author: CAVANAUGH, Judge:

text:
    448 A.2d 553
    COMMONWEALTH of Pennsylvania v. Jerry IVY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 6, 1981.
    Filed July 16, 1982.

      Louis Lipschitz, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and LIPEZ, JJ.
   CAVANAUGH, Judge:

Appellant Jerry Ivy was convicted by a jury of five counts of robbery, five counts of criminal conspiracy, and one count of possessing an instrument of crime. Post-verdict motions were denied and appellant was sentenced to consecutive terms of three to six years incarceration on each of the five robbery counts and concurrent terms of one to three years on each of the conspiracy charges. Sentence was suspended on the charge of possessing an instrument of crime. Appellant filed a timely appeal to this court. For the reasons discussed below, we vacate the judgment of sentence on four out of the five criminal conspiracy charges and affirm the remaining judgments of sentence.

At approximately 9:00 p.m. on April 2, 1979, appellant and two companions boarded a SEPTA bus at Hedge and Orthodox Streets in Northeast Philadelphia. The appellant grabbed the driver, James Carroll, in a headlock, put a gun to his throat and said, “Don’t move sucker. This is a stick-up.” Mr. Carroll raised his hands over his head and appellant stated, “Don’t move or I will blow your brains out.” While appellant held Mr. Carroll at gun point, his companions moved among the passengers collecting money and other possessions, threatening to have Mr. Carroll killed unless the passengers complied. Charles Donnelly, a passenger seated directly behind Mr. Carroll, refused to give up his wallet. Appellant, without releasing his hold on Mr. Carroll, reached over and placed the gun to Mr. Donnelly’s cheek, ordering him to give up the wallet or have his brains blown out. Mr. Donnelly then turned over his wallet. When they had completed the robbery, appellant and his two companions fled on foot.

Mr. Carroll proceeded approximately three blocks and then stopped a police car and informed the officers in it of the robbery. The police officers took descriptions of the robbers from several of the passengers. One of the passengers, Frederick Mongan, told the police that he had seen the robbers before in the neighborhood. He agreed to ride around the neighborhood with a police detective in order to search for the robbers. He did not see appellant at that time but he did identify one of the accomplices. While in the police car, Mr. Mongan was shown a number of photographs, but he was unable to identify anyone. The appellant’s picture was not among those shown to Mr. Mongan.

At approximately 10:30 p. m. the same evening, appellant was arrested on the basis of information received from an anonymous telephone caller. While appellant was waiting in the squad room at the police station, the bus driver and several of the passengers were brought in individually and asked if they could identify anyone. Three passengers, Frederick Mongan and John and Mary Korabik, identified appellant as the gunman in the robbery. Mr. Carroll, the bus driver, and Mr. Donnelly, the passenger who had a gun held to his cheek, did not make positive identifications at that time.

Following a pre-trial suppression hearing, the lower court granted appellant’s motion to suppress the identifications made at the police station as the product of an unnecessarily suggestive identification procedure. The suppression court refused, however, to suppress later in-court identifications, finding that they were independently based. At trial, Mr. Carroll, Mr. Donnelly, Mr. Morgan, and Mr. and Mrs. Korabik all positively identified the appellant as the gunman in the robbery.

Appellant first argues that the lower court erred in refusing to suppress the in-court identifications made by the five Commonwealth witnesses. He contends that the identifications were tainted by the suggestive pre-trial confrontation and had no independent basis. Because the suppression court ruled that the identification procedure which occurred at the police station was unnecessarily suggestive, the Commonwealth had a burden to establish by clear and convincing evidence that the witnesses’ in-court identifications had a basis independent of the police station confrontation before the in-court identifications could be admitted. Commonwealth v. Townsend, 280 Pa. Super. 155, 421 A.2d 452 (1980). In reviewing the suppression court’s determination that the in-court identifications did have an independent basis, “we consider only the Commonwealth’s evidence and so much of the evidence presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Townsend, id., 280 Pa.Superior at 158, 421 A.2d at 454. The factors to be considered in determining whether the in-court identification testimony of the five Commonwealth witnesses was based on their observations of the appellant while on the bus and was purged of any taint stemming from the police station confrontation are: (1) The witnesses’ opportunity to observe the criminal act; (2) any discrepancy between pre-confrontation descriptions and the appellant’s actual appearance; (3) any identification of anyone other than the appellant; (4) any failure to identify appellant; (5) the lapse of time between the robbery and the confrontation; (6) the witnesses’ degree of attention; and, (7) the degree of certainty in identifying the appellant. Commonwealth v. Townsend, id., 280 Pa.Superior at 159, 421 A.2d at 454.

The evidence presented at the suppression hearing established that all five of the Commonwealth witnesses had a good opportunity to observe the appellant during the bus robbery, which lasted for three to five minutes. The lighting on the bus was good, the appellant was not wearing any kind of mask which would have concealed his features, and all of the witnesses were within a few yards of appellant. Obviously the witnesses’ attention would have been focused on the three robbers during the course of the robbery, particularly on the appellant, since he was the one holding a gun. The confrontation at the police station took place only hours after the robbery. None of the witnesses ever identified anyone other than the appellant as being the gunman.

Notwithstanding appellant’s claim to the contrary, the record discloses that John and Mary Korabik both gave fairly detailed descriptions of the appellant within minutes of the robbery and these descriptions were similar to the appellant’s actual appearance. Mr. Mongan, while still on the bus, told police that he recognized the gunman as someone from his neighborhood. This lends support to a finding that he had a basis for identifying appellant independent of the police station confrontation. Commonwealth v. Johnson, 291 Pa.Super. 566, 436 A.2d 645 (1981). Furthermore, Mr. Mongan had already given a detailed description of appellant to police at the station house before the appellant was brought in. Mr. and Mrs. Korabik and Mr. Mongan all spontaneously identified appellant when they saw him at the police station, before they were asked by police if they could identify anyone and before conferring with each other. All three of them made positive identification statements to police while still at the station and none of them failed to identify appellant at any subsequent time. We conclude that the in-court identifications of these three witnesses clearly had a basis independent of the police station confrontation and were thus properly admitted.

Mr. Donnelly, the passenger who surrendered his wallet only after being threatened at gun-point, did not make a positive identification of appellant at the police station on the night of the robbery. He testified at the suppression hearing that when he was asked by a police detective on the night of the robbery whether he could identify anyone in the squad room, he replied, “I’m not positive. I think that I recognize the one man in there, but . . . I’ll have to say that I can’t recognize him positively.” He explained that he was too “shook up” the night of the robbery to make an identification but that a day or two later he “settled down” and “things started focusing” in his mind and he then felt that he could make an identification. He did, in fact, make a positive identification of appellant at the suppression hearing, at which time he testified that his identification was based on seeing appellant on the bus and not on seeing him at the police station or on any conversation he had at the police station with the other passengers.

Although Mr. Donnelly’s failure to identify appellant at the police station is a factor to be considered in determining whether his in-court identification has an independent basis, it is only one of several factors. In order to determine whether the Commonwealth has met its burden of proving an independent basis, a court must consider the totality of the circumstances, Commonwealth v. Fowler, 466 Pa. 198, 204, 352 A.2d 17, 20 (1976). We agree with the suppression court’s conclusion that the burden was met with regard to Mr. Donnelly’s identification. His failure to identify the appellant at the police station was brought out on cross-examination at the trial and could thus be considered by the jury in determining what weight to give his identification. Its admission was not improper.

The bus driver, Mr. Carroll, also failed to make a positive identification at the police station. Like Mr. Donnelly, he testified that after he went home and had time to think about the robbery, he became certain that he could identify the gunman and he did, in fact, identify appellant at the suppression hearing. However, Mr. Carroll admitted during cross-examination at the suppression hearing that he knew that several passengers had identified appellant at the police station and that this fact influenced him in making his identification. In spite of Mr. Carroll’s testimony that his later identification was based on seeing appellant on the bus and not on the confrontation at the police station, we feel that it would be difficult, if not impossible, to remove the taint of the improper police station confrontation in view of Mr. Carroll’s admission that he was influenced by the other witnesses’ police station identifications.

We find, however, that in view of the positive identifications made by four other witnesses, the admission of Mr. Carroll’s identification at trial was harmless error under Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). See Commonwealth v. Silver, 260 Pa.Super. 232, 393 A.2d 1239 (1978).

Appellant also claims that trial counsel was ineffective for failing to request a mistrial after objecting to a portion of the prosecutor’s closing argument. The objectionable statement occurred following the prosecutor’s reference to the anonymous phone call received by the police which led to appellant’s arrest. The prosecutor was apparently attempting to suggest to the jury that given the circumstances surrounding the phone call, they could infer that the caller had first or second-hand information about the appellant’s involvement in the robbery. After pointing out to the jury that at the time the phone call was received there had been no media coverage of the robbery, the district attorney said:

From the lack of any newspaper or other media involvement, what conclusion can you draw? I suggest that the conclusion that you could draw is that someone who heard or saw that incident or heard somebody say something about that incident, heard something and they—

Counsel for appellant objected at this point and the objection was sustained. The court then instructed the jury to ignore that portion of the argument.

Appellant argues that counsel’s objection was not sufficient and that he should have requested a mistrial. We do not agree. As we have stated on numerous occasions:

a new trial is not mandated every time a prosecutor makes an improper remark. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). To constitute reversible error the language must be such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility towards the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975).

Commonwealth v. Smith, 289 Pa.Super. 356, 433 A.2d 489, 495 (1981). The challenged statement in the instant case certainly does not fall in this category. Since the declaration of a mistrial would have been unwarranted, counsel was not ineffective for failing to request one.

Finally, appellant claims that he should have been convicted and sentenced on only one count of conspiracy, rather than five. The Commonwealth does not contest this claim. In fact, it acknowledges that “the multiple robberies of the passengers on this bus appear to have been the object of the same conspiratorial agreement or continuous conspiratorial relationship,” and that under the provisions of 18 Pa.C.S.A. § 903(c), appellant is guilty of only one charge of conspiracy. (Appellee’s brief at 3, nt 2). We agree. We therefore affirm the conviction of conspiracy and judgment of sentence on bill No. 206 and vacate the judgment of sentence on the four remaining counts of conspiracy.

Judgment of sentence on all counts of robbery and one count of conspiracy is affirmed. Judgment of sentence on the remaining counts of conspiracy is vacated.


source: Caselaw Access Project

author: BROSKY, Judge: WICKERSHAM, Judge,

license: Public Domain

text:
    448 A.2d 558
    Eric STEIN, a minor by his parents and natural guardians, Raymond Stein and Dolores A. Stein, his wife and Dolores A. Stein and Raymond Stein, her husband, in their own right v. James E. RICHARDSON v. The WASHINGTON HOSPITAL. Appeal of Eric STEIN, a minor by his parents and natural guardians, Raymond Stein and Dolores Stein, his wife. Eric STEIN, a minor by his parents and natural guardians, Raymond Stein and Dolores A. Stein, his wife and Dolores A. Stein and Raymond Stein, her husband, in their own right v. The WASHINGTON HOSPITAL v. James E. RICHARDSON. Appeal of Eric STEIN, a minor by his parents and natural guardians, Raymond Stein and Dolores Stein, his wife.
    Superior Court of Pennsylvania.
    Argued April 23, 1981.
    Filed July 16, 1982.

      Franklin E. Conflenti, Pittsburgh, for appellant.
    John W. Jordan, IV, Pittsburgh, for Richardson, appellee. Charles C. Keller, Washington, for Washington Hospital, appellee.
    Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, WICKERSHAM, BROSKY, WIEAND, JOHNSON, MONTEMURO, POPO-VICH, DiSALLE and SHERTZ, JJ.
   BROSKY, Judge:

Eric Stein appeals from the order of the trial court granting the preliminary objections of James Richardson, M.D., appellee, and The Washington Hospital, appellee, and granting a motion for judgment on the pleadings to the Hospital. The primary question involved in this case concerns the discovery rule as applied to the statute of limitations in medical malpractice cases and the burden upon the plaintiff to plead the nondiscoverability of his injury where the action is brought more than two years after the injury was inflicted. Eric Stein contends that prior to our decision in Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978) (hereinafter Acker), that the plaintiff was not so burdened. He argues that his case is a pre-Acker decision and that as such the trial court improperly held that his actions were barred by the statute of limitations. We affirm in part and reverse and remand in part the order of the trial court.

Raymond Stein and Dolores Stein commenced causes of action against Richardson and the Hospital by writ of summons in trespass on November 16, 1977 alleging that Richardson and the Hospital had negligently rendered medical care to their son, Eric Stein, on the day of and related to his birth. They claim the negligently rendered care resulted in cerebral trauma manifested in the form of cerebral palsy.

Raymond and Dolores Stein subsequently obtained new counsel who filed separate complaints on August 29, 1978 against Richardson and, on July 26, 1978, against the Hospital in which two counts were raised: one count seeking damages for the parents arising out of the alleged negligence and the second count seeking damages on behalf of Eric Stein arising out of alleged malpractice. Richardson and the Hospital each responded to their complaint by way of a preliminary objection, in the form of a demurrer, stating that all claims arose out of alleged injuries sustained by Eric Stein, who was barred from recovery by the applicable two-year statute of limitation. They contended that the injury must have been discovered or should have been discovered on or after July 26, 1976 and August 29, 1976, respectively, if Eric Stein’s claim was to prevail. The hospital also filed an answer and new matter raising the statute of limitation defense.

Raymond, Dolores and Eric Stein, collectively, subsequently filed preliminary objections contending: That it was apparent from the writ of summons filed by Raymond and Dolores Stein that the child was a party and therefore their actions and that of Eric Stein were not barred by the statute of limitations. They also asserted that Richardson had improperly raised the affirmative defense of the statute of limitations by not raising it as an affirmative defense in “new matter.” They at no time in their pleadings asserted that the injury was nondiscoverable until some date on or after July 26, 1976 or August 29, 1976.

The trial court consolidated the cases for argument on the motions presented in the foregoing pleadings and upon the Hospital’s motion for judgment on the pleadings. The court sustained Richardson’s and the Hospital’s preliminary objections and granted the Hospital’s motion for judgment on the pleadings. The court held that the action of Eric Stein was barred by the statute of limitations. This appeal by Eric Stein, alone, followed.

Several questions are raised on appeal. They are essentially: 1. Whether the trial court correctly decided that the statute of limitations had run in light of the unavailability of our decision in Acker at the time of argument before the trial court? 2. Whether the mandatory language of the Pennsylvania Rules of Civil Procedure required that the affirmative defense of statute of limitations be raised by new matter, therefore rendering the preliminary objections raised by Richardson and the Hospital improper? 3. Whether the trial court properly determined that the causes of action raised by Raymond Stein and Dolores Stein was a separate and distinct cause of action from that raised by Eric Stein? 4. Whether the lower court had any authority to dispose of the Hospital’s motion for judgment on the pleadings when outstanding preliminary objections continued to exist? 5. Whether the trial court’s order improperly dismissed the cause of action raised by the parents along with that raised by Eric Stein?

The first three claims raised by Eric Stein involve interrelated contentions all involving statute of limitations arguments. We will discuss Eric Stein’s first three claims as a group.

I.

Eric Stein contends that our decision in Acker established a more lenient interpretation of the statute of limitations in medical malpractice cases. He argues essentially, that prior to our decision in Acker that Pennsylvania courts required a plaintiff in a malpractice action to commence his action within two years of the date at which the injury was inflicted if the injury was discovered or should have been discovered within two years of the actual date of the injury. Eric Stein was born on December 5, 1975, his injuries were allegedly inflicted on that same day, thus, he would be obliged to commence his action prior to December 5, 1977 if he discovered or should have discovered the cause of his injury prior to December 5, 1977. Alternatively, if the injury was discovered or should have been discovered after December 5, 1977 then Eric Stein would have two years from the date of the discovery to bring his action. Eric Stein contends that the Acker decision of this court changed this analysis entirely and permitted the plaintiff two years from the date of the discovery of his injury without regard to when it was discovered. Thus, Eric Stein argues that because the Acker decision was not available for his use at trial that he quite logically did not plead that he discovered his injury on the date his parents filed their writs of summons in trespass, November 16, 1977 because, to have done so would have barred his claim which was not brought until 1978.

Eric Stein contends that the pre-Acker law in Pennsylvania was clearly stated in Judge Price’s dissenting opinion to the majority opinion in Acker in which Judge Price wrote:

The majority has adopted without qualification the “discovery” rule in applying the applicable statute of limitations. In so doing they have stretched the somewhat elastic rule of law heretofore applicable in Pennsylvania. Whether this stretching is beyond the breaking point of the elastic or not is, I suppose, ultimately for our Supreme Court. For now, however, I must dissent for to my view the elastic snapped early in my reading of the majority opinion.
Accepting for the purpose of this appeal fraud and concealment, active or passive, on the part of appellees and reasonable diligence or the inherently unknowable nature of the injury for the appellant, the fact remains, uncontroverted, that appellant discovered the injury on August 9,1973, a period of 15 months prior to the November 16, 1974 run date of the statute. The removal of the eye was some 13 months prior to the run date of the statute. I find no case in Pennsylvania that extends the statute under such circumstances. My reading convinces me that the present law of Pennsylvania permits extension of the statute only if the injury could not be discovered by reasonable diligence within the time period, or fraud and concealment covered the injury during the time period.

Acker v. Palena, supra, 260 Pa.Superior at 224-225, 393 A.2d at 1235. We believe Eric Stein has misinterpreted Judge Price’s view.

Judge Price stated in Donnelly v. DeBourke, 280 Pa.Super. 486, 492, 421 A.2d 826, 829 (1980):

It is true, as appellant notes, that in certain situations, the statute of limitations does not begin to run on the date injury-causing event occurs, but rather on the date the injury is or reasonably should have been “discovered.” These exceptional situations include medical malpractice cases, Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979), . . .

Thus it is clear that his view is that the statute commences to run when the injury is or should have been discovered. In Acker, Judge Price certainly took the position that the injury should have been discovered on the date that it was inflicted. His disagreement with the majority in Acker went to the facts in that case not to the principles upon which the discovery rule is based. The decision interpreting the discovery rule in medical malpractice cases have presented a consistent view for many years.

The “discovery rule” was adopted by our Supreme Court in Ayers v. Morgan, 397 Pa. 282, 289-290, 154 A.2d 788, 792 (1959) (hereinafter Ayers). It said:

Both the defendant and the lower court have apparently misevaluated the specific wording of the Act of June 24, 1895. It seems they regard the crucial words as reading: “Every suit * * * must be brought within two years from the time the act was committed.” The statute, however, says that the suit must be “brought within two years from the time when the injury was done.” The injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.

The “discovery rule” has been applied in numerous malpractice cases since Ayers. See: Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Wallace v. Horvath, 283 Pa.Super. 179, 423 A.2d 1047 (1980); Keating v. Zemel, 281 Pa.Super. 129, 421 A.2d 1181 (1980); Acker v. Palena, supra; Armacost v. Winters, 258 Pa.Super. 424, 392 A.2d 866 (1978); Grubb v. Albert Einstein Medical Center, 255 Pa.Super. 381, 387 Pa.Super. 480 (1978); Barshady v. Schlosser, 226 Pa.Super. 260, 313 A.2d 296 (1973) (HOFFMAN, J. Opinion in Support of Reversal).

The “discovery rule” as applied in Pennsylvania decisions is explained in Prince v. Trustees of University of Pennsylvania, 282 F.Supp. 832, 840-841 (E.D.Pa.1968):

The Pennsylvania Supreme Court has held that the statute of limitations in a personal injury malpractice case does not begin to run until the plaintiff or injured party either is aware or reasonably should be aware of the harm he has suffered. In Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), the rule was applied to a sponge left in the complainant’s abdomen during an ulcer operation. The source of pain which the complainant suffered was not discovered for nine years. In Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963), this “discovery” rule was extended to a wrongful death action resting on allegedly negligent diagnostic treatment.

In effect, the Pennsylvania “discovery” rule delays the accrual of the cause of action from the time of the defendant’s negligent conduct to a time when the injury caused by that conduct becomes known or knowable. It is, obviously, a rule intended to benefit the plaintiff. The fairness of the rule has been praised:

“Avoidance of the injustice which might result where the injury * * * is ‘inherently unknowable’ at the time of the defendant’s conduct would seem of greater moment than the desirability of respose and administrative expediency * * * [t]he burden on the courts probably would not be unduly increased, for the number of ‘inherently unknowable’ injuries would necessarily be small.” Developments in the Law: Statutes of Limitations, 63 Harv.L.Rev. 1177, 1204-5 (1950).
The rule has been approved by other courts. See, e.g., Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (silicosis); Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785, 791 (1963) (“The trend * * * has been toward * * * the ‘discovery rule’ ”); Agnew v. Larson, 82 Cal.App.2d 176, 185 P.2d 851 (1947).
The plaintiff claims that neither she nor her decedent had any knowledge of the dangerous effects of Thorotrast until the September 1963 date of the decedent’s admission to Salem County Memorial Hospital in New Jersey. In deciding upon defendants’ motion for summary judgment, we assume that allegation to be true. Applying Pennsylvania law, we conclude that the plaintiff’s personal injury cause of action did not arise until the alleged time of discovery in 1963.

The rule has been applied also in many other jurisdictions.

The test by which the time at which a discovery is made is determined by the following standard which we recently discussed in Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 96-97, 425 A.2d 428, 436 (1981), reversed on other grounds 496 Pa. 119, 436 A.2d 181 (1981).

There has been some dispute or confusion, as to the exact level of knowledge a plaintiff must have before the statute of limitations will start to run. Judge Harry TARIFF of the Court of Common Pleas of Philadelphia has recently set forth an excellent statement of the rule, as follows:
Ayers’ progeny have struggled primarily with the question of reasonableness of plaintiff’s conduct in attaining the appropriate level of cognitive knowledge which ultimately prompts a timely lawsuit. With the question of “reasonableness” as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitation period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.

We have held also, quite logically, that an injury which is initially discovered, but is not appreciated as such because of assurances by a physician that the injury will be completely remedied in time, will toll the statute of limitations. The statute will commence only to run once the plaintiff should discover that the injury is not reparable. Barshady v. Schlosser, 226 Pa.Super. 260, 313 A.2d 296 (1974) (HOFFMAN, Opinion in Support of Reversal), see also, Anthony v. Koppers, supra.

Thus, the decisional law in Pennsylvania since Ayers has consistently held that the statute of limitations does not commence to run until the plaintiff discovers or should have discovered his injury. Our decision in Acker did not work an expansion in the Pennsylvania court’s application of the “discovery rule” in medical malpractice cases. Eric Stein was obliged to bring his action within two years of the date of the discovery of his injury.

Accordingly, the dispute, herein, is entirely procedural. The question is: Should the trial court have sustained Richardson’s and the Hospital’s preliminary objections, and should the court have granted the Hospital’s motion for judgment on the pleadings, in light of the facts pleaded by Eric Stein regarding his discovery of his injury?

II.

In the Matter of D. L. S., 278 Pa.Super. 446, 448-449, 420 A.2d 625, 626 (1980), we said:

The hearing court’s disposition of preliminary objections is governed by Pa.R.C.P. No. 1028(c) which states: “The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise.” (emphasis added). Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899 (1974); Alumbaugh v. Wallace Business Forms, Inc., 226 Pa.Super. 511, 313 A.2d 281 (1973). When no issues of fact are raised, the court shall dispose of the preliminary objections as a matter of law on the basis of the pleadings alone. Northvue Water Co. v. Municipal Water & Sewer Authority, 7 Pa.Cmwlth. 141, 298 A.2d 677 (1972); 4 Standard Pennsylvania Practice ch. 13, § 19.

A demurrer admits all pleaded facts contained in the pleadings it addresses, as well as all reasonably deducible facts therefrom. It does not admit conclusions of law. Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 371 A.2d 178 (1976). It will be sustained where the plaintiff’s complaint indicates “on its face that the claim cannot be sustained. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); Hoffman v. Misericordia Hospital, 439 Pa. 501, 267 A.2d 867 (1970).” Dominski v. Garrett, 276 Pa.Super. 18, 23, 419 A.2d 73, 75 (1980). A case, however, should not be dismissed on preliminary objections except where the dismissal is clearly warranted and free from any doubt. Interstate Traveller Services, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, 486 Pa. 536, 406 A.2d 1020 (1979).

The standard of review which this court must apply in determining whether preliminary objections were properly sustained is found in Pennsylvania Liquor Control Board v. Ripistan Inc., supra, 472 Pa. at 42, 371 A.2d at 181:

To determine whether this preliminary objection was properly sustained, we must consider as true all “well-pleaded” material facts set forth in the PLCB’s complaint and all reasonable inferences that may be drawn from those facts. Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971).

We have held in Clouser v. Shamokin Packing Company, 240 Pa.Super. 268, 273, 361 A.2d 836, 839 (1976), that:

In determining whether a demurrer should be sustained and the complaint dismissed the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible: King v. U. S. Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951).

The standard by which we review a motion for judgment on the pleadings is identical to that which we use to review the sustaining of a demurrer. Engel v. Parkway Company, 439 Pa. 559, 266 A.2d 685 (1970); Clouser v. Shamokin Packing Company, supra; Enoch v. Food Fair Stores, Inc., 232 Pa.Super. 1, 331 A.2d 912 (1974).

Each complaint filed in the instant case contained the following information concerning the date at which Eric Stein’s injury was discovered or should have been discovered. They assert that the injury resulted from the negligent care given Eric Stein at birth, immediately following his birth and for some indefinite length of time thereafter. The complaints do not contain any facts which would indicate that the injuries were not discovered because of the absence of their physical manifestation. No facts from which the court could conclude that the Steins had been reassured as to their child’s condition by either Richardson or the Hospital, in a manner which would have delayed the discovery of Eric Stein’s injury until August 31, 1976 or sometime later, were asserted in the pleadings. Thus non-discoverability of the injuries was not pleaded.

Richardson responded to the complaint filed against him with preliminary objections in the form of a motion to strike. He asserted that the claim of Eric Stein arose out of alleged malpractice allegedly committed by Richardson during the period between March of 1975 and December of 1975. As such, he asserted that the complaint must be dismissed as it is barred by statute of limitations. Richardson then filed a demurrer to the complaint.

The Hospital responded to the complaint filed against it in similar fashion. Preliminary objections in the form of motion to strike and a demurrer were filed contending that Eric Stein’s complaint was barred by the statute of limitations. The Hospital also filed an answer to the complaint in which it denied the allegations raised in the complaint filed against it and raised the affirmative defense of statute of limitations in new matter. The Hospital then prayed that the cause of action brought against it be dismissed.

The Steins responded to Richardson’s preliminary objections in the following manner.

4. Denied as a conclusion of law. By way of further answer, plaintiffs aver that it was the obvious intention of this plaintiff’s then counsel to commence the instant action on behalf of the minor plaintiff. The defendant was well [sic] of this fact and as such the statute of limitations was tolled as to the minor plaintiff’s cause of action upon the filing of the aforesaid praecipe for writ of summons.
5. Denied as a conclusion of law. By way of further answer, plaintiffs aver that since the defendant was well aware of the minor plaintiff’s cause of action, the inclusion of a cause of action on behalf of the minor plaintiff in the complaint filed by the plaintiffs did not amount to an amendment at all, but merely reflected the natural intentions of plaintiff’s then counsel. Moreover, the defendant had full knowledge of the minor plaintiff’s injuries at the time of the commencement of this action and, therefore, no prejudice whatsoever resulted to the defendant by the filing of the complaint aforesaid.

In response to the Hospital’s new matter, the Steins contended that Eric Stein’s cause of actions was preserved by the filing of a writ of summons by Raymond and Dolores Stein on November 16, 1977.

In response to the Hospital’s preliminary objections, the Steins answered:

4. Denied as a conclusion of law. By way of further answer, the plaintiffs aver that it was plaintiffs’ then counsel’s obvious intention when commencing this lawsuit by praecipe to include a cause of action for the minor plaintiff and defendant was well aware of plaintiffs’ then counsel’s intention and of the minor plaintiff’s injuries and resultant cause of action, therefore, defendant is now estopped from asserting the bar of the statute of limitations to the minor plaintiff’s injuries and resultant cause of action, therefore, defendant is now estopped from asserting the bar of the statute of limitations to the minor plaintiff’s cause of action.
5. Denied as a conclusion of law. By way of further answer, the plaintiffs believe and aver that the parent plaintiffs’ cause of action is independent of the minor plaintiff’s cause of action and was timely filed and is, therefore, legally viable against this defendant.

The Steins then filed preliminary objections in response to the Hospital’s preliminary objections in which the Steins contended that the Hospital improperly pleaded the affirmative defense of statute of limitations by way of a preliminary objection. The Hospital raised the defense in its preliminary objections in the form of a demurrer and simultaneously filed it in new matter.

It is clear that Richardson’s pleadings were improper. Pennsylvania Rules of Civil Procedure require that the affirmative defense of statute of limitations be pleaded by way of new matter Pa.R.C.P. 1030 excepting where a nonwaivable statute is pleaded. Pa.R.C.P. 1017(b)(4). The applicable statute of limitations in the instant case is waivable and therefore must have been pleaded in new matter. Accordingly, we must reverse the decision of the trial court to dismiss Eric Stein’s complaint against Richardson and remand for proceedings consistent with this opinion. Ziemba v. Hagerty, 436 Pa. 179, 259 A.2d 876 (1969); Stoltzfus v. Haus, 234 Pa.Super. 46, 334 A.2d 738 (1975).

The Steins’ response to the Hospital’s preliminary objections and the Hospital’s new matter was little more than a general denial and as such an admission. Pa.R.C.P. 1045. Thus, in light of our decision that the affirmative defense of statute of limitations was properly pleaded by the Hospital, we must determine whether the Steins’ failure to present to the courts facts by which it could decide that the action brought by Eric Stein against the Hospital was not barred by the statute of limitations, that the action was so barred.

In Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 585, 407 A.2d 394, 396 (1979), we said:

The applicable rule of law is that a cause of action for malpractice does not accrue until discovery of the injury or at such time as the injury should reasonably have been discovered. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). The plaintiff’s pleadings, however, failed to aver that his discovery of injury had been other than simultaneous with or immediately after the performance of surgery. Therefore, the judgment on the pleadings in favor of defendant-appellees was properly entered.

It is certain that at no time in the pleadings did the Steins assert that they were unable to discover the injury or could not have been able to discover the injury until sometime after Eric Stein’s birth on December 5, 1977. Accordingly, we are satisfied, after a review of the pleadings presented in the instant case that the trial court was. never confronted with any facts indicating that the injury was discovered at such a time as would bring the complaints filed within the statute of limitations period. It is clear that the complaint presented, on its face, contained no facts which would indicate that the claim could be sustained. Thus, we are satisfied that the motion for judgment on the pleadings brought by the Hospital was properly sustained.

Eric Stein presents an argument, in the alternative, in which he contends that his pleadings need not have asserted any claim under the discovery rule because the writ of summons filed by the Stein parents, on November 16, 1977, by necessity incorporated Eric Stein as a party, and as such any claim raised by him is not barred by the statute of limitations. The trial court responded to this argument in its opinion when it stated:

After a change of attorneys, plaintiffs’ present counsel filed complaints, one on behalf of the minor plaintiff and the other on behalf of his parents. In the interim between the filing of the summons and the filing of the complaint, the statute of limitations had run.
Goodrich-Amram 2d Sec. 2228(b) correctly states the law as follows:
“Where a parent brings an action alone, the minor cannot be joined after the Statute of Limitations has expired. The minor’s claim is barred.”

We hold that the analysis presented by the trial court is correct. In Gould v. Nickel, 268 Pa.Super. 183, 185, 407 A.2d 891, 892 (1979), we said:

The only argument presented to us is that the claim of the parents was “derivative” of the conduct of their minor son, so that the verdicts were inconsistent, compelling the grant of a new trial. The lower court rejected this argument on the authority of Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962). Pennsylvania Rule of Civil Procedure 2228(b)1 provides:
If an injury, not resulting in death, is inflicted upon the person of a minor, and causes of action therefore accrue to the minor and also to the parent or parents of the minor, they shall be enforced in one action brought by the parent or parents and the child. Either parent may sue therefor in the name of both; but if the parents live apart the action shall be brought by the parent having the custody of the child and the control of its services.
Our case law clearly establishes that while the cause of action may be required to be jointly tried, they remain distinct causes of action. See Meisel v. Little, supra; Dellacasse v. Floyd, 332 Pa. 218, 2 A.2d 860 (1938) (fn. 1); Ehrlich v. Steifel, 94 Pa.Super. 406 (1928).

Thus, it is clear that the cause of action brought by the Stein parents was separate and distinct from an action brought by Eric Stein. The complaints filed distinct causes of action for the Stein parents and for Eric Stein. The procedural requirement that the claims be tried jointly doesn’t, therefore, give any validity to the argument raised by the Stein parents that the claim of Eric Stein must by implication and of necessity have been filed when the Stein parents filed their writs of summons. The trial court correctly reasoned that the complaint filed in behalf of Eric Stein represented a separate cause of action. Thus, the trial court properly held that the claim of Eric Stein was properly barred by the statute of limitations. See Frishberg v. Rosen, 65 D&C 2d 652 (1974); Goodrich-Amram (2d) § 2232(c) :3.

The burdens of proof placed upon a plaintiff in a medical malpractice dispute, should the plaintiff seek to argue that his action is not barred by the statute of limitations, is to plead that the injury was not discoverable at the time it was actually inflicted. The plaintiff alone has the facts necessary to demonstrate what facts rendered it unreasonable to expect him to discover his injury when it occurred. This principle is clearly established in our decisional law and the procedural process by which it must be proven as established by the Pennsylvania Rules of Civil Procedure is settled in our case law. Furthermore, as the rule’s purpose is certainly to protect the interests of the plaintiff as applied to medical malpractice cases, it is quite logical that the responsibility to assert the non-discoverability of the injury should burden the plaintiff. Our decision in Acker established no new burdens of proof, rather it only restated the existing burdens placed upon the parties to a medical malpractice dispute.

The Pennsylvania Rules of Civil Procedure articulate the precise procedure by which the affirmative defense of statute of limitations is to be raised. The Hospital correctly followed that procedure by filing their statute of limitations defense in new matter. Pa.R.C.P. 1030, 1017(b)(4).

Next, Eric Stein asks whether the trial court has authority to dispose of the Hospital’s motions for judgment on the pleadings when outstanding preliminary objections continued to exist. This argument is without merit. The Steins answered the new matter filed by the Hospital and argued before the court on the motion for judgment on the pleadings. No objection was made by the Steins concerning the procedure which the court followed. Eric Stein cannot now on appeal attack the trial court’s procedure when he made no objection to it at trial. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

In his final argument, Eric Stein contends that the trial court improperly dismissed the cause of action of his parents, Raymond and Dolores Stein. As we read the order of the trial court, although admittedly it could have been clearer, we now hold that the parents’ cause of action was not dismissed and continued to be a viable and subsisting cause of action.

We hold that the trial court properly granted the Hospital’s motion for judgment on the pleadings as to the cause of action brought by Eric Stein.

Accordingly, we affirm the order of the trial court in the case of Stein et al. v. The Washington Hospital v. Richardson, (No. 56 April Term, 1979), and reverse the order of the trial court in the case of Stein, et al. v. Richardson v. The Washington Hospital, (No. 55 April Term, 1979), and remand for proceedings consistent with this opinion.

WICKERSHAM, J., files dissenting statement.

DiSALLE and SHERTZ, JJ., did not participate in the consideration or decision of this case.

WICKERSHAM, Judge,

dissenting:

Raymond and Dolores Stein, parents of Eric Stein, filed a timely writ of summons in trespass on November 16, 1977 alleging medical malpractice against the named defendants, James E. Richardson, M.D. and The Washington Hospital. Thereafter separate complaints were filed against both defendants setting forth the claim that negligently rendered care resulted in cerebral trauma manifested in the form of cerebral palsy.

I would hold that the timely filing of a writ of summons by the parents on November 16, 1977 carried with it the claim of their son Eric, which indisputedly was the basis of their suit, even though his name was not included on the writ. There could be no possible prejudice to either Dr. Richardson nor to The Washington Hospital, both of which defendants obviously knew that the suit filed was intended as a claim for Eric’s injuries. I would hold that the statute of limitations is not here involved and would reverse the trial court for so finding. This case is clearly distinguishable from DeSantis v. Yaw, 290 Pa.Super. 535, 434 A.2d 1273 (1981) where no suit was instituted by the parents nor by the child within the period of the statute of limitations.

      . Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34 (repealed) and replaced by 42 Pa.C.S.A. § 5524(2).

      . Richardson joined the Hospital in the case filed against it and the Hospital joined Richardson in its case. The cases were consolidated for trial and on appeal.

      . Pennsylvania Rule of Civil Procedure 1030—“New Matter”—states all affirmative defenses must be raised in “New Matter” except for the defenses of statute of frauds and statute of limitations which were previously raised by demurrer and sustained.
      RULE 1030. New IWatter
      All affirmative defenses, including but not limited to the defenses of accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, immunity from suit, impossibility of performance, laches, license, payment, release, res judicata, and waiver and, unless previously raised by demurrer and sustained, the defenses of statute of frauds and statute of limitations, shall be pleaded in a responsive pleading under the heading “New Matter”. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. (Emphasis added.)

      . In the complaints filed by Eric Stein his injuries were listed without regard to any argument regarding the date on which they were discovered as: (a) cerebral trauma; (b) injuries to his central nervous and peripheral nervous system; (c) cerebral palsy; (d) learning disabilities; (e) injuries to his brain and cortical tissue; (f) spasticity in his muscles, tissues and joints; (g) impaired speech; (h) impaired learning abilities; (i) aggravations and/or activation of the above referred injuries; (j) various other personal injuries.

      . This is a questionable proposition. Oral argument was held in the court below on December 21, 1978. While the Acker decision did not appear in the West Publishing Company advance sheets until January 1, 1979, the decision was decided on October 20, 1978. Thus, the opinion was available as of October 20, 1978. We do not, however, hold that our Acker decision articulated a new standard which would have affected the case presented below.

      . See Louisell and Williams, Medical Malpractice, Published 1977, § 13.07, for a discussion of the “discovery rule” in other jurisdictions. And Brazener, When statute of limitations commences to run against malpractice actions based on leaving foreign substances in patient’s body, 70 A.L.R.3rd 1, for a general discussion of the discovery rule.

      . While we find the opinion of Judge Wickersham very appealing, we are nevertheless obliged to hold that a child’s cause of action is barred by the statute of limitations when it is not timely filed and cannot be tacked on to the cause of action of a parent which quite clearly arise out of damages alleged to have resulted from an injury to the parent’s child. Our Supreme Court said in Von Colln v. Pennsylvania Railroad Company, 367 Pa. 232, 80 A.2d 83 (1951), that a child’s cause of action is barred if it is filed in violation of an applicable statute of limitation. The Court said: “The settled rule is that infants as well as all others are bound by the provision of statutes.” Id., 367 Pa. at 232, 80 A.2d at 83. This view was recognized and followed by this court in our recent case of DeSantis v. Yaw, 290 Pa.Super. 535, 434 A.2d 1273 (1981). In light of our Supreme Court’s opinions in this regard, we cannot create now an exception.

      . Eric Stein was bom on December 5, 1975 and his injuries were allegedly inflicted on that same day.


author:
JOHNSON, Judge:
      WIEAND, Judge,

text:
    448 A.2d 568
    COMMONWEALTH of Pennsylvania v. James Patrick GALLOWAY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1981.
    Filed July 16, 1982.

      Dennis V. Williams, Erie, for appellant.
    James A. Meyer, District Attorney, Ridgeway, for Commonwealth, appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant was convicted by a jury of Arson-Endangering Property and Aggravated Assault and sentenced, on the Arson conviction, to, inter alia, three to six years imprisonment and to make restitution in the amount of $100 to Talbot E. Cuthbert and Edna Mae Galloway and $42,-921.83 to the insurance company who had insured the residence against fire damage. He received a concurrent sentence of three to six years for Aggravated Assault. Thereafter, Appellant’s Motion to Modify Sentence was denied and this appeal, involving twelve issues, followed.

I.

The first issue involves the sufficiency of the evidence as to the arson conviction. The evidence is sufficient if it supports the verdict beyond a reasonable doubt when construed in the light most favorable to the Commonwealth, with all proper inferences drawn favoring the Commonwealth. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981).

A conviction for arson requires the establishment of three facts: (1) that there was a fire; (2) that it was of incendiary origin; and (3) that defendant was the guilty party. Commonwealth v. Dolan, 287 Pa.Super.Ct. 202, 429 A.2d 1171 (1981); Commonwealth v. Colon, 264 Pa.Super.Ct. 314, 399 A.2d 1068 (1979).

Although the majority of evidence against Appellant was circumstantial, we have repeatedly held that the corpus delicti of arson can be proved by such evidence alone. Commonwealth v. Patterson, 247 Pa.Super.Ct. 527, 372 A.2d 1214 (1977), citing Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435 (1956).

It is undisputed that a fire occurred at the residence on May 22, 1979. A fire marshal testified that his investigation determined that the fire was incendiary in origin. Although he was unable to determine the exact nature of the hydrocarbon used as the accelerant, he was able to determine that the fire began in the corner of the living room. Appellant’s quotation of certain statements made by the fire marshal are not conclusive in discrediting the fire marshal’s testimony.

Appellant further argues that there was insufficient evidence of his participation in setting the fire. The record indicates that Appellant and his wife, the victim of the aggravated assault, returned home after visiting a friend early on the morning of the fire. An argument ensued and the victim was physically injured. The victim then walked to a neighbor’s house for aid, while Appellant remained at the residence. The neighbor called the victim’s ex-husband who arrived at the neighbor’s house to take the victim to the hospital. The ex-husband testified that on leaving the neighbor’s house, he noticed the silhouette of a man standing under a light in the doorway of Appellant’s residence, who looked like Appellant. Also, the ex-husband testified that he saw the taillights of Appellant’s car blink as he drove past Appellant’s residence and that Appellant’s car then proceeded down the hill towards the fire alarm. Evidence was presented concerning statements made by the victim to two Commonwealth witnesses including her ex-husband, that Appellant was going to burn the house down. There was no evidence of fire at the residence in question at this time.

Further evidence indicated that the fire alarm at the bottom of the hill was pulled by Appellant who then proceeded to his parents’ house to drop off his dog and to tell his mother of the fire. Appellant then returned to the location of the fire alarm and parked his car some distance away. He made no attempt to inform the firemen who had arrived at the fire alarm location where the fire was. Upon the arrival of Appellant and the firemen at the scene of the fire, Appellant had to be restrained from entering the house. He told firemen that his wife and dog were inside.

Upon a complete review of the record, we find the evidence to have been sufficient beyond a reasonable doubt for a jury to have found Appellant guilty of arson. See Commonwealth v. Rainey, 242 Pa.Super.Ct. 39, 363 A.2d 1148 (1976).

II.

Appellant argues that his conviction for aggravated assault was based on insufficient evidence. The record shows that Appellant’s wife went to a neighbor’s home for aid on the morning of the fire. She had open head and lip wounds, as well as numerous bruises, requiring a period of hospitalization. She told the neighbor, as well as her ex-husband, a state police officer, a doctor and a nurse, that Appellant had beaten her.

Although her testimony at trial indicated that the injuries were accidental and that Appellant did not directly cause them, we find no error in the jury’s determination as to credibility. Viewing the evidence and all reasonable inferences in a light most favorable to the Commonwealth, Commonwealth v. Edwards, supra, we conclude that the jury could have found Appellant guilty of aggravated assault beyond a reasonable doubt.

III.

Appellant next contends that the lower court erred in consolidating the arson and aggravated assault charges, despite his pre-trial objection.

Pa.R.Crim.P., Rule 228(b) states:

(b) Two or more offenses, of any grade, other than murder, may be charged in the same information if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. There shall be a separate count for each offense charged.

It is well-established that the propriety of consolidating separate informations or indictments is a matter of discretion with the trial judge and will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Finnegan, 280 Pa.Super.Ct. 584, 421 A.2d 1086 (1980).

The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at the trial for another. The present rule in Pennsylvania is that consolidation is proper (i.e., the denial of a motion for severance is not an abuse of discretion) if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; and (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other, (citations omitted)

Commonwealth v. Terrell, 234 Pa.Super.Ct. 325, 328, 339 A.2d 112, 114 (1975).

Applying this test to the instant case, it is clear that the facts and elements of arson and aggravated assault are easily separable, not only as to the law, but in reference to the facts in this case. The assault took place immediately prior to the fire. As to the second element of the test, evidence of assault was admissible to show Appellant’s motive for arson.

We therefore find no error by the trial court.

IV.

Appellant’s fourth and fifth assignments of error concern the re-reading of selected portions of testimony to the jury, upon their request, in the absence of Appellant. As trial counsel failed to object, Appellant’s different counsel on appeal urges that this was ineffective assistance.

The court in Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968) held that the proper procedure for reviewing testimony is for a review conducted in open court, in the presence of the parties and counsel. Accord Commonwealth v. Banks, 267 Pa.Super.Ct. 10, 405 A.2d 1277 (1979); see also Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971); Commonwealth v. Diehl, 378 Pa. 214, 107 A.2d 543 (1954).

However, we have found no case law which has specifically dealt with the issue raised by Appellant. We are of the opinion that the error in not having Appellant present, and in not proceeding in open court is, at most, harmless error. This is particularly true in view of the fact that Appellant’s different counsel on appeal has alleged no prejudice concerning this “error”.

Since we find the error, if any, to have been harmless, trial counsel was not ineffective for failing to object to a meritless claim. Commonwealth v. Jennings, 285 Pa.Super.Ct. 295, 427 A.2d 231 (1981).

Y.

The sixth and eighth assignments of error involve the alleged ineffective assistance of trial counsel for failing to object to the hearsay testimony of two Commonwealth witnesses, Thomas E. Jones and Talbot E. Cuthbert, as to declarations made by the victim.

When an ineffective assistance claim is raised, we utilize a two-step analysis: (1) whether the underlying issue is of arguable merit and (2) if so, whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interest. Commonwealth v. Jennings, supra, citing Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978) and Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

The victim told the witnesses that Appellant had beaten her. She also told one of the witnesses that Appellant stated he was going to burn the house down. The statements occurred within a period of approximately one hour after the victim was injured.

Prior to trial, the court discussed the admissibility of the statements as res gestae exceptions to the hearsay rule with counsel for the parties. The court determined that it would permit the testimony if a proper foundation for the exception was made by the Commonwealth.

To qualify under the excited utterance exception to the hearsay rule, the statement must be:

... a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.

Commonwealth v. Pronkoskie, 477 Pa. 132, 137-38, 383 A.2d 858, 860 (1978), quoting Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).

It is clear from the extent of the victim’s injuries that she was subject to “overpowering emotion caused by some unexpected and shocking occurrence.” See Commonwealth v. Ransom, 240 Pa.Super.Ct. 92, 360 A.2d 721 (1976).

The second requirement is that the declaration be a spontaneous reaction to the startling event. There is no clear-cut rule as to the time sequence; each case must be analyzed in light of its particular facts. Commonwealth v. Pronkonskie, supra; Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975). Also, the mere fact that a statement is made in response to a question does not prevent its admission as an excited utterance. Commonwealth v. Pronkonskie, supra; Commonwealth v. Cooley, supra.

In the instant case, we find the record indicates that the victim’s injuries were sufficient enough to have caused excited utterances to both of these Commonwealth witnesses. Despite the lack of testimony concerning the length of time between the infliction of the injuries and the victim’s arrival at a neighbor’s home, the evidence indicates that she was still bleeding from head wounds when she arrived. Other evidence indicates that she and Appellant left a friend’s home around 1:30 a. m. and that the victim arrived at the neighbor’s home at approximately 2:00 a. m.

We therefore hold that the statements were admissible under the excited utterance exception to the hearsay rule. Because of this determination, counsel was not ineffective for failing to object to them at the time of trial.

VI.

Appellant’s seventh assignment of error involves his claim of ineffective assistance for trial counsel’s failure to object to the hearsay testimony of Commonwealth witness Martha Laughner, a nurse.

The witness on direct examination testified as follows:

Q The two cuts back of her head, could you describe those a little better, please?
A They were very deep cuts, rather jagged. When I questioned her about the cuts, she said her husband had pounded her head on the wall.
Q Did she say anything else to you about her condition?
A She said he had beat her continuously and he had stated he was going to kill her, . . .

Record, 10/15/79, vol. I, at p. 79.

The witness also testified as to the victim’s hysteria as follows:

Q Tell me what happened then after you took her back to the room. What did you do?
A I—well, it’s routine to check them over quite thoroughly before we call the doctor, and that’s what I did. I checked her vital signs. They seemed to be alright. She was quite upset and I would say hysterical, and she kept repeating that her husband had tried to kill her.
Q Did she say anything else?
A She said she finally got away from him and ran to the neighbors’ for help.

CROSS-EXAMINATION

Q Mrs. Laughner, you say when you saw Mrs. Galloway there that she was quite hysterical?
A Yes.

Record, 10/15/79, vol. I, at pp. 80, 82.

It is clear that the basis for admitting this testimony is the excited utterance exception to the hearsay rule, as discussed supra. The record indicates that the victim was brought to the hospital sometime after 2:30 a. m. on the night in question. The lapse of time between the injury and the making of the statements to this witness is unclear, but it appears to have been at least one-half hour after the injury was incurred. Concerning excited utterances it has been said that:

The declaration need not be strictly contemporaneous with the existing cause, nor is there a definite and fixed time limit. Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952); VI Wigmore, supra at § 1750(b). Rather, each case must be judged on its own facts, and a lapse of time of several hours has not negated the characterization of a statement as an “excited utterance.” See Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966) (forty-five minutes); Commonwealth v. Dugan [252 Pa.Super. 377, 381 A.2d 967] supra (2/2-3 hours). The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance. VI Wigmore, supra at § 1750(b).

Commonwealth v. Gore, 262 Pa.Super.Ct. 540, 547-48, 396 A.2d 1302, 1305 (1978).

Pursuant to our discussion supra, we find the statements concerning the source of the victim’s injuries qualify as excited utterances and were therefore, admissible.

As to the victim’s statements quoted supra, concerning the declaration made by Appellant that he was going to kill the victim, Appellant claims this was hearsay on hearsay.

First, the statement was admissible, as between Appellant and the victim, as an admission. See Commonwealth v. Cooley, 484 Pa. 14, 398 A.2d 637 (1979). Secondly, as between the victim and the witness, the excited utterance exception, discussed supra, qualifies it for admission.

Therefore, Appellant’s claim is meritless.

VII.

Appellant argues that trial counsel was ineffective for failing to object to remarks of the court clerk made during the poll of the jury.

Appellant’s reliance on Commonwealth v. Ciotti, 279 Pa.Super.Ct. 75, 420 A.2d 751 (1980) for support is erroneous. The Superior Court in Ciotti, supra, determined that the defendant was deprived of his right to poll the jury because of the court clerk’s remarks. Those remarks were “When I call your name, would you please stand and respond yes.” (emphasis added). The Supreme Court ultimately vacated and remanded the determination of the Superior Court on the issue of the court clerk’s remark. Commonwealth v. Ciotti, 496 Pa. 232, 436 A.2d 983 (1981). The clerk in the instant case made no such remark, but merely asked: “[name of juror], you’ve heard the verdicts as rendered by this jury and recorded in this Court in the instant cases. Are those your verdicts? Are those your findings?” This procedure was not improper. See Commonwealth v. Pacini, 224 Pa.Super.Ct. 497 n.7, 307 A.2d 346 n.7 (1973) (dictum).

We therefore find Appellant’s argument meritless.

VIII.

The next allegation involves whether the Commonwealth committed prosecutorial misconduct while attempting to cross-examine the victim.

During the Commonwealth’s examination of the victim, a discussion ensued at sidebar where the Commonwealth’s attorney argued that he should have the right to cross-examine his witness due to surprise. However, although upon resuming questioning, some of the proffered questions asked of the victim were leading, they in no way were prejudicial to Appellant and did not constitute reversible error.

Therefore, no prosecutorial misconduct occurred and Appellant’s argument is without merit.

IX.

Appellant next argues that trial counsel was ineffective for failing to object to counsel’s opening remark which made mention of hearsay testimony relating to statements made by the victim to Commonwealth witness Tom Jones.

A district attorney’s remarks in his opening statement must be fair deductions from the evidence the Commonwealth in good faith expects to develop, not merely assertions intended to inflame the passions of the jury. Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978).

In order to obtain judicial relief, the language of the prosecuting officer in the opening statement must be such that its unavoidable effect is to so prejudice the jury against the accused and prevent the finding of a true verdict. Commonwealth v. Betrand, 484 Pa. 511, 399 A.2d 682 (1979); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975).

As we have determined that the said hearsay evidence was properly admitted, supra, there was no error in the Commonwealth making reference to it in its opening statement and therefore, no ineffective assistance in trial counsel not objecting to it. See Commonwealth v. Detrie, 263 Pa.Super.Ct. 75, 397 A.2d 2 (1979).

X.

Appellant’s final allegation involves (1) whether the court was authorized to require Appellant to make restitution to Delta Claims Service, Inc., the fire insurance company whose policy covered the dwelling in question and (2) whether the prison sentences imposed were manifestly excessive.

The statutory authority for imposing restitution as a direct sentence is found in 18 Pa.C.S.A. § 1321(c) and 18 Pa.C.S.A. § 1106. Section 1106(a) states:

(a) General rule.—Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.

Section 1106(h) defines “victim” as “[a]ny person, except an offender, who suffered injuries to his person or property as a direct result of the crime.” (emphasis added).

As a sentence, or a condition of sentence, imposed following a criminal conviction, an order of restitution is not an award of damages.... While the order aids the victim, its true purpose, and the reason for its imposition, is the rehabilitative goal it serves by “impressing upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so.” State v. Stalheim, 275 Or. 683, 689, 552 P.2d 829, 832 (1976); See State v. Mottola, 84 N.M. 414, 504 P.2d 22 (1972). Thus a court’s concern that the victim be fully compensated should not overshadow its primary duty to promote rehabilitation of the defendant.

Commonwealth v. Fuqua, 267 Pa.Super.Ct. 504, 508, 407 A.2d 24, 26 (1979) (citations and footnotes omitted). Since an order of restitution is a sentence, whether it is imposed as a direct sentence or as a condition of probation or parole, it must be supported by the record. Commonwealth v. Fuqua, supra. The trial court must determine the loss or damage the defendant has caused, what amount of restitution he can afford to pay and how he should pay it. Commonwealth v. Erb, 286 Pa.Super.Ct. 65, 428 A.2d 574 (1981).

In the instant case, it is apparent that the insurance company, the recipient of the restitution, was not the “victim” according to the definition found in 18 Pa.C.S.A. § 1106(h). The insurance company was required to reimburse the legal owners, as per an insurance contract, but such payment does not constitute injury as required by § 1106(h). Injury to property is defined in 18 Pa.C.S.A. § 1106(h) as “[l]oss of real or personal property, including negotiable instruments, or decrease in its value, directly resulting from the crime.” Therefore, payment under an insurance contract is not a “loss”, but merely a contractual obligation. Only the innocent legal owners of the home destroyed by the arson are entitled to restitution on the arson conviction as the victims.

Also, upon a review of the sentencing proceeding, it appears that the lower court failed to support any of its orders for restitution, including the order for $100 restitution to Talbot E. Cuthbert and Edna Mae Galloway. No findings were made concerning the amount of damages nor the ability of Appellant to pay restitution. Therefore, we must vacate the sentences as they relate to restitution, and remand to the lower court for resentencing consistent with this opinion.

As to Appellant’s final issue that the prison sentences imposed were manifestly excessive, we note that the imposition of a proper sentence is a matter vested in the sound discretion of the sentencing judge. Commonwealth v. Bryner, 285 Pa.Super.Ct. 305, 427 A.2d 236 (1981). A review of the sentencing hearing indicates no abuse of discretion. The sentencing judge gave adequate reasons for the imposition of the prison sentences and took into consideration the factors stated in the Sentencing Guidelines.

Judgment of sentence affirmed, except as to the orders of restitution; said orders are vacated and the case remanded for resentencing as to restitution to the victims consistent with this opinion. Jurisdiction is not to be retained.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I agree with the majority’s determination that there was no trial error requiring the grant of a new trial. I concur also that the record does not support that part of the sentence which orders the appellant, James Patrick Galloway, to make restitution for the arson which he committed. However, I am unable to agree that an order of restitution must be based on a present, as opposed to a potential, financial ability to satisfy a sentence of restitution or that an order directing restitution to a subrogated insurance carrier is invalid. Therefore, I do not join in the majority opinion but concur in the result.

Authority for sentencing a convicted offender to make restitution is contained in Section 1106 of the Crimes Code, 18 Pa.C.S. § 1106, as follows:

§ 1106. Restitution for injuries to person or property
(a) General rule.—Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
(b) Condition of probation or parole.—Whenever restitution has been ordered pursuant to subsection (a) and the offender has been placed on probation or parole, his compliance with such order may be made a condition of such probation or parole.
(c) Authority of sentencing court.—In determining whether to order restitution as a part of the sentence or as a condition of probation or parole, the court:
(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.
(2) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just, provided that the period of time during which the offender is ordered to make restitution shall not exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted.
(3) May at any time alter or amend any order of restitution made pursuant to this section providing, however, that the court state its reasons and conclusions as a matter of record for any change or amendment to any previous order.

We have previously held that an order of restitution is not an award of damages but a rehabilitative tool to impress “upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so.” Commonwealth v. Erb, 286 Pa.Super. 65, 79, 428 A.2d 574, 581 (1981); Commonwealth v. Fuqua, 267 Pa.Super. 504, 508, 407 A.2d 24, 26 (1979). We have also held that a court’s authority to order restitution, whether as a direct sentence or as a condition of probation, is not affected by the happenstance of whether the victim carries insurance. Commonwealth v. Kerr, 298 Pa.Super. 257, 262, 444 A.2d 758, 760 (1982). Indeed, we have said unequivocally that an offender “has no standing to question contractual or subrogation rights which govern disposition of moneys paid via restitution to the victim.” Commonwealth v. Kerr, supra, 298 Pa.Superior at 262, 444 A.2d at 761. Why, then, should a sentenced offender have standing to object if the court recognizes the subrogation rights of the victim’s insurer and, with the consent of the victim, substitutes the insurer as the person to be reimbursed by the offender’s payment of restitution? Neither appellant nor the majority suggests any valid policy or practical reason for insisting that such payments be made only to the victim who thereafter must, by contract, deliver them to his insurer. Cf. People v. Bond, 99 Mich.App. 86, 297 N.W.2d 620 (1980); Contra People v. Grago, 24 Misc.2d 739, 204 N.Y.S.2d 774 (1960).

“Subrogation” has been defined as the “substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim . . . . ” Black’s Law Dictionary (5th ed. 1979). The Crimes Code clearly authorizes the court to order restitution, either as a condition of probation or as a direct sentence. Commonwealth v. Kerr, supra, 298 Pa.Superior at 259, 444 A.2d at 760; Commonwealth v. Erb, supra 286 Pa.Super. at 73, 428 A.2d at 578; Commonwealth v. Fuqua, supra 267 Pa.Super. at 509, 407 A.2d at 26. It does not direct specifically to whom restitution payments are to be made. It does not require that restitution payments be made to the “victim.” It does not preclude payments of restitution, either expressly or by necessary implication, to an insurer who has compensated the victim of a criminal act and has been subrogated to his rights. In such cases, the court is no more a “collection agency” to recover a civil loss than when restitution is to be paid to an insured “victim” and he or she then delivers the same to the subrogated insurer.

An order directing payment to a subrogated insurer will not impair the rehabilitative effect of a sentence of restitution. Whether the restitution is paid to the insurer directly or whether it is paid indirectly via the insured victim, the sentence of restitution will serve its rehabilitative purpose of impressing upon the offender the loss he has caused and his responsibility to repair that loss.

For these reasons, I am unable to agree with the majority’s holding that a sentence is illegal if it directs that restitution be paid directly to a subrogated insurance carrier which has reimbursed the “victim” for his loss. See United States v. Follette, 32 F.Supp. 953 (E.D.Pa.1940).

An order of restitution is a sentence; and, therefore, it must be supported by the record. Commonwealth v. Seminko, 297 Pa.Super. 418, 420, 443 A.2d 1192-1193 (1982); Commonwealth v. Erb, supra 286 Pa.Super. at 81, 428 A.2d at 582; Commonwealth v. Fuqua, supra 267 Pa.Super. at 508, 407 A.2d at 27. However, there is no rule of law which holds that appellant can be ordered to make restitution only if he has a present financial ability to make immediate restitution. In the instant case, appellant has been sentenced to serve a term of imprisonment; and, therefore, it is unlikely that he will be able to make restitution payments before he is granted parole. He will in all probability be granted parole without again appearing before the sentencing court, for this decision must be made by the Pennsylvania Board of Probation and Parole. See Act of August 6, 1941, P.L. 861, § 1 et seq., as amended by Act of December 27, 1965, P.L. 1230, § 1 et seq., 61 P.S. § 331.1 et seq. Consequently, it is entirely proper for the sentencing court to include a restitution requirement at the time it imposes sentence. This is so even though the information regarding a defendant’s future earnings at that time may well be limited to such items as education, training, experience, prior employment record and anticipated future living expenses. Neither a sentence of imprisonment nor an inability to ascertain with accuracy the future earning capacity of the defendant should deter a trial court from ordering restitution as part of a sentence. The rehabilitative goal to be achieved by a sentence of restitution will be well served if a defendant, during parole, is required to make reasonable sacrifices in order to make good the loss which he or she has caused. Commonwealth v. Wood, 300 Pa.Super. 463, 446 A.2d 948 (1982).

      . 18 Pa.C.S.A. § 3301(b)(1).

      . Id., § 2702(a)(1).

      . Appellant phrases his first two arguments in terms of the court’s failure to grant Appellant’s demurrer. This is not an appropriate issue for appellate review where Appellant did not rest following the adverse ruling. Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981). However, we will treat the question as if properly framed.

      . Record, 10/15/79, vol. I, at pp. 23-5, 54.

      . Id, at pp. 54-6.

      . Id, at pp. 4-6.

      . Transferred to 42 Pa.C.S.A. § 9721(c).

      . Concerning an order of restitution as payable only to the direct victim, see People v. King, 648 P.2d 173 (1982); Montgomery v. State, 292 Md. 155, 438 A.2d 490 (1981); State v. Eilts, 23 Wash.App. 39, 596 P.2d 1050 (1979); U. S. v. Clovis Retail Liquor Dealers Trade Assoc., 540 F.2d 1389 (10th Cir. 1976); People v. Grago, 24 Misc.2d 739, 204 N.Y.S.2d 774 (Cty.Ct.1960); Karrell v. U. S., 181 F.2d 981 (9th Cir. 1950), U. S. cert. den., 340 U.S. 891, 71 S.Ct. 206, 95 L.Ed. 646 (1950). But see, People v. Bond, 99 Mich.App. 86, 297 N.W.2d 620 (1980); State v. Green, 29 N.C.App. 574, 225 S.E.2d 170 (1976), cert. den., 290 N.C. 665, 228 S.E.2d 455 (1976); Flores v. State, 513 S.W.2d 66 (Tex.Cr.App. 1974); Shenah v. Henderson, 106 Ariz. 399, 476 P.2d 854 (1970).

      . See also 42 Pa.C.S. § 9721(c).

      .- Section 1106(a) of the Crimes Code, 18 Pa.C.S. § 1106(a) expressly permits both a sentence of imprisonment and a sentence of restitution. See also 42 Pa.C.S. § 9721(c).


author: MONTEMURO, Judge:

text:
    448 A.2d 579
    AGRA ENTERPRISES, INC. and Donald Carpenter, Appellants v. Eugene BRUNOZZI.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1981.
    Filed July 16, 1982.

      Joseph W. Conway, Pittsburgh, for appellants.
    Thomas J. Gravina, Pittsburgh, for appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

The instant action is one of a pair of companion cases which were argued together below but which gave rise to different outcomes on different causes of action.

The companion case named as defendant a certain Robert L. Kish, a former employee of appellants. Kish had signed a covenant not to compete with appellants as a condition of his employment, and the lower court issued an injunction forbidding his continued participation in a competitive business. Neither party appealed that outcome.

The case we are now required to decide, however, ended unsatisfactorily for appellants, as their petition for an injunction against appellee, Eugene Brunozzi, was denied. Appellants argue that appellee, their former accountant, was guilty of a civil conspiracy with Kish in setting up a competitive business and has also violated the C.P.A. Law by divulging confidential information. Hence this appeal.

Appellee raises a jurisdictional issue, claiming that the order of the lower court, being in equity, is a decree nisi rather than a final order, and that under Pa.R.C.P. 1518 appellant was compelled to file exceptions to preserve his issues for appeal. This proposition finds support in cases such as Community Sports; Inc., v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491 (1968) and Altemose Construction Co. v. Building and Construction Trades Council, 461 Pa. 524, 337 A.2d 277, 88 BNA LR RM 3448 (1975).

In 1976, however, 42 Pa.C.S.A. § 5105(c) was enacted, and Pa.R.A.P. 311 was promulgated pursuant to that provision. Section 311(a)(4) specifically grants an appeal “as of right” from orders concerning injunctions. The Notes following the rule cite the Altemose case, supra, as an example of “prior practice”. Present practice, obviously, is controlled by the statute permitting appeal directly to the appellate court without the need for exceptions. Therefore, the matter is properly before this court at the present time and the merits may be considered.

The appellee is a certified public accountant who was employed by appellant Carpenter to be the accountant for the appellant Agra Enterprises. Appellee set up the books for the business and thereafter performed the monthly accounting and dealt with the banks. He came to know the employees and to be very familiar with the business. He was employed to do similar jobs as accountant for a second company which was a competitor of Agra Enterprises. He ceased working for appellants in October, 1979.

The appellant business is a trucking brokerage firm which makes its money by arranging for truckers employed by agricultural cooperatives to pick up other commodities for backhaul loads, thus avoiding a return trip with an empty truck. The agricultural cooperatives and the shippers are both groups that are listed in ways that are open to public knowledge.

In April 1980, appellee opened his own brokerage business under the name of U.S.A. He hired Robert L. Kish, discussed supra as the defendant in the companion case, to do his contact work, and he also hired a former secretary of appellants who had been working for a third party for an interim period of time.

There can be no doubt that appellee used knowledge he had personally acquired from appellants and their competitor in setting up his business. It is equally clear that appellee hired the former employees of appellants with intent to make use of the expertise they had acquired, in order to make his own new business profitable. It is understandable that appellants feel aggrieved, but we must affirm the decision of the trial court that appellee’s activities were not unlawful and that therefore the refusal to issue an injunction against him was correct.

We note again that an injunction did issue against Kish, the employee of Agra who worked for U.S.A. as well. The court below specifically restricted its decision in that instance to the agreement not to compete and rejected any implication that breach of a confidential relationship had occurred.

In the instant appeal, the appellants argue that appellee is guilty of civil conspiracy, and also that he has violated Section 9.11a of the C.P.A. Law, the Act ol' 1976, Dec. 8, P.L. 1280, No. 286, 63 P.S. 9.11a. That section forbids a C.P.A., except by permission of his client, from divulging confidential information he obtained during performance of professional services. The relationship between an accountant and his client has been held to be one of confidentiality, Young v. Kaye, 443 Pa. 335, 279 A.2d 759 9 VCC RS 713 (1971); however, the statute makes only a limited change in the common law, and it does not extend the common law attorney-client privilege to the accountant-client relationships. Rubin v. Katz, 347 F.Supp. 322 (ED Pa.1972). A review of the instant record in light of case law shows that the kind of betrayal of confidence envisioned under common law or the statute is not present on the facts of this case.

A man’s aptitude, his skill, his dexterity, his manual and mental ability, and such other subjective knowledge as he obtains while in the course of his employment, are not the property of his employer, and the right to use and expand these powers remains his property unless curtailed through some restrictive covenant entered into with the employer. Van Products Co. v. General Welding and Febricating Co., 419 Pa. 248, 213 A.2d 769, 30 ALR 3d 612 (1965).

Appellee used his skills as a C.P.A. for this company and one of its rivals, and he gained considerable knowledge about their business by doing so. He had signed no restrictive covenant, however, and thus would be entitled to use any skills and knowledge acquired unless his knowledge amounted to “confidential information.”

It is not material that the secrets of a business be of any particular type as long as they are “peculiar and important:”

They, however, must be the particular secrets of the complaining employer, not general secrets of the trade in which he is engaged. Morgans’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 624, 136 A.2d 838 (1957).

On the instant facts, appellee’s expertise at setting up books, compiling reports, dealing with banks, etc. was not confidential. He in fact did similar work for another client in competition with appellants. That he turned his knowledge to his own use and created another competitor was not unlawful. The lists of shippers and agricultural cooperatives are, as stated supra, published for public consumption. Our courts have already determined that customer lists which are publically available are not “particular secrets of the complaining employer.” See Vincent Howitz Co. v. Cooper, 352 Pa. 7, 41 A.2d 870 (1945), 24 ALR 3d 821.

Appellee established a formidable rival to appellants’ business, but he used expertise he developed over time and publically published information to do so. Appellants had, as the lower court noted, ample reason to demand a covenant not to compete of their employee Kish, whose job skills, in combination with appellee’s own skills, created the competitive business.

Did the combination of those job skills amount to “civil conspiracy” as appellants argue? We think not. The rule for establishing civil conspiracy is as follows:

A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose. Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335 (1971); Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498 (1974).

Additionally, a finding of civil conspiracy requires proof of “malice:”

. . . malice, i.e. an intent to injure, is essential in proof of a conspiracy and this unlawful intent must be absent justification. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979).

We have seen that the use of the skills and knowledge of the appellee and Kish was not a breach of a confidential relationship, but the question remains as to whether the purpose was unlawful or the intent unjustifiable. Even intentional, calculated harm done to another may be “justifiable” by legal standards.

If it was bona fide done in the use of a man’s own property . . . such legal justification would . . . exist not the less because what was done might seem to others to be selfish or unreasonable . . . But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one’s own lawful gains, or the lawful enjoyment of one’s own rights. Rosenblum v. Rosenblum, 320 Pa. 103, 181 A 583 (1935).

In order to succeed in this suit, appellants would have had to convince us that appellee’s motives were malicious and without legal justification. That they have not done. Appellee’s motive in behaving as he did was clearly one of making lawful gain for himself rather than an intent to destroy appellants.

The lower court was correct in refusing to issue an injunction against appellee Brunozzi, and we affirm.

Order affirmed.

      . Appellee correctly notes that the only provision of “The C.P.A. Law,” supra, which provides for injunctive relief is limited to action taken by the State Board of Examiners, 63 P.S. § 9.14. However, § 9.11a, discussed supra, does pertain to privileged client communications and the right to grant or withhold permission to speak lies in the client. Some variety of redress to the private individual harmed by acts incompatible with the statutes’ protections would seem mandated under the Act. As noted above, however, there is little difference between the common law and the Act.