebel v. Mauk, 434 Pa. 315, 253 A.2d 249 (1969). To carry its burden of showing a causal connection between the error and the result, the moving party must show at least a “substantial possibility of an incorrect result after consideration is given to the particular facts of the case in question, with attention also to the nature of the response required to answer the particular question put to the judge.” Reilly v. Poach, 227 Pa.Super. 522, 525 at Note 2, 323 A.2d 50, 52 at Note 2 (1974) (emphasis supplied). Finally, when a jury’s confusion or misapprehension is disclosed, the trial court must have discretion in determining how best to resolve the confusion or misapprehension. “ ‘This discretion is an incident to the mode and manner of trial and in the absence of flagrant abuse, should rest with the trial court.’ ” Commonwealth v. Washington, 274 Pa.Super. 560, 568, 418 A.2d 548, 552 (1980) quoting Commonwealth v. Fontaine, 183 Pa.Super. 45, 47, 128 A.2d 131, 132 (1956). The above stated principles apply when the jury exhibits confusion as to the facts or the law. Commonwealth v. Washington, supra.

Applying the above principles to the instant case, we find: (1) the jury did not fully comprehend the issues it was directed to resolve; (2) the trial court’s response did little or nothing to clarify the confusion evidenced by the jury’s question; (3) the jury’s failure to comprehend, coupled with the trial court’s response, created at least a substantial possibility that an incorrect result was obtained; (4) the trial court’s response constitutes reversible error; and (5) the trial court abused its discretion in refusing to grant a new trial. Accordingly, we reverse the order of the trial court and remand this case for a new trial.

We agree with the City and the trial judge’s assessment that the jury’s question carried, at least, a “double barreled” meaning. Indeed, the jury’s question is reasonably susceptible to several interpretations, for example: (1) “Does a child’s ability to know that he is in a place where he does not belong constitute a factor in deciding whether that child had the capacity and intelligence to appreciate the danger involved and then conduct himself accordingly?” or, (2) “As a matter of law, must a seven to fourteen-year old be capable of understanding the concept of trespassing before he may be contributorily negligent?” or, (3) “Must a child be able to define the actual word “trespassing” in its legal sense before he may be contributorily negligent?” or, (4) “How does a child’s ability to understand his status as an entrant on land impact upon our application of the applicable standard of care?” or, (5) “What is the standard of care for a child of this age?” It is precisely because of this “double barreled” or multiple meaning that the trial court’s answer could not suffice as a response to the jury’s request for additional instructions.

We believe that the trial court’s supplemental instruction allowed and invited the jury to do more than merely conclude that a seven to fourteen-year old child is not charged with the responsibility of successfully defining or understanding the actual term “trespassing” as a “legal word”. The instruction created a substantial possibility that the jury would draw the alternate and incorrect conclusion that a child of that age may never be held capable of understanding the concept of trespassing. Under the circumstances, such a misapprehension on the part of the jury could have been fatal to the issue of contributory negligence inasmuch as it is reasonably apparent from the two part question that the jury had somehow drawn a connection between (1) the child’s responsibility and ability to understand trespassing, and (2) the child’s exercise of “responsible care.” Thus, the incorrect conclusion (that a child of like age is never charged with the responsibility of understanding “trespassing” as a concept) quite possibly led to the equally incorrect conclusion that such a child cannot be contributority negligent. The trial court recognized the dangerous and dual nature of the question, but either ignored or failed to recognize the broader implications of the question or the chosen response. In so doing, the trial court breached its primary duty of clarifying the issues so that the jury could comprehend the questions it was directed to resolve. See Reilly v. Poach, supra (reversible error when refusal to clarify or reinstruct could easily cause the jury to apply wrong standard of care).

Moreover, even if the court’s narrow answer to the second half of the jury’s question was correct in a technical sense, the trial court failed to clarify or address the broader issue presented in the first half of the jury’s question. The first half clearly represents a request for additional instructions regarding the crucial issue of “[w]hat constitutes responsible care on the part of a child aged 7 to 14 according to law ...” By its very nature, the jury’s request evidenced at least the substantial possibility of confusion or misunderstanding with respect to the applicable standard of care as it related to the contributory negligence issue. Therefore, under the particular facts of this case, it was incumbent upon the trial court to clarify the issue. We believe that the court could easily have accomplished this, without alluding to the facts of the case and without prejudice-'to any party, by summarising or even repeating its original substantive instructions on the issues of contributory negligence and the standard of care.

The Scarboroughs argue that resolution of the issues raised by the jury’s request could not have affected the issue of the City’s liability inasmuch as Edward’s legal status as an entrant upon land related only to the scope of Reading’s duty under Restatement Section 339. We disagree. To the contrary, it is apparent that the jury somehow entwined the issue of Edward’s trespasser status with the issue of “responsible care” and, a fortiori, with the issue of Edward’s contributory negligence.

The Scarboroughs adopt the trial court’s citation of Link v. Highway Express Lines, Inc., 444 Pa. 447, 282 A.2d 727 (1971) for the proposition that a trial court’s actions cannot be erroneous when the judge correctly answers a jury’s question based on the judge’s assumption of the meaning of the question. We consider this an overly broad reading of that case. Link does not stand for the proposition that, in all cases, there is no error when the judge correctly answers a question based on his or her assumption of the meaning of the question. First, there is no indication that the appellants in Unk challenged the soundness of the trial court’s basic assumption. Here, the trial judge’s assumption is vigorously challenged. Second, such a broad reading of Link ignores the primary duty of the trial court which, as stated previously, is to clarify the issues. Moreover, it would appear that the decision in Link turned at least in part on the appellants’ tacit agreement to the judge’s answer prior to its submission to the jury. Id., 444 Pa. at 450, 282 A.2d at 729. No such agreement is evident here.

In its opinion, the trial court attaches great significance to the jury’s repeated indications of satisfaction with the judge’s “additional instructions.” However, we fail to see how the jury’s expression of satisfaction with the trial court’s response is in itself dispositive of the issue at hand. The question is not merely whether the jury was “satisfied,” but whether the trial court erred by failing to clarify the issues so as to avoid the substantial possibility of an incorrect result. Here, we believe that the trial court’s supplemental instruction did little to clarify the issues and instead made an incorrect result substantially possible, if not probable. Accordingly, we remand for a new trial.

II. Reading’s appeal

Reading argues that it was entitled to judgment n.o.v. because, in its view, the Scarboroughs failed to establish a cause of action under Section 339 of the Restatement (Second) of Torts, or under applicable principles of common law negligence relating to permissive railroad crossings. We agree.

Assuming arguendo that Section 339 is applicable to a case involving a moving train on a right of way, it is quite clear that our Supreme Court’s holding in Dugan v. Pennsylvania Railroad Co., 387 Pa. 25, 127 A.2d 343 (1956) precludes recovery under Section 339 in this case. In order to establish a cognizable cause of action for negligence under Section 339, a plaintiff must satisfy each of that section’s five specific requirements. Subsection (d) requires proof that the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to the children involved. In Dugan, supra, our Supreme Court held on similar facts that the requirements of subsection (d) had not been satisfied as a matter of law, and quoted with approval the following comment to subsection (d):

The comment in § 339 makes this explanation of clause (d): “In determining whether a particular condition maintained by a possessor upon land which he knows to be subject to the trespasses of children involves an unreasonable risk to them, the comparison of the recognizable risk to the children, with the utility to the possessor of maintaining the condition, is of peculiar importance. The public interest in the possessor’s free use of his land for his own purposes is- of great importance. A particular condition is, therefore, regarded as not involving unreasonable risk to trespassing children unless it involves a grave risk to them which would be obviated without any serious interference with the possessor’s legitimate use of his land.”

Id., 387 Pa. at 32-33, 127 A.2d at 347. (Emphasis in original). We hold, in accordance with Dugan, that the utility of railroad operations and the public interest in the Railroad’s free use of the right of way outweigh the risk involved. Further, as did the Court in Dugan, supra, we hold that the risk involved, although grave, could not have been obviated without serious interference with the Railroad’s legitimate use of the right-of-way.

til] In its opinion, the trial court attempted to avoid the obvious impact of Dugan on Reading’s liability by characterizing the fence as the dangerous artificial condition for Section 339 purposes as opposed to the moving train itself. Such a characterization is patently erroneous. First, as stated previously, it is well settled that a railroad has no duty to fence its right-of-way to prevent trespassing by children. See Dugan, supra; Malischewski v. Pennsylvania Railroad Co., supra. Second, Section 339 applies to artificial conditions “upon the land” of the party against whom recovery is sought and not, as here, to artificial conditions on the land of adjacent property owners. We will not burden this discussion with further consideration of this point.

We next consider whether the Scarboroughs established a cognizable cause of action under their second theory of liability against Reading. The Scarboroughs contended that the accident site was a permissive crossing and that Reading was negligent in failing to keep a proper lookout.

In a permissive crossing situation, a railroad’s duty consists of (a) keeping a lookout to see if persons are using the permissive crossing, (b) warning users of the train’s approach, and (c) taking action to stop the train before reaching the permissive crossing if persons are using it. Figard v. Pennsylvania Railroad Co., 361 Pa. 380, 65 A.2d 411 (1949). However, once a train reaches and enters the permissive crossing, its presence is sufficient warning to persons intending to use it, and no further action by the railroad is necessary. Celia v. Pennsylvania Railroad, 364 Pa. 82, 70 A.2d 638 (1950); Hogg v. Bessemer, 373 Pa. 632, 96 A.2d 879 (1953); Yazvac v. Baltimore and Ohio Railroad, 342 F.Supp. 161 (W.D.Pa.1972). Applying these principles to the facts of the instant case, it is clear that the Scarboroughs failed to establish a cognizable cause of action based on common law negligence and the doctrine of permissive crossings.

First, our review of the evidence adduced at trial convinces us that the area in question was not a permissive crossing as the Scarboroughs now contend. Therefore, the above enumerated duties have no application in the instant matter. Second, assuming arguendo that the area was a permissive crossing, the record clearly establishes that the train entered and began passing through the area before Edward approached the moving train from his position near the fence. Thus, there was no duty owed by the Railroad to Edward at the time in question. Finally, Edward’s own testimony establishes that he never intended to cross the tracks, but rather to leap aboard the moving train. Therefore, in any event, Edward was not a permissive crosser, and a theory of liability based upon the doctrine of permissive crossings is wholly inapplicable.

The Scarboroughs failed to establish a legally cognizable cause of action based upon Section 339, Restatement, Second, Torts, or upon common law negligence principles. Therefore, we reverse the order of the trial court insofar as it dismissed Reading’s motion for judgment n.o.v.

Order reversed as to appellants Castle and Lewis. Order denying appellant City of Philadelphia’s motion for judgment n.o.v. affirmed. Order denying appellant City of Philadelphia’s motion for new trial reversed. Remanded for new trial. Jurisdiction relinquished.

WIEAND, J., dissents.

WIEAND, Judge,

dissenting:

In this case involving serious injuries to a nine year old boy who jumped from a moving railroad car which he had “hopped” a short time before, the majority has granted a new trial with respect to the verdict against the City of Philadelphia. In my judgment, the evidence failed to establish that the City of Philadelphia was legally responsible for this unfortunate accident. I conclude, therefore, that a judgment n.o.v. should have been entered in favor of the City.

On June 4, 1974, nine year old Edward Scarborough sustained severe leg injuries when he jumped from a moving railroad car which he had boarded while playing upon property owned by the Reading Company. The boy had gained access to the railroad tracks by climbing through a hole in a chain link fence which had been installed by the City of Philadelphia at the end of Thirteenth and McFerran Streets. Edward’s mother, Patricia Scarborough, commenced an action in trespass on behalf of her son and in her own right against Andrew L. Lewis and Joseph L. Castle, trustees of the Reading Company, alleging Reading’s negligence in its operation of the train and in its failure to take adequate measures to prevent the minor plaintiff from gaining access to the railroad tracks. Thereafter, the City of Philadelphia was joined as an additional defendant on grounds that it had failed to keep the fence in repair and had thereby breached a duty owed to the minor to protect him from the dangerous condition created by the movement of trains on the railroad’s property.

Throughout the trial, the City contended that the law did not impose upon it a duty to protect the minor plaintiff from dangerous activities being conducted on land owned by another. The City moved for a compulsory non-suit at the close of the plaintiffs’ case, but the motion was summarily denied by the trial court. After both parties had rested, the City moved for a directed verdict. This was also denied. The City also submitted points for charge requesting the trial court to instruct the jury that the City owed no duty to repair defective conditions maintained on property not owned by the City or to protect citizens from dangerous activities conducted on private property by other persons. The alleged failure of the evidence to establish a legally cognizable cause of action against the City was again raised by the City in a post-trial motion for judgment n.o.v. Finally, whether the City breached a duty owed to the minor plaintiff and thereby became liable to him for injuries sustained while playing upon the railroad’s land, has been argued on appeal in this Court. It appears, therefore, that the City has raised the alleged nonexistence of a legally cognizable cause of action against it at every opportunity. The nature of the City’s duty, therefore, is an issue which has not been waived but which has been preserved for appellate review and which deserves our attention. Because the majority holds otherwise, I respectfully dissent.

As a general rule, a municipality has no duty to erect a fence to deter persons on the streets of the municipality from entering adjacent property. Kearns v. Rollins Outdoor Advertising, Inc., 89 Pa.Cmwlth. 596, 492 A.2d 1204 (1985). The law has not imposed upon a municipality a duty to erect fencing or other protective devices to deter trespassing children from entering the property of a third person and there encountering a dangerous condition not created or maintained by the municipality and over which it has no direct control. Kearns v. Rollins Outdoor Advertising, Inc., supra. See also: Heller v. Consolidated Rail Corp., 576 F.Supp. 6 (E.D.Pa.1982), aff'd, 720 F.2d 662 (3d Cir.1983); Cousins v. Yaeger, 394 F.Supp. 595 (E.D.Pa.1975). Indeed, “[t]he imposition of a duty to fence one’s land which adjoins a railroad right of way would ... produce an incongruous result since the Pennsylvania cases hold that there is ordinarily no duty on a railroad to fence its right of way to prevent children from trespassing.” Id. at 605.

It was contended by the plaintiffs, however, that when the City undertook to erect a fence at the end of its street, it thereby became liable if a child were causally injured because of the City’s failure thereafter to keep the fence in repair. Specifically, plaintiffs relied upon Section 323 of the Restatement (Second) of Torts, which provides as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

This section recognizes that liability for harm resulting from the failure to exercise reasonable care may result where (1) the failure to exercise reasonable care has increased the risk of harm or (2) the harm is suffered because of the other’s reliance upon the undertaking. In the instant case, however, neither of these elements was established by plaintiffs’ evidence.

There was no proof that the City’s failure to repair the hole in the fence increased the risk that children such as Edward Scarborough would enter the railroad yard and be injured by a moving train. At the very worst, the City's failure to repair the fence created the same risk of children entering upon the railroad tracks as would have existed if the City had not undertaken to erect and maintain the chain link fence at the end of the street. Moreover, the evidence established clearly that the harm to the Scarborough boy did not result from his reliance upon the City to maintain the fence. Children in the neighborhood had placed a backboard and basket at Thirteenth and McFerran Streets. Scarborough had been playing there on June 24,1974, when the basketball rolled through the fence and down an embankment to the railroad tracks of the Reading Company. He followed the ball, retrieved it, and returned it to the top of the embankment. Because he heard a moving train, he then descended to the tracks once again, where he jumped aboard one of the cars of a moving train. After riding the train for a brief period, he attempted to jump from the moving train. His attempt to jump proved disastrous, however, and his legs were amputated as they fell beneath the wheels of the moving train. It is apparent from these facts that the harm which came to the young boy was not the result of his reliance upon the fence to prevent him or his ball from descending to the railroad tracks. The ball had been retrieved, and Scarborough had returned safely to street level. Only then did he make an affirmative decision — a decision having no relationship whatsoever to the existence of the fence or the hole in it — to return to the tracks and hop the freight. In doing so, he intentionally ignored the fence which had been erected by the City and willfully encountered the thrill and also the risks inherent in. jumping on and off a moving train. The fence was not intended to protect Scarborough from such risks, and the evidence is clear that he did not rely upon it to do so. I would conclude, therefore, that liability against the City cannot properly be based on Section 323 of the Restatement (Second) of Torts.

It seems clear, moreover, that the City’s failure to repair the fence was not the legal or proximate cause of Scarborough’s injuries. As we have already observed, the basketball had been retrieved and returned to the street when Scarborough determined to return to the tracks and ride the passing train. The fence, even without a hole, was not intended to prevent and, indeed, could not have prevented Scarborough from realizing this desire to ride the train. The evidence was clear that access to the tracks existed at various points and in various ways if an adult or child wished to descend to the railroad tracks. In short, the fence at Thirteenth and McFerran Streets was not intended to prevent access to the railroad tracks. Even Scarborough conceded that he could and, in fact, had achieved access to the tracks on prior occasions for the purpose of boarding passing trains. Therefore, even assuming for purposes of argument that the City negligently maintained the chain link fence, its negligence was superseded by the voluntary and deliberate decision by Edward Scarborough, after he had returned safely with the loose ball, to return to the railroad tracks for the purpose of engaging in the sport and thrill of hopping a passing train. As a matter of law, under these circumstances, the City of Philadelphia cannot be held liable to the minor plaintiff for injuries sustained when he jumped from a moving train. The City was entitled to a judgment n.o.v., and the trial court’s denial thereof was error.

I would reverse the judgment and remand for the entry of judgment in favor of the City of Philadelphia.

      . The City presents no argument on appeal regarding the issue of a causal connection between the hole in the fence and Edward’s injury.

      . The City’s failure to address the duty issue in its post-trial brief may offer some explanation for the trial court’s failure to include "... one word in [its] Opinion explaining why or how [Restatement Second, Torts] Section 339, or any other provision of the Restatement applies to the City.” Brief for appellant, City of Philadelphia at 18.

        . See generally Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974); Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); see also Commonwealth v. Dessus, 262 Pa.Super. 443, 396 A.2d 1254 (1978) (issue abandoned when not briefed for lower court but raised on appeal as an afterthought); Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978) (issue waived when raised in post-trial motions but not briefed or argued before trial court); Commonwealth v. Prisznyak, 306 Pa.Super. 137, 452 A.2d 253 (1982) (failure to brief or argue issues raised in post-verdict motions results in waiver of issues on appeal); Equipment Finance v. Toth, 328 Pa.Super. 351, 476 A.2d 1366 (1984) (failure to argue or brief issues raised in post-trial motions results in waiver of issues and would not form basis of appeal to reviewing court); Bell v. City of Philadelphia, 341 Pa.Super. 534, 491 A.2d 1386 (1985) (issue not argued in brief filed in trial court was not preserved for appellate review); Cherry v. Wilier, 317 Pa.Super. 58, 463 A.2d 1082 (1983); Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 474 A.2d 1181 (1984).

      . Restatement (Second) of Torts § 339 provides as follows:
      § 339. Artificial Conditions Highly Dangerous to Trespassing Children
      A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
      (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
      (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
      (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

        (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
      (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

      . Restatement (Second) of Torts § 323 provides as follows:
      § 323. Negligent Performance of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm, or
      (b) the harm is suffered because of the other’s reliance upon the undertaking.

      . See generally Melendez by Melendez v. City of Philadelphia, 320 Pa.Super. 59, 466 A.2d 1060 (1983).

      . The record reveals that Directive 38 was admitted as evidence of the standard of care with regard to the inspection and maintenance of City property. The propriety of the trial court’s admission of the Directive into evidence is not challenged on appeal.

      . In light of our determination of this single new trial issue, it is unnecessary to consider the remainder of the City’s new trial issues or to determine which of those issues, if any, have been preserved for appellate review. Likewise, we need not consider the City’s contentions that the trial court improperly awarded delay damages or that the verdict was excessive.

      . Substantial evidence was introduced at trial concerning the extent to which Edward realized that he could be seriously injured by boarding moving trains. The evidence adduced at trial concerning the issue of Edward’s contributory negligence included (1) testimony that Edward’s cousin had previously lost a leg in a similar accident and that the cousin had lived with the Scarboroughs for some time after losing his leg; (2) Patricia Scarborough’s deposition testimony that "Eddie knew at a young age what the train could do to him;” and (3) Edward’s testimony that he knew his mother would have disapproved of his entrance onto the right-of-way and would have given him a “whipping” had she found out about it.

      . During the in-chambers colloquoy, the trial judge stated as follows: THE COURT: I don’t think any of you ought to miss the possible double-barrelled meaning of the question. Think about the question.

      . Neither the Scarboroughs nor the City present arguments on appeal in opposition to Reading’s demand for judgment n.o.v. The Scarbor-oughs and the Reading Company entered into a tortfeasor settlement and release on October 13, 1982.

      . The plaintiffs also contended at trial that the City should be held liable because the city police, by failing to discover, report or repair the defect in the fence at the end of Thirteenth and McFerran Streets, had breached their duty to protect Edward Scarborough from the dangers which awaited him on the property owned by the railroad. The law is clear, however, that police owe no duty to provide protection to any particular member of the public absent the existence of a "special relationship” between that individual and the police. See:
        Melendez v. City of Philadelphia, 320 Pa.Super. 59, 466 A.2d 1060 (1983); Chapman v. City of Philadelphia, 290 Pa.Super. 281, 434 A.2d 753 (1981). See also: 57 Am.Jur.2d § 251. Such a relationship will be found to exist only where the police are aware of the precise danger facing that individual and they undertake to protect him or her from that specific harm. Melendez v. City of Philadelphia, supra, 320 Pa.Superior Ct. at 65, 466 A.2d at 1063-1064. In the instant case, there was no evidence that a special relationship had existed between the minor plaintiff and the Police Department of the City of Philadelphia.
      The plaintiffs argued that such a duty had been created by Police Directive 38. This argument lacks merit. A municipal corporation is not liable in damages for the negligent execution and enforcement of its ordinances by its police officers. Wecksler v. City of Philadelphia, 178 Pa.Super. 496, 501, 115 A.2d 898, 900 (1955). See: 57 Am.Jur.2d Municipal, School, and State Tort Liability, §§ 113, 114; 63 C.J.S. Municipal Corporations, § 769. Likewise, it will not be subject to liability for negligent enforcement of police regulations. See: Id. § 775 (The police regulations of a city are not made and enforced in the interest of the city in its corporate capacity, but in the interest of the public. A city is not liable, therefore, for the acts of its officers in attempting to enforce such regulations).

      . Because of this conclusion, I find it unnecessary to decide the issues raised in the City’s motion for new trial.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    518 A.2d 577
    COMMONWEALTH of Pennsylvania v. Mathew BULICKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 22, 1986.
    Filed Dec. 2, 1986.

      Douglas M. Johnson, Assistant Public Defender, Norris-town, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norris-town, for Com., appellee.
    Before CIRILLO, President Judge, and McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Appellant, Mathew Bulicki, was found guilty of loitering and prowling at nighttime, pursuant to 18 Pa.C.S.A. § 5506, in a jury trial before the Court of Common Pleas of Montgomery County. Appellant thereafter filed post-verdict motions, which the trial court denied. The Honorable Joseph H. Stanziani subsequently sentenced appellant to six to twelve months’ imprisonment. This appeal followed.

Appellant raises two issues on appeal: (1) whether the trial court erred in refusing to instruct the jury on the legal definition of nighttime; (2) whether the jury’s verdict was contrary to the weight of the evidence. We find appellant’s contentions to be meritless and, consequently, affirm the trial court’s decision.

During the early morning hours of September 14, 1985, Mr. and Mrs. Michael Regan were at home, resting in their bedroom. At about 5:50 a.m., Mrs. Regan noticed appellant’s van parked outside her home. At about 6:05 a.m., Mr. Regan, upon arising from his bed, noticed an odor of cigarette smoke coming from an open bedroom window, even though neither he nor his wife smoke. Approximately twenty-five minutes later, Mrs. Regan pulled aside the drawn shades of the open window and noticed appellant’s face staring into the bedroom. Appellant was subsequently arrested and charged with loitering and prowling at nighttime in violation of 18 Pa.C.S.A. § 5506.

Appellant first contends that the trial court erred in refusing to instruct the jury as to the legal definition of nighttime since the crime of loitering and prowling must occur at nighttime pursuant to 18 Pa.C.S.A. § 5506. Pennsylvania has never judicially or statutorily defined nighttime, but appellant’s counsel submitted to the trial judge jury instructions encompassing a legal definition of nighttime adopted in another state. The trial judge, however, refused to utilize this proposed instruction; rather, he advised the jury to consider their own experience and common sense in ascertaining what is nighttime. For the three reasons discussed below, we believe the trial court acted properly in refusing to use appellant’s proposed jury instruction. The first reason concerns the nature of the judge’s jury charge, and the latter two reasons concern the interpretation of the word “nighttime.”

First, trial judges have broad discretion in phrasing and formulating jury charges, as well as handling jurors’ request for clarification of confusing charges. See Com monwealth v. Kidd, 251 Pa.Super. 140, 145, 380 A.2d 416, 419 (1977). In the present case, the trial judge properly instructed the jury to consider its own experience and common sense in determining if appellant’s actions occurred at night. In confronting a similar situation, the Ohio Supreme Court noted:

The jury has the right to apply this common experience of mankind to the determination of the time when the breaking and entering was committed. It was within the province of the jury here to conclude that the defendant worked under the cover of darkness, and the facts developed and circumstances surrounding the commission of the offense were such that it could logically conclude that the defendant did so operate.

State v. Stuttler, 172 Ohio St. 811, 313,175 N.E.2d 728, 731 (1961).

Second, Pennsylvania courts have stated that “in the absence of legislative definitions, the meaning of words are ascribed their ordinary definitions.” Commonwealth v. DeWan, 181 Pa.Super. 203, 207-8, 124 A.2d 139, 140 (1956). See also Lenkiewicz v. Workmen’s Compensation Appeal Board, 39 Pa.Commw. 241, 243, 395 A.2d 307, 308 (1978) (if the legislature does not deem it necessary to define a word, the court must apply the plain and ordinary meaning of the word). Though not statutorily defined in Pennsylvania, nighttime means “the time from dusk to dawn.” Webster’s Third New International Dictionary 1528 (3d Ed.1976). In the present case, appellant was seen outside the Regans’ home approximately fifteen minutes prior to sunrise, which was 6:50 a.m. on the day in question. Appellant’s actions, consequently, happened during the night since dawn occurred after appellant was spotted peering into the bedroom.

Last, at common law in the absence of statutory definition, nighttime was defined as “the period between sunset and sunrise during which there is not daylight enough by which to discern a man’s face.” State v. Dougherty, 186 Kan. 820, 821, 352 P.2d 1031, 1032 (1960). See also State v. Billings, 242 N.W.2d 726, 729 (Iowa, 1976); State v. Hammonds, 616 S.W.2d 890, 894 (Tenn.Cr.App.1981). Pennsylvania’s legislature has not statutorily defined nighttime in its criminal prowling statute, and Pennsylvania’s courts have not previously defined or construed the word “nighttime.” The common law definition of nighttime, consequently, applies in the present case, and testimony adduced at trial revealed that it was still very dark outside when appellant was spotted, pursued, and apprehended outside the victims’ home.

Appellant’s second contention is that the jury’s verdict is contrary to the weight of the evidence since the Commonwealth failed to establish beyond doubt that appellant’s activity occurred at nighttime. In Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978), the Pennsylvania Supreme Court stated the appellate standard of review to be applied in testing the sufficiency of the evidence:

The test to be applied ... is whether, viewing all of the evidence at trial in the light most favorable to the Commonwealth, the verdict winner, and drawing inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Further, while it is clear that a criminal conviction may not be based upon mere speculation or conjecture, evidence may still be found sufficient even though wholly circumstantial.

Id., 480 Pa. at 98, 389 A.2d at 103-4. Viewed in light of this standard, we believe the Commonwealth’s evidence regarding the element of nighttime was sufficient to support the jury’s verdict. As the trial court aptly stated:

Mrs. Regan, Mr. Regan and Officer Furlong of the Chel-tenham Police Department all testified that it was dark outside at the time of the incident. (Transcript pp. 34, 84, 98.) Mrs. Regan and Officer Furlong testified that car headlights were required at that time. (Transcript pp. 40, 98.) And Mrs. Regan, Mr. Regan, Officer Furlong and even the defendant testified that the street lights were on during the pursuit and apprehension of the defendant. (Transcript pp. 40, 98, 136.)

Trial court opinion at p. 7. The jury accepted this evidence of nighttime, and we believe the evidence was sufficient to establish appellant’s actions occurred at night.

Accordingly, we affirm.

      . 18 Pa.C.S.A. § 5506, Loitering and Prowling at Nighttime, provides: Whoever at nighttime maliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor of the third degree.

      . Commonwealth v. Brown, 20 Chest.Law R. 253 (1972), noted:
      To constitute the crime [of loitering and prowling at nighttime] there must be the concurrence of the following elements and circumstances: (1) there must be a loitering and prowling; (2) it must be done maliciously; (3) the act must occur around a dwelling house or other place used wholly or in part for dwelling or living purposes; (4) the place so used must belong or be occupied by another; (5) it must be done at nighttime.

        Id. at 256.

      . “Prior to the trial, the parties stipulated to defense exhibit A-l, a document from the United States Naval Observatory stating that sunrise on September 24, 1985, was at 6:50 a.m." Trial court opinion at p. 2.


author: CIRILLO, President Judge:

text:
    518 A.2d 579
    COMMONWEALTH of Pennsylvania, Appellant, v. John E. ARMSTEAD, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1986.
    Filed Dec. 4, 1986.

      Leonard Deutchman, Assistant District Attorney, Philadelphia, for Com., appellant.
    Jeffery P. Shender, Assistant Public Defender, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County discharging the defendant-ap-pellee, John Armstead, on the grounds that the Commonwealth failed to comply with Pa.R.Crim.P. 1100. We reverse.

The Commonwealth filed a criminal complaint against the appellee on November 3, 1982, charging him with burglary and attempted theft. Under the 180 day period mandated by Rule 1100, appellee’s mechanical run date was May 2, 1983. The run date is the date by which the Commonwealth must bring a defendant to trial under Rule 1100. See Pa.R.Crim.P. 1100. Appellee was given a trial date of January 12, 1983 which was later relisted, first to February 9 and then to April 12. The relisting became necessary when the State Legislature failed to fill certain judicial vacancies. The appellee was adjudged incompetent to stand trial on April 12. He was not adjudged competent to stand trial until July 1, 1983 when the matter was continued to October 21, 1983 and marked MUST BE TRIED. The Commonwealth was unable to proceed to trial on October 21, 1983 due to the unavailability of a Commonwealth witness and a continuance was granted to October 24. On that date a Rule 1100 hearing was held and the defendant was dismissed.

The court determined that the Commonwealth had not brought the appellee to trial within 180 days. The trial judge held that once the defendant was declared competent on July 1, he became available for trial. Therefore, the court reasoned that the period between July 1 and October 21 must be included for Rule 1100 purposes, meaning that the Commonwealth exceeded the permissible run date by several months.

The Commonwealth presents two issues on appeal: (1) whether the period of unavailability attributable under Rule 1100 to a defendant declared incompetent to stand trial extends only to the date he is declared competent or extends to the next available trial date; and (2) whether judicial unavailability caused a delay from November, 1982 to April 12, 1983, thereby tolling the 180 day period under Rule 1100.

Under the Pennsylvania Rules of Criminal Procedure, the Commonwealth must bring an accused to trial within 180 days of the filing of a criminal complaint against him. The Commonwealth may only try a defendant beyond the 180 day period if the period of time exceeding 180 days was automatically excludable under the Rule or was excluded by virtue of a valid court order. See Pa.R.Crim.P. 1100. In the instant case, the Commonwealth asserts that even if the 180 day period was running from November 3 to April 12, it was tolled from April 12 to October 21 because of the appellee’s unavailability. Appellee argues that he was only unavailable for trial from the date he was adjudged incompetent, April 12, to the date he was found competent, July 1. Therefore, the 180 day period restarted on July 1, the date he again became available. The Commonwealth agrees that appellee was unavailable from April 12 to July 1. However, they claim that the appellee should also be considered unavailable from July 1 until the next available trial date which they assert as October 21. The Commonwealth argues that the period to October 21 encompasses the full amount of delay caused by the appellee’s unavailability. We agree with the Commonwealth.

It is well settled that any delay caused by the unavailability of a defendant is excluded from computation of the Rule 1100 period. Commonwealth v. Colon, 317 Pa.Super. 412, 424, 464 A.2d 388, 395 (1983). However, this Court has consistently distinguished between a period of unavailability and the delay caused by that unavailability. In Colon, we held that it is the latter time period which is excludable under the Rule. “If the unavailability results in an actual delay in the proceedings, that delay is automatically excluded.” Id., 317 Pa.Superior Ct. at 425, 464 A.2d at 395. See also Commonwealth v. Bell, 328 Pa.Super. 35, 44, 476 A.2d 439, 444 (1984) (defendant’s unavailability may cause a delay greater than the actual period of unavailability and such entire period may be excluded); Commonwealth v. Perry, 296 Pa.Super. 359, 362, 442 A.2d 808, 810 (1982) (period of delay not limited to period of unavailability).

Appellee contends that he was available for trial on July 1 when he was adjudged competent and the Rule 1100 period should start on that date. However, this assertion ignores the applicable precedent cited above. The key inquiry is not the period of a defendant’s unavailability but the period of delay caused by that unavailability. Appellee cites Commonwealth v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1980) as contrary authority. In Fisher, the defendant was adjudged incompetent to stand trial for a period of 193 days. The defendant was then adjudged competent for trial though he was committed to a mental hospital for a period encompassing 212 days. The defendant argued that he was available for trial during that 212 day period and on appeal this Court agreed. Id., 283 Pa.Superior Ct. at 374, 424 A.2d at 511. However, the issue in Fisher was when did the defendant become “available” for trial. The case does not address whether excludable delay under Rule 1100 is limited to the period of unavailability. Therefore, it is inapplicable to appellee’s argument. As shown above, we have consistently held that in deciding when the Rule 1100 period restarts, courts must determine the extent of delay caused by the defendant’s unavailability.

In another case, also captioned Commonwealth v. Fisher, 334 Pa.Super. 449, 483 A.2d 537 (1984), we held that the actual delay caused by a defendant’s unavailability includes the period of time from the date of his availability until “the earliest practicable trial date____” Id., 334 Pa.Superior Ct. at 458, 483 A.2d at 541-42. In the case at bar, the Commonwealth claims that October 21 was the earliest practicable trial date. In support thereof, the Commonwealth presents the Quarter Sessions file marked MUST BE TRIED with a relisting date of October 21. In Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983), we held that uncontested notations in the court record are sufficient to prove the earliest possible trial date. Id., 315 Pa.Superior Ct. at 551, 462 A.2d at 729. In this case, the uncontested court record shows that the earliest possible trial date was October 21. Therefore, the Rule 1100 period was tolled from April 12 to October 21 because that was the actual delay caused by the defendant’s unavailability. On October 24, when the court dismissed the charges against appellee, the 180 day period still had several weeks left to run. Thus, the trial court’s order was in error and we must reverse.

Because of our disposition of this issue, it is unnecessary for us to discuss the second issue presented by the appellant. However, we must note that the appellant failed to raise this issue in the trial court and therefore, has not preserved it for appeal. Commonwealth ex rel. Loveday v. Myers, 422 Pa. 483, 487, 222 A.2d 725, 728 (1966).

Order reversed and remanded for further proceedings in compliance with this opinion. Jurisdiction relinquished.


author: POPOVICH, Judge:

text:
    518 A.2d 582
    Warren M. COHEN and Adele Cohen, Appellants, v. Harvey BLANK and Joel Cassway, Ind. and T/A Perot Street Group, and Mary McCullum, Ind. and T/A E.J. Bulman Realty.
    Superior Court of Pennsylvania.
    Argued March 11, 1986.
    Filed Dec. 4, 1986.

      Fred Lowenschuss, Philadelphia, for appellants.
    Barry J. Goldstein, Philadelphia, for appellees.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which granted judgment notwithstanding the verdict in favor of appellees-defendants, Harvey Blank and Joel Cassway, who sold a townhouse to appellants-plaintiffs, Warren Cohen and his spouse, Adele Cohen. We must reverse and remand for the reasons herein stated.

Appellants raise the following issues: (1) whether the trial court erred in entering judgment notwithstanding the verdict because the appellants presented documentary and testimonial evidence that they reasonably relied upon appel-lees’ representations that the parking space was included in the sale of the property, the appellees’ own real estate agent believed and intended that the parking space was to be conveyed, and appellees never informed the appellants that the parking space would not be included as advertised; (2) whether the trial court improperly invaded the province of the jury in granting judgment notwithstanding the verdict for the reasons that the jury’s verdict was “against the weight and sufficiency of the evidence”; and (3) whether appellants should have been entitled to receive prejudgment interest, additional damages, and counsel fees because the evidence established that appellees placed a specific value on the parking space in question and because appellees fraudulently failed to convey the space to appellants on a specific date.

The record establishes the following set of facts which were summarized by the trial court:

Mr. and Mrs. Cohen saw an advertisement in the newspaper offering 2334 Perot Street with a parking space for sale for $130,000. (N.T. p. 69) The house fronts on Perot Street and goes straight through to Olive Street. The parking lot was not contiguous to the house and has an Olive Street address. The Cohens went to see Mrs. McCullum, employed by Bulman Realty, the brokers for the property. Mrs. McCullum told the Cohens that parking was included. (N.T. p. 92) The plaintiffs’ first offer was for $100,000 and their second offer of $110,000 was accepted. (N.T. p. 75).

The agreement of sale only listed the street address for the house. The agreement of sale was drawn up by the broker, Mrs. McCullum. (N.T. Day II, p. 52) The agreement of sale was reviewed by the Cohens’ attorney. (N.T. p. 89) No plot plan or drawing was attached to the agreement of sale. Mrs. Cohen discussed the agreement of sale for one hour with her attorney and told him that parking was included in the purchase. (N.T. p. 89) The attorney for the Cohens never inspected or visited the property. (N.T. p. 92)

There was no testimony that Mrs. Cohen ever discussed what was included in the purchase with the seller. She did testify that parking was only discussed with the broker. (N.T., Day II, p. 92)

Mr. Cassway, representing the sellers, the Perot Street Group (a partnership between Joel Cassway, Harvey Blank, Robert Cassway, and Frederick Albert), used his title insurance company to order the real estate description, which he gave to the buyers. (N.T. p. 165) The Cohens met with their attorney and he drew up the deed to the property. (N.T. p. 93) The attorney for the Cohens used the information provided by the title insurance company to prepare the deed. (N.T. p. 13) The deed did not contain either a separate address for the parking space nor did it contain more than one set of metes and bounds for the property. (N.T. p. 165)

The settlement took place on July 31, 1980 and lasted for approximately five hours. (N.T. p. 134) Although many things were discussed at settlement (i.e. repairs to be made and completed, etc.) there was no testimony from either the buyers or the sellers that parking was ever discussed at the settlement table.

The seller testified that when he signed the agreement of sale he believed that he was not selling the parking. (N.T. p. 148, 150) The seller explained that when the first townhouse of these three sold, the agreement of sale for that property included specific language that two parking spaces were included. (N.T., Day II, p. 163, 181) As a result, the seller believed that because no parking space was mentioned in this agreement, that it was not included. In addition, the seller and the broker both testified that they never discussed whether parking was included in this transaction. (N.T., Day III, p. 54)

This mix-up with the parking space was discovered approximately two months after the sale of 2334 Perot Street. Mrs. McCullum testified that during a conversation with Mr. Cassway about the sale of the remaining house that he said, “I can’t believe that we can’t sell this house with all these things and two parking spaces.” (N.T., Day III, p. 61) Mrs. McCullum said, “You don’t have two parking spaces ... you really have one parking space.” (N.T., Day II, p. 61) To that Mr. Cassway responded, “The Cohens didn’t buy the parking space.” (N.T., Day III, p. 61) They then had a long discussion about the problem and what each believed about the parking space.

In summary, the buyer and the broker thought the parking space was included but the seller did not think parking was sold in the transaction. The jury listened to the testimony about the transaction and decided that the seller was aware that the buyers expected to get the parking space.

Subsequently, the jury returned a verdict in favor of appellants in the amount of $10,000. The trial court granted judgment notwithstanding the verdict for the reason that “there was no evidence presented that the seller Cassway had actual knowledge that the buyers expected to get the parking space.” Trial Court’s Opinion at 5. This appeal followed.

The standard of review which must be applied has been set forth in the following manner:

Our standard of review is settled. A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict. Steward v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970). In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, is considered in the light most favorable to the verdict winner. Miller v. Checker Cab Co., 465 Pa. 82, 348 A.2d 128 (1975).
Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 349-51, 414 A.2d 100, 103 (1980). Accord Lokay v. Lehigh Valley Co-op Farmers, Inc., 342 Pa.Super. 89, 94-95, 492 A.2d 405, 407 (1985).

According to the trial court, the appellees, the sellers, had to have actual knowledge of the representations which were made by the broker in order to establish liability. This statement of the law, however, appears to be an incorrect one.

The case of Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 555, 499 A.2d 282 (1985) sheds some insight into this case. In Aiello, a young married couple was interested in purchasing real estate on which the couple intended to build a home and to subdivide the remainder of the land. The couple, appellants in that case, contacted Ed Saxe Real Estate, Inc. who assigned Jones, a real estate sales agent, to assist the Aiellos. The Aiellos became interested in an 87 acre parcel of property which was shown to them by Jones and which was owned by a Mr. Lystad. The Aiellos asked Jones whether the property was suitable for a sewage disposal system. Jones assured the couple that he was familiar with the soil types and that the soils were good and also assured them that the land was suitable for a conventional sewage system.

Based upon these representations, the couple entered into a sales agreement and purchased the 87 acre tract. A closing was held, and a deed was executed and delivered to the Aiellos. Subsequently, the Aiellos conducted their own tests and discovered that the property was unsuitable for any type of sewage system. Additionally, the Aiellos discovered that a prior sales agreement which had been negotiated by Saxe had not been consummated due to the failure to pass the percolation tests. Our supreme court stated that “Saxe’s scienter of his agent’s misrepresentation is not necessary in order to hold Saxe liable to Appellants.” Id.

Our Supreme Court also elaborated and said:

“Few legal propositions have been more thoroughly discussed by our Court than those concerning principals and their agents. Out of that considerable body of case law emerges a well-defined rule concerning the vicarious liability of a principal for the misrepresentations of his agent, and the public policy underlying it.

“These cases instruct us that a principal is liable to third parties for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances and misfeasances of his agent committed within the scope of his employment even though the principal did not authorize, justify, participate in or know of such conduct or even if he forbade the acts or disapproved of them, as long as they occurred within the agent’s scope of employment. Bachman v. Monte, 326 Pa. 289, 192 A. 485 (1937); Freedman v. Providence Washington Ins. Co., 182 Pa. 64, 37 A. 909 (1897); DeTurck v. Matz, 180 Pa. 347, 36 A. 861 (1897); McNeile v. Cridland, 168 Pa. 16, 31 A. 939 (1895); Independent Bldg. & Loan Assn. v. Real Estate Title Ins. & Trust Co., 156 Pa. 181, 27 A. 62 (1893); Griswold v. Gebbie, 126 Pa. 353, 17 A. 673 (1889); Brooke v. New York, L.E. & W.R.R., 108 Pa. 529,1 A. 206 (1885); Erie City Iron Works v. Barber and Co., 106 Pa.. 125 (1884); Custar v. Titusville Gas & Water Co., 63 Pa. 381 (1869); Shelhamer v. Thomas, 7 Serg. & R 106 (1821); Phoenix Insurance Co. v. Pratt, 2 Binn. 308 (1810); see also, Restatement of Agency, §§ 257, 258.

“This rule of liability is not based upon any presumed authority in the agent to do the acts, but on the ground of public policy, that it is more reasonable that when one of two innocent persons must suffer from the wrongful act of a third person, that the principal who has placed the agent in the position of trust and confidence should suffer, rather than an innocent stranger. Erie City; Brooke; Griswold; Cairns v. Pepper, 133 Pa. 114, 19 A. 336 (1890); Haworth v. Truby, 138 Pa. 222, 20 A. 942 (1890); Independent B & L Association; McNeile; DeTurck; Brooke; Bachman.

“This result can be reached similarly on the familiar ground that when an agent exceeds his authority, his principal cannot benefit of his act and at the same time repudiate his authority. He must take the benefit to be derived from the transaction subject to his agent’s fraud. Erie; Gris-wold; Freedman; McNeile; Williams v. Kerr, 152 Pa. 560, 25 A. 618 (1893); Wheeler v. Wilson Mfg. Co. v. Aughey, 144 Pa. 398, 22 A. 667 (1891); Penn Natural Gas Co. v. Cook, 123 Pa. 170, 16 A. 762 (1889). Hughes v. First National Bank, 110 Pa. 428, 1 A. 417 (1885); Jones v. National Bldg. Assn., 94 Pa. 215 (1880); Mundorff v. Wickersham, 63 Pa. 87 (1869); Musser v. Hyde, 2 Watts & S, 314 (1841).

“Superior Court’s reliance on its line of cases (Shane v. Hoffmann, 227 Pa.Superior Ct. 176, 324 A.2d 532 (1974); Littler v. Dunbar, 166 Pa.Superior Ct. 271, 70 A.2d 365, reversed on other grounds, 365 Pa. 277, 74 A.2d 650 (1950)), which were cited as authority for the proposition that scienter is required on the part of the principal at the time the agent makes the misrepresentation were wrongly decided and are based on misreadings of our earlier cases. In Littler, a case involving an action in fraud and deceit brought by purchasers of real estate agent against the real estate and his broker, it is true that we approved Superior Court’s conclusion that proof of scienter on the part of the principal was essential to finding liability against the principal, but the conclusion was based on a misreading of our earlier cases, Keefe v. Sholl, 181 Pa. 90, 37 A. 116 (1897) and Freyer v. McCord, 165 Pa. 539, 30 A. 1024 (1895). Both those cases in turn refer back to Griswold v. Gebbie, 126 Pa. 353, 17 A. 73 (1889), as authority for the proposition that scienter of the misrepresentation is required and here lies the source of the problem.

“Griswold involved a suit brought by purchasers of real estate (Mr. and Mrs. Gebbie) against the grantor (Mrs. Griswold) for the fraudulent misrepresentations of her brother-in-law, Mr. John Griswold, her agent. These statements induced the Gebbies to purchase Mrs. Griswold’s property. At Mr. Griswold’s direction, the property was advertised by circular as consisting of nearly seven acres and when the Gebbies viewed the property, Mr. Griswold verified to them that the property consisted of seven acres. Based on his representations, the Gebbies purchased the property for $23,000.00.

“Nearly five years after the Gebbies purchased the property, a survey of the land became necessary and the true acerage was determined to be 4.2 acres. The Gebbies brought suit against Mrs. Griswold, for her brother-in-law’s misrepresentation and were successful, receiving a verdict in their favor for $3,640.00.

“Mrs. Griswold appealed to this Court arguing that there was no evidence showing that Mr. Griswold’s statements were made within the scope of his authority, as her agent, or that his statements were sufficient to show that Mr. Griswold knew the statements to be,false or deceitful. In rejecting her claims, the Court, speaking through Mr. Justice Mitchell, made clear that scienter must not only be alleged, but proved. But we there were referring to the requirement that the agent’s knowledge that his statements were false or recklessly asserted in ignorance of fact had to be established. It was scienter of the agent and not the principal that was crucial. Accordingly, it was stated that ‘scienter must not only be alleged, but proved, and the jury must be satisfied that the defendant (agent) made a statement knowing it to be false, or with such conscious ignorance of its truth, as to be equivalent to a falsehood.’ (Emphasis added.) Griswold, 126 Pa. at 363, 17 A. 73.

“We specifically found untenable Mrs. Griswold’s argument that she could not be liable for the statements of her agent:

Where, as here, the misstatement is made by advertisement, and by descriptive circular, is repeated at least twice orally in response to the direct question of the intended purchaser, and is altogether unexplained by the person making it, though his principal and those connected with him in the transaction are shown to have been absolutely ignorant on the subject, we cannot say that there was not a prima facie case to go to the jury. Griswold, 126 Pa. at 365, 17 A. 73. (Emphasis added).

“In so ruling, the court was only reaffirming the general rule that a principal is responsible for the misrepresentations of his agent made within his authority. In Freyer and Keefe, however, Griswold was misapplied and recovery against the principals was denied because proof of their knowledge of their agent misrepresentations was lacking. As can be seen, Griswold did not require scienter on the part of the principal and it follows then that Freyer, Keefe and those cases citing Freyer and Keefe, were wrongly decided and are now expressly disapproved.

“Today we reaffirm the longstanding and widely held rule of law that a principal is liable to innocent third parties for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances of his agent committed in the course of his employment,[*] although the principal did not authorize, justify or participate in, or indeed know of, such misconduct, or even if he forbade the acts or disapproved of them.[**]

“To hold otherwise is to violate public policy and permit the person who held out his agent as worthy of trust and confidence, to escape liability for his agent’s deceits and frauds, while at the same time reaping the fruits of his agent’s fraud, all at the expense of an innocent third party. Such a holding would be contrary to natural justice and common honesty.[***]

[*] The following cases from our sister states stand for the proposition that principals are bound by their agents’ misrepresentations made within the scope of their employment:

Alabama, Brennen v. Kent, 206 Ala. 561, 90 So. 790 (1921); Arkansas, Vaught v. Paddock, 98 Ark. 10, 135 S.W. 331 (1911); Connecticut, Kiss v. Kahm, 132 Conn. 593, 46 A.2d 337 (1946); Delaware, Webster v. Palm Beach Ocean Realty Co., 16 Del.Ch. 15, 139 A. 457 (1927); Florida, Phifer v. Steenburg, 66 Fla. 555, 64 So. 265 (1914); Georgia, Puckett v. Reese, 203 Ga. 716, 48 S.E.2d 297 (1948); Hawaii, Wong Chan v. Ah Yong, 9 Haw. 346 (1893); Idaho, Oregon Mortgage Co. v. Renner, 96 F.2d 429 (1938) (CA 9th) Idaho; Kentucky, Railey v. Roberts, 33 Ky.L.R. 221, 109 S.W. 903 (1908); Minnesota, Lang v. Merbach, 96 Minn. 431, 105 N.W. 415 (1905); Mississippi, Alexander v. Meek, 132 Miss. 298, 96 So. 101 (1923); Montana, McCarty v. Lincoln Green, Inc., 620 P.2d 1221 (1980, Mont.); Nebraska, Hoock v. Bowman, 42 Neb. 80, 60 N.W. 389 (1894); Nevada, Bank of Nevada v. Butler Aviation, 96 Nev. 763, 616 P.2d 398 (1980); New Jersey, Chapin v. Kreps, 106 N.J.L. 424, 147 A. 398 (1929); North Carolina, Ebbs v. St. Louis Union Trust Co., 199 N.C. 242, 153 S.E. 858 (1930); Oklahoma, Howe v. Martin, 23 Okla. 561,102 P. 128 (1909); Tennessee, Caughron v. Stinespring, 132 Tenn. 636, 179 S.W. 152 (1915); Utah, Dugan v. Jones, 615 P.2d 1239 (1980); Vermont, Greenough v. U.S. Life Ins. Co. of City of New York, 96 Vt. 47, 117 A. 332 (1921); West Virginia, Johnson v. Norfolk and W. Ry. Co., 82 W.Va. 692, 97 S.E. 189 (1918); Wyoming, Wilson v. Rogers, 1 Wy. 51 (1872).

[**] These cases from our sister states like the case sub judice hold that a principal is responsible for his agents’ misrepresentations regardless of the principal’s knowledge that the statements had been made:

California, Newcomb v. Title Guarantee & Trust Co., 131 Cal.App. 329, 21 P.2d 456 (1933); Illinois, Handelman v. Arquilla, 407 Ill. 552, 95 N.E.2d 910 (1950); Kansas, Rush v. Leavitt, 99 Kan. 498, 162 P. 310 (1917); Louisiana, Henderson v. Western Marine & Fire Ins. Co., 10 Rob. 164 (1845) (LA); Maryland, Tome v. Parkersburg Branch R. Co., 39 Md. 36 (1873); Massachusetts, Howe v. Johnson, 236 Mass. 379, 128 N.E. 634 (1920); Michigan, People v. Genther, 218 Mich. 289, 187 N.W. 241 (1922); Missouri, Laird v. Keithley, 201 S.W. 1138 (Mo.) (1918); New Mexico, Thrams v. Block, 43 N.M. 117, 86 P.2d 938 (1938); Ohio, McMahon v. Spitzer, 29 Ohio App. 44, 163 N.E. 37 (1928); Oregon, Copeland v. Tweedle, 61 Or. 303, 122 P. 302 (1912); South Dakota, Rasmussen v. Reedy, 14 S.D. 15, 84 N.W. 205 (1900); Texas, Stowe v. Wooten, 62 S.W.2d 67 (Tex.Com.App.) (1933); Virginia, Jefferson Standard Life Ins. Co. v. Hedrick, 181 Va. 824, 27 S.E. 198 (1943); Wisconsin, Law v. Grant, 37 Wis. 548 (1875).

[***] Other states which have adopted this principle include:

Alaska, Miller v. Sears, 636 P.2d 1183 (1981); Arizona, Light v. Chandler Improvement Co., 33 Ariz. 101, 261 P. 969 (1928); Colorado, Mayo v. Wahlgreen, 9 Colo.App. 506, 50 P. 40 (1897); Indiana, Wolfe v. Pugh, 101 Ind. 293 (1885); Iowa, Ellison v. Stockton, 185 Iowa 979, 170 N.W. 435 (1919); Maine, Rhoda v. Annis, 75 Me. 17 (1883); New Hampshire, Concord Bank v. Gregg, 14 N.H. 331 (1843); New York, Bennett v. Judson, 21 N.Y. 238 (1860); North Dakota, Bunting v. Creglow, 40 N.D. 98, 168 N.W. 727 (1918); Rhode Island, Cohen v. Goldman, 85 R.I. 434, 132 A.2d 414 (1957); South Carolina, Byrn v. Walker, 275 S.C. 83, 267 S.E.2d 601 (1980); Washington, Nelson v. Title Trust Co., 52 Wash. 258, 100 P. 730 (1909).” Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. at 558-563, 499 A.2d at 285-288.

In the instant case, it is undisputed that the real estate agent, Mary McCullum, had represented to the appellants, the buyers, that the parking space was to be included along

with the sale of the townhouse. The record is clear on this point when the real estate agent testified as follows:

[Appellant’s Attorney]
Q. Now, isn’t it true at all times you represented to the Cohens that parking was included with 2334 Perot Street?
[McCullum]
A. Yes.
Q. And isn’t it true that at all times, you were led to believe by Mr. Cassway and his partners that parking was included with 2334 Perot Street?
A. At all times, I believed that was the case, yes.
Q. And isn’t it true that you prepared the agreement of sale, that parking was included in that agreement of sale?
A. Yes.
Q. And isn’t it true that you went to settlement and at the time of settlement, believed that the Cohens were getting parking?
A. Yes.
Q. And isn’t it true that Mr. Cassway — or neither Mr. Cassway nor any of his partners ever suggested to you before settlement that parking was not going to be included? They never told you that?
A. No, they didn’t.
Q. And they never told you they were going to withhold transferring parking, did they?
A. No.
Q. And isn’t it true it came as a shock to you a month or two or so later, after the settlement and after the Cohens moved in, that Mr. Cassway now wanted to charge $10,000 for parking?
A. I was surprised that the Cohens had not been deeded the parking.
Q. And isn’t it true that it wasn’t until several months after settlement, until after the Cohens moved in, that Mr. Cassway even suggested to you that he withheld parking or that parking was not included?
A. I found out sometime after their settlement that parking was not included.
Q. Now, Mr. Cassway was at settlement; is that correct?
A. Yes.
N.T. 3/26/84 at 13-14.

On these facts, a jury could reasonably conclude that the agent was negligent or otherwise harbored under a mistake which was within the scope of her authority and which induced the appellees to purchase the property. There is no question that the real estate agent was hired by the sellers to show the property.

Additionally, we recognize that

Extrinsic evidence is generally admissible for the purpose of showing that by reason of a mutual mistake, a written instrument does not truly express the intention of the parties. McFadden v. American Oil Company, 215 Pa. Super. 44, 52, 257 A.2d 283, 287 (1969).

In this case, the trial court’s granting of a judgment notwithstanding the verdict was improper because, contrary to the trial court’s theory, proof of scienter on the part of the principal at the time of an agent’s misrepresentation is not required to hold the principal liable for damages. Aiello v. Ed Saxe Real Estate, Inc., supra.

Because final judgment was not entered on the jury’s verdict, we must remand the matter. At the trial court level, the court did not address the questions which were raised by appellants concerning the damages issue because of its finding that scienter by the principal was required. Because we have concluded that this conclusion by the trial court was in error, we remand for the trial court to consider the appellants’ remaining arguments. The judgment n.o.v. entered by the trial court is reversed, and the matter is remanded to the trial court to consider the remaining issues in appellants’ post-trial motions.

Jurisdiction is relinquished.


author: ROBERTS, Judge:

text:
    518 A.2d 588
    Carol Ann E. KOPP v. Robert C. TURLEY and Robert Charles Turley, Jr. Appeal of Robert C. TURLEY.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Dec. 10, 1986.

      Harry R. Mayer, Drexel Hill, for appellant.
    Gail M. Whitaker, Chester, for appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   ROBERTS, Judge:

This is an appeal from an order requiring appellant Robert C. Turley to continue to pay child support for his 19-year-old son. The primary question presented is whether the duty to support a college-age child continues even though the child attends a commercial art school rather than a college. On this record, the trial court correctly determined that appellant must continue his support payments. Accordingly, we affirm the order of the trial court.

Appellee Robert Charles Turley, Jr. was born in December, 1966. He has lived with his mother, appellee Carol Ann E. Kopp, since her divorce from appellant in 1971. Appellant is presently under a consent order to pay $40.00 a week for the support of his son. This controversy arose after Robert’s high school graduation in May, 1985, when appellant filed a petition to terminate the support order, which was denied. Appellant appeals from the denial of his petition and the order directing the continuance of the payments.

The record establishes that Robert was tested by a school psychologist in August of 1981. It was then determined that he was a learning disabled youngster with a deficiency in language skills, but possessing average to above average non-verbal skills. The psychologist testified that Robert was tested in the commercial art area, after which it was apparent that Robert showed consistent strength in visual motor skills. The trial court accepted the psychologist’s conclusion that Robert could successfully complete a course of education at a commercial art school, and that he could become gainfully employed in that field. Since his graduation from high school, Robert has been attending the Hussian School of Art in Philadelphia.

In Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 795 (1985), this court restated the standard of review applicable in child support cases:

On appeal, a trial court’s child support order will not be disturbed unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award. Commonwealth ex rel. Robinson v. Robinson, 318 Pa.Super. 424, 465 A.2d 27 (1983); Downie v. Downie, 314 Pa.Super. 548, 461 A.2d 293 (1983). An abuse of discretion is not “ ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Boni v. Boni, 302 Pa.Super. 102, 109, 448 A.2d 547, 550 (1982) (citation omitted); Commonwealth ex rel. Darling v. Darling, 300 Pa.Super. 62, 445 A.2d 1299 (1982). Moreover, in Lederer v. Lederer, 291 Pa.Super. 22, 24-25,

435 A.2d 199, 200-201 (1981) the court wrote:

It is settled law in Pennsylvania that in absence of an agreement to educate “a father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able a child may be, unless the father has sufficient estate, earning capacity or income to enable him to do so without undue hardship to himself.” Emrick v. Emrick, 445 Pa. 428, 430-431, 284 A.2d 682 (1971); Hutchison v. Hutchison, 263 Pa.Super. 299, 300, 397 A.2d 1218, 1219 (1979). However, a support order may be entered against a parent for a child’s college education, even in the absence of an agreement to support the child past the age of eighteen, as long as this obligation would not result in undue hardship to the parent. Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979).

Relying on this court’s decision in Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984), appellant argues that the duty of support extends only to a child attending a four year undergraduate college. Brown does not support appellant’s contention. In Brown the request for support was for a child who had already graduated from college and was attending law school. There the court held that the father was not obligated to contribute to his son’s expenses for his post-graduate education.

Brown does not limit the types of post-secondary education for which a parent may be compelled to provide support. Our cases do not stand for the proposition that a parent’s obligation to provide education expenses is dependent on whether the child attends college or a commercial art school. Rather, the determination is to be made on the basis of whether the child possesses the aptitude and the desire to successfully complete the course of studies the school provides. Lederer v. Lederer, supra; Commonwealth ex rel. Ulmer v. Somerville, 200 Pa.Super. 640, 190 A.2d 182 (1963).

Here, it is established that although Robert does not possess the skills needed to successfully complete college, he does possess ability in commercial art. The education that he is receiving at the Hussian School of Art will give him an opportunity for gainful employment that he might not otherwise have. Our decision in Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166, 481 A.2d 1358 (1984) supports this conclusion. In Stump, we held that a father was required to continue support payments so that his son could attend a private preparatory school. The court reasoned that since the child was not academically ready to proceed to college immediately following high school, the father was obliged to provide support for his son. There the court said:

While the Hyde School is not a college and is therefore in a different category of institution than the schools discussed in the afore cited cases, we believe that the principle enunciated in them applies to this case. That is, in Commonwealth ex rel. Ulmer v. Sommerville, supra, and the cases following it, our courts have recognized that children, even those over the age of eighteen years are entitled to financial support from their parents so that they may pursue education and prepare themselves for adulthood.

333 Pa.Super. at 172, 481 A.2d at 1361.

We agree with the trial court that Stump controls the outcome of this case. Hence, appellant’s contention that he is not required to provide support for his son while attending commercial art school cannot prevail.

Appellant also contests the finding of the trial court that a continuance of the support order will not place an undue hardship on him. The record establishes that appellant has an average net weekly pay of $367.00. He has weekly expenses of $251.00, which includes the $40.00 support payments. Thus, he is left with approximately $116.00 a week over and above his expenses. As such, it is clear that the trial court did not abuse its discretion in making this determination. Fee v. Fee, supra.

Order affirmed.

      . Appellant contends that the testimony of the school psychologist regarding appellee's learning disability was erroneously admitted. The witness was certified by the Department of Public Instruction as a public school psychologist. The witness’ testimony was based on several examinations of the boy while he was in high school. We agree with the trial court that this testimony was properly admitted.