author:
DEL SOLE, Judge:
      WICKERSHAM, Judge, dissenting:

text:
    480 A.2d 1160
    COMMONWEALTH of Pennsylvania v. John J. PETRINO, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed July 20, 1984.
    Petition for Allowance of Appeal Denied Jan. 17, 1985.

      Lawrence A. Kalikow, William J. Fulton, Assistant Public Defenders, Harrisburg, for appellant.
    Katherene Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

Appellant was convicted of murder in the third degree and theft by unlawful taking. Post-trial motions were filed and denied. He appeals on several grounds.

The facts are as follows: On June 15, 1981, Appellant left the Coatesville Veteran’s Administration Hospital in Chester County, Pennsylvania after a voluntary commitment one month before. Appellant had a history of both voluntary and involuntary institutional commitments. While hitchhiking west near Lancaster, Pennsylvania, Appellant was given a ride by William Porter. The two men stopped at the Congress Inn in Lower Swatara Township in Dauphin County. They had been drinking and, after obtaining a room, they went into an adjoining tavern where they met Wilbert Potter, a homosexual in his early fifties. At about 1:30 a.m. on June 16, the three men returned to the hotel room with one case of beer and continued drinking. At approximately 3 a.m., the body of Wilbert Potter was found in the parking lot of the Brookside Diner, just south of the Congress Inn and about 50 yards from the room the three had occupied earlier. The death was found to be caused by a blow to the back of the head by an immovable object, such as cement paving. At 4 a.m., Appellant was seen by a police officer walking north on the Boulevard near where the victim’s body was discovered. When the officer questioned him, Appellant gave his name as John Petrino and said he was staying at the Congress Inn. The officer then asked Appellant to return to the Inn. Less than an hour later, police responded to a report of a man trying to hitchhike on the Pennsylvania Turnpike at Exit 19, one mile from the Inn. The man gave his name as Charles Archking, but one of the officers, who was called to the turnpike, knew him to be the same man who had earlier identified himself as John Petrino. The Appellant, when asked about using two names, smiled. Appellant told police that a person staying in Room 50 of the Congress Inn could identify him. Police, taking Appellant, went to the room and woke William Porter. Upon seeing Appellant, Porter accused him of stealing his (Porter’s) shirt and money. When the Appellant then took the money out of his pocket and handed it to Porter, police noted stains on the shirt which appeared to be blood. The shirt was taken for evidence.

Later on June 16, Appellant asked for an attorney before speaking to police. Because the hotel room (where the theft occurred) and the Diner (where the body was found) were located in two separate police jurisdictions, Appellant’s request to the Swatara Township Police was not passed on to the Lower Swatara Police. When he was later interrogated on June 16 by representatives of both departments, Appellant responded that he had beaten Potter to death and knew he was dead because of his experience as an Army medic. This statement was suppressed at trial.

On June 18, however, police again questioned defendant. At that time, a waiver form was given to Appellant, which he signed. At that meeting, Appellant implicated Porter in the murder and denied his own involvement.

On June 24, while being processed after his arrest at the Dauphin County Prison, Appellant asked one of the investigating officers if he wanted to know the events of June 15 and 16, to which the Detective responded, “Oh, yes.” Appellant effectively withdrew his June 18 statement by admitting that it was he and not Porter who had killed the victim. The Detective testified that his comment had not been intended to elicit a response. Appellant was also reported to have stated that the police couldn’t convict him for the murder because “he was crazy”.

It is apparent from the record that Appellant was not given the benefit of representation until July 13, 1981, when the Appellant’s counsel signed a notice of formal arraignment on behalf of his client.

The main issues raised on appeal are:
(1) Whether the evidence was sufficient to support a finding of guilty of murder in the third degree.
(2) Whether the Suppression Court erred in denying his omnibus pretrial motion to suppress both physical evidence and statements made by Appellant.
(3) Whether the trial court erred in failing to suppress all statements made by Appellant after he requested counsel but before counsel was made available to him.

The first issue raised is whether the evidence was sufficient to support a finding of guilty of murder in the third degree. In particular, Appellant argues that the Commonwealth failed to prove that the circumstances of the death would enable the jury to infer malice necessary to justify a verdict of third degree murder. Malice is defined as “a particular ill-will ... a hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty,” Commonwealth v. Buzard, 365 Pa. 511, 516, 76 A.2d 394, 396 (1950). Where there is no murder weapon, but where only fists are used, there is no presumption of malice, Commonwealth v. Guida, 298 Pa. 370, 148 A. 501 (1930). Instead, malice can be found from considering the circumstances surrounding the acts, Commonwealth v. Buzard, 365 Pa. at 516, 76 A.2d at 396.

The test in reviewing the sufficiency of the evidence is: Whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable 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, Commonwealth v. Moore, 488 Pa. 361, 363, 412 A.2d 549, 550-51 (1980).

In Commonwealth v. Buzard, supra., the court refused to overturn a conviction based on a finding of malice from a death occurring when a large defendant pursued a smaller victim, overpowered him, threw him to the ground and knocked his head against the pavement repeatedly. Also, in Commonwealth v. Moore, supra., under similar facts, the requisite malice was found to exist. The Supreme Court noted evidence that the victim suffered from head injuries and rib fractures and internal hemorrhaging while the defendant was only injured in the hand. In the present case, there is evidence of a similar one-sided fight in that the defendant suffered only slight hand injuries and the victim was beaten about the head, abdomen, and limbs. Also, there was evidence admitted at trial from a crime reconstruction expert who testified that the blood stains on the shirt worn by Appellant would indicate that they came from the victim of a severe beating. Given the nature of the injuries along with the circumstances surrounding the act, malice could well be inferred. We find the argument meritless.

Appellant next argues that the Suppression Court erred in denying his omnibus pretrial motion to suppress both physical evidence and statements made by Appellant. The contention is that Appellant’s very arrest was illegal and, therefore, the objects and the i.e. the fruits of the arrest, are suppressible. The turning question is whether Appellant was arrested at the time he was taken in a police vehicle to the Inn or whether the arrest occurred at the Inn when he was identified by Porter as the man who stole his shirt and money. Probable cause necessary for an arrest is charged to be lacking before Porter’s identification. “An arrest may be constructive or actual ... and is accomplished by ‘any act that indicates an intention to take a person into custody and subjects him to the actual control and will of the person making the arrest,” Commonwealth v. Romeri, 314 Pa.Super. 279, 460 A.2d 1139 (1983). In the Romeri case, defendant voluntarily went with police to the station and answered questions resulting in his implication in a crime. Because the defendant chose to follow police to the station, the voluntary statements formed the basis for probable cause and were properly admitted. In this instance, Appellant was approached by police as he stood at the Turnpike entrance. Appellant was seen by police attempting to hitchhike. He was then questioned as to his identity. Appellant is not arguing that the stop itself was unlawful. “A police officer may in an appropriate manner approach such a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest,” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). When an officer observes or has been notified of a person’s peculiar behavior and experience dictates that a crime may have occurred or is about to occur, he is in justified in questioning the individual Commonwealth v. Greber, 478 Pa. 63, 67, 385 A.2d 1313, 1316 (1978). After Appellant was questioned, however, he told police that someone in Room 50 of the Congress Inn could identify him. The police then took Appellant about one mile in a squad car to the Inn. Appellant argues that this act amounted to an arrest for which police had no probable cause. All parties agree that probable cause for arrest existed when Porter implicated Appellant after the police had transported him to the Inn. This case is distinguishable from the facts which existed in Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979), where police, acting on an informant’s tip, blocked defendant’s car, read him his rights and escorted him to the station. The court found that an arrest had occurred at the scene. Defendant had requested to drive his own car, and the police refused. He was searched and given his rights. The court said:

An arrest cannot be disguised by the use of such terms as “investigatory detention” ... when a person is actually restrained of his freedom by the police and is taken into custody, an arrest has occurred in law and in fact and constitutional protections must be observed,” Commonwealth v. Allessie, 267 Pa.Super. at 338, 406 A.2d at 1070.

In Commonwealth v. Sheridan, 292 Pa.Super. 278, 437 A.2d 44 (1981), this Court approved such an intermediate response. See also, Commonwealth v. Daniels, 280 Pa.Super. 278, 284, 421 A.2d 721, 724 (1980). In that case, police had been given a description of a burglar which fit the defendant. Defendant was seen walking in close proximity to the scene at an early hour of the morning. When the defendant was unresponsive to police questions, they frisked him and took him to the scene to be identified. Given the Appellant’s evasiveness in this case, i.e. giving a false name, time of the day, proximity to the scene of a brutal murder, police attempts to secure an accurate identification of Appellant were justified. We do not have circumstances here similar to those in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), U.S. cert. den. 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983), where police stopped and questioned three men, based on a general description, and, being suspicious of the mud on their shoes as well as dissatisfied with their responses to questions, transported the men to the scene where they were identified by the burglary victim. The time when the men were put into the police vehicle was seen as the time of arrest. The court found that to be an unlawful intrusion into the individual’s rights. But in this case, the Appellant was not taken back to the scene per se. He was then not suspected of the murder. Appellant, under the facts, was asked to properly identify himself. He volunteered the name and whereabouts of a person who could identify him. He went with police to the Inn and was implicated by that person. While this court is mindful that such intermediate responses are lawful only in narrow instances and that the transporting of individuals is very pursuasive of the fact that an arrest has occurred, such a response was lawful here. There is no evidence that Appellant would not have been free to go after he was properly identified or that he was forced to accompany police. Because the response was both necessary and justified, the physical evidence and oral statements obtained at the Inn which formed the probable cause required to arrest Appellant were properly admitted using this rationale.

The Suppression Court in this case found that Appellant’s statements made on June 16, after he had requested counsel, were excludable from trial. No appeal from this order has been filed. The June 18 and 24 statements, however, were admitted into evidence. This case comes to us on the following level:

When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant’s constitutional rights, Pa.R.Crim.P. 323(i). The suppression court must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible ... On review, our responsibility is “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings,” Commonwealth v. Hubble, 318 Pa.Super. 76, 78, 464 A.2d 1236, 1237 (1983), Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975).

According to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), certain rights, including the right to be interrogated in the presence of counsel, attach to the accused when custodial interrogation begins. Such interrogation is defined as, “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. The U.S. Supreme Court found interrogation to include more than express questioning, however, and ruled that Miranda rights come into play where the “interrogation environment created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination,” Rhode Island v. Innis, 446 U.S. 291, 299, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297, 306 (1980), or where there exists “words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from suspect,” Innis, 446 U.S. at 301, 100 S.Ct. at 1689-1690, 64 L.Ed.2d at 308. The court in Innis found that no interrogation had occurred where defendant told police the location of the murder weapon when two officers, escorting defendant to the police station, commented to one another that it would be terrible if some child would injure himself by finding the weapon if it were located near school grounds. Interrogation under Miranda, the court decided, involves certain compulsion beyond that which is inherant in a custody situation, Innis, 446 U.S. at 300, 100 S.Ct. at 1689, 64 L.Ed.2d at 307. The officers were not questioning defendant but merely talking between themselves. It is admitted in this case that on June 16, when the officers questioned Appellant and took him to the station, a custodial interrogation occurred. Appellant’s rights to be interrogated in the presence of an attorney attached. Because the record indicates that at no time was Appellant released from custody, those rights held firm unless he voluntarily and intelligently waived them.

We now turn our discussion to the admissibility of the June 18 and 24 statements. The rule set forth in Miranda which provides the framework for our decision today is that:

(O)nce warnings have been given, the subsequent procedure is clear ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent,” Miranda, 384 U.S. at 473-474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723.

In the present case, Appellant asserted his Miranda right to be interrogated in the presence of counsel. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh. den. 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984, the U.S. Supreme Court added that where the defendant, after having been read his rights while at the police station, asked for an attorney and was later told he ‘had to’ talk with detectives, resulting in his making an incriminating statement, such statements were inadmissible at trial. Noting that the right to counsel involves special safeguards, the Supreme Court held that, “(A)n accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police,” Edwards, 451 U.S. at 484, 101 S.Ct. at 1885, 68 L.Ed.2d at 386. If Appellant initiated the June 18 meeting with police when he signed the waiver form, then that waiver is a valid relinquishment of his rights if made intelligently and voluntarily, Commonwealth v. Frison, 301 Pa.Super. 498, 448 A.2d 18 (1982). However, if the Appellant did not initiate the meeting, his previous assertion of rights must stand. In Frison, the defendant was found to have experienced a “change of heart” when he delivered his confession after having earlier denied knowledge of the incriminating incident. The court found that, “(A) defendant’s initial exercise of his Miranda rights does not foreclose a later waiver of them so long as the waiver is preceeded by a complete explanation of those rights and is clear from the record that defendant’s decision to forego those rights was not induced by coercion, however subtle, or a promise of leniency but was voluntary,” Frison, 301 Pa.Super. at 508, 448 A.2d at 23. The court found that because defendant was given an explanation along with his Miranda rights when he decided to confess, there was no coercion. The case, however, involved a defendant’s right to remain silent. This case deals directly with an assertion of the right to be interrogated in the presence of counsel. The U.S. Supreme Court has said that the right to counsel involves special attention, North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

Based on Edwards, what is of import in these cases is whether the accused, after he has initially asserted the right to have counsel present, validly revokes that right. The U.S. Supreme Court has recently explained that the inquiry does not end if the accused initiates further contact with the police once he has asserted his right to counsel. The rule, the court found, was designed to prevent the “badgering” by police of defendants in custody. If the defendant is found to initiate further communication with the police, then Edwards is not violated but the court next inquires “whether a valid waiver of the right to counsel and the right to silence has occurred, that is whether the purported waiver was knowing and intelligent and found to be so under the totality of circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities,” Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405, 412 (1983). Courts must be cautious in determining whether a defendant has in fact had a “change of heart,” as in Frison and Bradshaw, or whether the police, through subtle pressure, forced him to give up those rights. In Commonwealth v. Gale, 315 Pa.Super. 59, 461 A.2d 634 (1983), the Superior Court found that the defendant knowingly waived his right to counsel after he was free on bail between the first interrogation, when he asserted a right to be questioned with counsel present, and the second meeting, when he gave up that right. The court found that defendant was able to consult with his attorney during the interim and understood his waiver, Gale, 315 Pa.Superior Ct. 62-63, 461 A.2d at 636. The Appellant, under the present facts, was not released from custody and had requested but did not receive the benefit of counsel between sessions with police. Each of these cases must be taken individually and no per se rules should be adopted, said the U.S. Supreme Court, Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). In Wyrick, when the defendant requested a polygraph exam and stated that he did not want counsel present during the exam, he “initiated” the meeting with police.

The U.S. Supreme Court has firmly stated that, “(a) valid waiver of (the right to counsel) cannot be established by a showing only that (the defendant) responded to further police-initiated custodial interrogation even if he has been advised of his rights,” Edwards, 451 U.S. at 484, 101 S.Ct. at 1885, 68 L.Ed.2d at 386. The Superior Court, in Commonwealth v. Hubble, 318 Pa.Super. 76, 464 A.2d 1236 (1983), using these principles, ruled that the defendant, after he asked for and attempted to contact his attorney, did not waive his right when police had reinstituted questioning. The Court found that since it was the police “who initiated the chain of events which culminated in Appellant’s inculpatory statement,” after he requested counsel’s advice, he was entitled to it, Hubble, 318 Pa.Superior Ct. 89, 464 A.2d at 1243. The trial court distinguished Edwards and found that the Appellant had waived his right to consult an attorney during questioning. On June 18, Police spoke with Appellant two days after he requested an attorney. They presented him with a waiver form, which he signed. He then delivered one of the statements he seeks to suppress. Even though Appellant’s statement may not have been in response to police questioning in particular, the fact that a waiver form was presented to him is persuasive of the fact that it was the police, and not the Appellant, who initiated the meeting. The facts do not indicate that Appellant asked to speak with police. Under Edwards and Bradshaw, a waiver cannot be valid if the defendant did not initiate the conversation. Police cannot be permitted to avoid Appellant’s request for representation of counsel merely by ending the questioning and reapproaching him at a later time with a waiver form in hand. Since it was the police who initiated the “chain of events which culminated in Appellant’s inculpatory statement,” Hubble, 318 Pa.Superior Ct. 89, 464 A.2d at 1243, the waiver is invalid and the June 18 statement must be suppressed.

The statement of June 18 was exculpatory in nature and so at first glance it would seem to have been harmless error to have allowed the Commonwealth to introduce Appellant’s statement that it had been Porter who had killed Potter. However, Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), clearly points out that even an exculpatory statement, when offered by the Commonwealth, has the effect of guilt by implication. This Innis Court said:

[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response 5 from the suspect.
5 By ‘incriminating response’ we refer to any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial. As the Court observed in Miranda:
"No distinction can be drawn between statements which are direct confessions and statements which amount to “admissions” of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely “exculpatory”. If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilty by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.’ 384 U.S., at 476-477, 16 L.Ed.2d 694, 86 S.Ct. 1602, [at 1628-1629], 10 Ohio Misc. 9, 36 Ohio Ops 2d 237, 10 A.L.R.3d 974.

Id. 446 U.S. at 301, 100 S.Ct. at 1689-1690.

We now turn to the admissibility of the June 24 statement. This statement was made at the prison when Appellant was being processed following his arrest. Appellant asked the detective if he wanted to know what had taken place on the 15 and 16 of June to which the officer replied, “Oh, yes.” The Appellant then gave the statement. The circumstances are similar to those in Oregon v. Brad shaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), where the defendant asked, after asserting his rights to a lawyer, “Well, what is going to happen to me now?” When the Appellant asked the officer if he wanted to know the events of the two-day period, there is little doubt that he was opening a discussion about his case. There is no evidence that an interrogation had been taking place. Nor can an interrogation be inferred from the detective’s response. The statement, under the analysis in Oregon v. Bradshaw, supra., is voluntary and was properly admitted into evidence.

Because we remand the case on this issue, we find it necessary to deal with the other issues raised by Appellant in order to guide the trial court on remand. They are:

1. Whether the trial court erred in:
a. permitting the Commonwealth to discover any and all reports relating to the insanity or mental infirmity of Appellant.
b. granting the Commonwealth’s petition for the production of records and other evidence.
2. Whether the trial court erred in allowing the testimony of Dr. Milton Bluitt, D.O. psychiatrist from the Y.A. Hospital, in violation of Appellant’s patient — physician privilege. .
3. Whether the trial court erred in admitting evidence of Appellant’s post-arrest request for counsel as evidence of mental competence.

The trial court did not err in permitting the Commonwealth to discover any and all reports relating to the insanity or mental infermity of Appellant or in granting the Commonwealth’s petition for the production of records and other evidence.

The Commonwealth, faced with the probability of proving defendant’s sanity beyond a reasonable doubt, Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980), first requested that Appellant agree to a competency exam. That request was met by Appellant’s refusal and assertion of his rights under 50 P.S. § 7402(e)(3) Mental Health Procedures Act. The Commonwealth then sought and received from the Y.A. Hospital records pertinent to Appellant’s case on or before June 15, 1981. The Commonwealth requested from Appellant copies of past medical records and reports prepared by Appellant’s expert psychiatrists. This request was also refused, and the Commonwealth filed a discovery motion under Pa.R.Crim.P. 305(C)(2)(a). The trial court granted the order after the Commonwealth offered proof that the information was both material and the request reasonable and that the Appellant had sought and obtained reciprocal discovery under Pa.R.Crim.P. 305(B)(1)(e). Portions of the reports, however, were deleted by the court.

The Commentary to Rule 305 states that:
In order to provide adequate information for informed pleas expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, the adversary system, and national security.

Under Pa.R.Crim.P. 305(C)(2)(a), such reports are, under the trial court’s discretion, discoverable. The Appellant argues that the Commonwealth in the first instance was not entitled to the reports because they are testimonial in nature, and, as such, violative of Appellant’s rights against self-incrimination. Secondly, the Appellant argues that the reports obtained directly from the V.A. Hospital were properly obtainable through discovery. We find both arguments meritless. The Commonwealth obtained the reports directly and the Appellant exercised rights to discover them from the Commonwealth. At any rate, these reports were discoverable at the court’s discretion. We will not disturb that use of discretion here.

Appellant’s second argument is that the testimonial nature of the expert’s reports removes them from the scope of discovery. We find no merit to this claim. The Appellant cites Commonwealth v. Pomponi, 447 Pa. 154, 284 A.2d 708 (1971) and Commonwealth v. Hale, 467 Pa. 293, 356 A.2d 756 (1976), as authority that psychiatric reports are protected by the 5th Amendment because their testimonial origin affects defendant’s self-incrimination rights. We agree with the trial court that these cases are clearly distinguishable on the facts. Those cases involved situations where the defendant was examined by a Commonwealth psychiatrist which was not so under the present facts. Also, the court reviewed such reports and removed the portions judged to be testimonial in nature and which would threaten Appellant’s rights. In Commonwealth v. Ruth, 309 Pa.Super. 458, 455 A.2d 700 (1983), this Court was confronted with a very similar situation. The court refused to allow such a limited interpretation of Rule 305— that all such reports were “mental” examinations and should be excluded from discovery. Finding that the trial court had edited portions of the reports, as in our case, the Superior Court allowed the discovery. This Court noted that the defendant could not point to any damaging portions in the transcript, Ruth, 309 Pa.Superior Ct. 464, 455 A.2d at 704. The Appellant here has also failed to show specific objections. No error.

Lastly, the trial court did not err in allowing the testimony of Dr. Bluitt, D.O., a psychiatrist from the V.A. Hospital. Appellant argues that the psychiatrist’s testimony should be excluded on the basis of privileged communications between patient and psychologists. The law which Appellant cites is 42 Pa.C.S.A. § 5944 which creates, in both civil and criminal cases, a privilege against revealing any information gathered from the psychologist-patient relationship. Appellant cites In re B, 482 Pa. 471, 394 A.2d 419 (1978) in support of his argument that a psychiatrist’s testimony should be included in the privilege with psychologists. The Supreme Court of Pennsylvania in that case found that although the statute itself did not bar the testimony of a psychiatrist about his treatment of the mother in a juvenile proceeding, certain privacy rights in the U.S. Constitution prevented the psychiatrist from testifying. Psychiatrists, under this state’s legislative history, have claimed their privilege under the physician-patient privilege. The older law, 28 P.S. § 328, Act June 7, 1907, P.L. 462, 50 P.S. § 7303(c), was repealed and replaced in 1978 by 42 Pa.C.S.A. § 5929 which states:

No physician shall be allowed in any civil matter, to disclose any information which he acquired in attending the patient in a professional capacity, which shall tend to blacken the character of the patient, without consent of said patient, for damages on account of personal injuries, 1976, July 9, P.L. 586, No. 142, § 2, eff. June 27, 1978, (emphasis added).

The previous section was found to apply only in civil cases, Commonwealth v. Edwards, 318 Pa. 1, 178 A.20 (1935). Within the civil context, the privilege extended to “communications” and not to “information gathered by the physician in examining the patient,” Massich v. Keystone Coal & Coke Co., 137 Pa.Super. 541, 10 A.2d 98 (1939). This being a criminal case, no privilege between physician and patient would apply. We are persuaded by the Commonwealth’s argument that this is especially true where Appellant has raised the issue of mental competency. Indeed, the Mental Health Procedures Act, 50 P.S. 7303(c) July 9, 1976, eff. September 9, 1976, specifically requires the testimony of the treating physician or psychiatrist when determining the need for involuntary commitment of an individual. The need can be seen in a criminal case where the defendant has raised the issue of his own insanity, placing the burden on the Commonwealth to prove his sanity beyond a reasonable doubt. See Commonwealth ex. rel Platt v. Platt, 266 Pa.Super. 276, 404 A.2d 410 (1979). Appellant claims that the section allowing a privilege in all cases between psychologists and their patients should be applied to psychiatrists. One court has interpreted the section as not applying to psychiatrists, Miller v. Colonial Refrigerated Transportation, Inc., 81 F.R.D. 741 (D.C.Pa.1979). Nowhere in the section is there a reference to psychiatrists. Indeed, the definition section, 63 P.S. § 1201, 1978, does not indicate that psychiatrists have been included in the section on physician — patient privilege.

We note, however, in allowing the psychiatrist’s testimony, that our Supreme Court indicates that the privacy rights must be considered as well. What has emerged in this area is the application of a balance between the public interest in having the person given proper care if needed and the individual’s privacy interest in having information regarding his mental state remain confidential, McKay v. Commonwealth, 52 Pa.Common. 24, 415 A.2d 910 (1980), Platt, 266 Pa.Super. 276, 404 A.2d 410 (1979). In this case, the need for the psychiatrist’s testimony in proving Appellant’s sanity beyond a reasonable doubt clearly outweighs Appellant’s expectations of privacy when he has put the issue before the court.

The final issue in this case is whether the trial court erred in allowing the Commonwealth to introduce evidence of Appellant’s post-arrest request for counsel to prove mental competence. The Commonwealth urges that the merits need not be decided as the issue waived by Appellant. We agree. Where the use of the evidence has caused prejudice to the accused, unless the court, at the request of the defense counsel, offers curative instructions to the jury, reversal must occur, Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979), Commonwealth v. Williams, 252 Pa.Super. 435, 381 A..2d 1285 (1977). Although the defense counsel objected to the offering of the evidence, when the court suggested curative instructions, the counsel chose not to have the instructions given. This Court said that where instructions could have removed the prejudice to the defendant, “(e)lecting against available relief at trial, Appellant may not now complain of prejudicial error,” Commonwealth v. Quartman, 253 Pa. Super. 460, 385 A.2d 429 (1978). The trial court, offering the instructions, committed no error.

Judgment of sentence is vacated and the case is remanded for a new trial.

Jurisdiction is relinquished.

WICKERSHAM, J., filed a dissenting statement.

WICKERSHAM, Judge, dissenting:

I would affirm the judgment of sentence on the opinion of the Honorable Warren G. Morgan filed in the trial court below.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    480 A.2d 1171
    COMMONWEALTH of Pennsylvania v. Charles BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1983.
    Filed July 27, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Thomas L. McGill, Jr., Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County.

Appellant, Charles Brown, was arrested on January 8, 1981 for the stabbing death of Theodore Walker, which had occurred approximately one month earlier. Appellant was sixteen (16) years of age at the time of arrest. Also arrested was a 21 year old co-defendant, William Wharton. Appellant was charged with possession of an instrument of crime, criminal conspiracy, robbery, murder, and involuntary manslaughter. Following a jury trial in late 1981, appellant was convicted of possession of an instrument of crime, criminal conspiracy, robbery, and murder in the second degree. Post-trial motions were filed and denied. On April 28, 1982, appellant was sentenced to concurrent terms of life imprisonment for murder, five (5) to ten (10) years for criminal conspiracy, and two and one-half (2V2) to five (5) years for possession of an instrument of crime. While the sentence was to be served at Graterford State Correctional Institution, it was recommended by the lower court that due to his age, appellant be permitted to serve his initial sentence at Camp Hill State Correctional Institution. This appeal timely followed.

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the testimony at trial established the following: On the evening of December 11, 1980, at approximately 11:30 p.m., Darryl Lamb and Michael Sawyer were standing on the street corner of Gratz and Susquehanna in Philadelphia, when they were joined by appellant and William Wharton. Wharton told the group that he needed money for Christmas. Wharton then took a knife from his pocket and began sticking it into a nearby wall. Then, leaving Lamb and Sawyer standing on the corner, appellant and Wharton began to walk down Susquehanna Avenue towards a sandwich shop. As appellant and Wharton approached the sandwich shop, the victim, Theodore Walker, a stranger to appellant and Wharton, came out of the shop. Appellant and Wharton walked towards the victim. As they passed him, Wharton tried to trip Walker, but instead fell down himself. Wharton got up, pulled a knife and he and appellant started to chase the victim, who had begun to run across the street. Walker fell, however, and as he tried to get up, Wharton stabbed him twice in the back. After appellant and Wharton went through the victim’s pockets, appellant said, “Let’s go” and he and Wharton ran down the street to their homes. On appeal, appellant raises two issues:

1. Whether the motion court erred in denying appellant’s motion to transfer his case and trial to the juvenile court where appellant demonstrated a need and amenability to the program of supervision, care and rehabilitative treatment he would receive as a juvenile?
2. Whether the trial court erred in failing to grant a mistrial, or give cautionary instructions where the prosecutor during closing argument expressed his opinion on the evidence and made statements designed to inflame the jury’s passions, and prejudice the appellant?

Brief for Appellant at 2.

The law applicable to the transfer of a criminal proceeding in which a juvenile is charged with murder is found in section 6322(a) of the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. That section states, in appropriate part:

[I]f it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. If it appears to the court in a criminal proceeding charging murder, that the defendant is a child, the case may similarly be transferred and the provisions of this chapter applied.

Pursuant to 42 Pa.C.S.A. § 6322(a), the court in a criminal proceeding against a juvenile charged with murder may transfer the action to juvenile court. However, treatment as a youthful offender is not a matter of right in such cases, and the determination of whether the interests of state and society require prosecution of murder on an indictment is left to the sound discretion of the common pleas court. Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975). Subject to the due process limitations of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), a decision whether to grant an application for transfer is within the sound discretion of the hearing judge.

Appellant argues that the hearing judge abused his discretion in refusing to transfer his murder charge from adult to juvenile court.

If appellant is to prevail, he must show a gross abuse of the broad discretion of the hearing judge who refused the transfer application. Such abuse may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based upon partiality, prejudice or ill will.

Commonwealth v. Romeri, 314 Pa.Super. 279, 291, 460 A.2d 1139, 1145, aff'd, 504 Pa. 124, 470 A.2d 498 (1983).

The burden of proof in a transfer from adult to juvenile court was articulated by the Pennsylvania Supreme Court in Commonwealth v. Pyle, supra:

Murder has always been excluded from the jurisdiction of the juvenile courts____ Having continued to place murder, even where a young offender is involved, within the original and exclusive jurisdiction of the adult court, the assumption that the need for adult discipline and legal restraint exists in cases of this heinous nature also continues. With this in mind it becomes the juvenile’s burden to show that he does not belong in the criminal court. In other words, it is the youth who must prove that he belongs in the juvenile setting by showing his need and amenability to the ‘program of supervision, care and rehabilitation’ which he would receive as a juvenile. In the event the evidence does not affirmatively demonstrate that he is the kind of youth who would benefit from the special features and programs of the juvenile court system and in the event no special reason exists for sparing the youth from adult prosecution and punishment (as for instance, evidence of mental illness or retardation) jurisdiction would necessarily remain within the criminal court system.

Id. 462 Pa. at 622-23, 342 A.2d at 106-07 (footnotes and citations omitted) (emphasis in original). See also, Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Barber, 275 Pa.Super. 144, 418 A.2d 653 (1980).

The Pennsylvania Supreme Court in Pyle went on to observe that the determinative factors in deciding whether a juvenile is amenable to juvenile treatment will differ from case to case, and it outlined an approach for determining whether to grant a transfer:

Such determination should be made after careful review of the individual child’s personal make-up, {e.g., mental capacity and maturity as determined by consideration of his home and school environmental situation, emotional attitude, and pattern of living) his previous history (including any previous contact with law enforcement agencies and/or juvenile courts) and the nature and circumstances of the alleged homicide {e.g., inquiry into whether the killing was committed in an aggressive, violent or wilful manner, whether the safety of the community requires lengthy incarceration, whether it is more desirable to dispose of the entire offense in one court should the juvenile’s associates in the alleged homicide be adults not within the juvenile jurisdiction).

Commonwealth v. Pyle, supra 462 Pa. at 623 n. 13, 342 A.2d at 106-07 n. 13 (citations omitted) (emphasis in original). See also, Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); Commonwealth v. Romeri, supra.

In the instant case, appellant was arrested approximately eleven days before his seventeenth birthday. He was then in the twelfth grade. A decertification hearing was begun on June 4 and concluded on June 19, 1981. On June 25, 1981, the motion to transfer the case to juvenile court was denied. Upon a careful reading of the transcript of the decertification hearing, the opinion of the lower court, the briefs of the parties, and the relevant case law, we find no abuse of discretion in this case. Appellant simply failed to prove that he belongs in the juvenile setting.

Appellant based his transfer request primarily upon his alleged need for the education, vocational, and rehabilitative care that he would receive as a juvenile. Appellant presented testimony of a psychologist who described appellant as an individual who possessed average intelligence, with no evidence of a mental disorder, who was motivated both academically and occupationally, with a “good” attendance and scholastic record at school, who preferred to avoid trouble, who was “feeling” oriented, and who had no previous disciplinary problems or prior arrests. Testimony by appellant’s mother and the custodian of records for the Philadelphia Board of Education confirmed much of the psychologist’s testimony. However, upon cross-examination of these witnesses, it was determined that appellant occasionally got into fights, had once been suspended from school, had several unexcused absences from school, and had no significant work history. More importantly, the psychologist testified that:

I asked him if he felt he would fall apart or be taken advantage of in an adult facility. He indicated that he felt that he could handle himself in an adult institution. My findings agree with that, that he probably would not deteriorate or show any significant emotional problem.

(N.T., June 4, 1981, at 7-8).

I don’t think he really has a strong need for counseling, except perhaps in terms of that cautious attitude.

(N.T., June 4, 1981, at 9).

Q Is there anything about the defendant that you think would require any of the special provisions of the juvenile system, sir, as opposed to the adult system?
A Well, as I have expressed before, in the juvenile system, a primary part of the treatment and of the approach is based around education and training, whereas in the adult system that’s a fringe benefit. So while he might be able to get those things in the adult system, they are a lot less readily available, whereas if he were in the juvenile system, they would insist — places like St. Gabriel’s and Glen Mills structure their program around education, vocational training and counseling. So in that sense I think he would meet those needs far better than in the adult system.
Q Other than that, though, there is nothing that he really needs that the juvenile system would provide and that the adult system would not provide?
A Other than that, no, to my knowledge there is nothing, except that, as I say, I think he could be managed and supervised in a juvenile setting. Above and beyond what I have mentioned, there would be no specific need that the juvenile system would fulfill and that the adult system would not fulfill.

(N.T., June 4, 1981, at 12-13).

The Commonwealth’s witness, who was Chief of the Juvenile Court Unit, testified that appellant would be offered about three times as many educational and vocational opportunities in an adult facility such as Camp Hill as he would be in a juvenile facility. (N.T., June 19, 1981, at 5-6).

Considering all of the above, as well as the facts surrounding the circumstances of the murder itself, and the fact that appellant’s co-defendant was an adult, we find that appellant’s “need for care, guidance and control as a juvenile is outweighed by the state and society’s need to apply legal restraint and discipline as an adult.” Commonwealth v. Romeri, supra, 314 Pa.Super. at 294, 460 A.2d at 1146. The lower court’s decision to retain jurisdiction over the case was reasonable and will not be disturbed on appeal. There has been absolutely no showing that appellant’s need for juvenile care and rehabilitation, given the time limitations applicable to juvenile cases, outweighed society’s interest in adult prosecution and punishment.

We find appellant’s remaining issue to be meritless. Appellant urges us to hold that the lower court erred when it failed to grant a mistrial or give cautionary instructions because of alleged prosecutorial misconduct during summation to the jury. Specifically, appellant draws our attention to three statements made by the prosecutor.

It is well established that a district attorney must have reasonable latitude in presenting a case to the jury and that he must be free to present his arguments with “logical force and vigor.” Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980), quoting Commonwealth v. Cronin, 464 Pa. 138, 143, 346 A.2d 59, 62 (1975). His remarks to the jury may contain fair deductions and legitimate inferences from the evidence presented during the testimony. Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973); Commonwealth v. Stevens, 276 Pa.Super. 428, 419 A.2d 533 (1980). He may always argue to the jury that the evidence establishes the defendant’s guilt. Commonwealth v. Capaila, 322 Pa. 200, 185 A. 203 (1936). It is also well established that a prosecutor may not offer his personal opinion as to the guilt of the accused either in argument or in testimony from the witness stand. Commonwealth v. DiNicola, 503 Pa. 90, 468 A.2d 1078 (1983); Commonwealth v. Smith, supra; Commonwealth v. Kuebler, 484 Pa. 358, 399 A.2d 116 (1979); Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978); Commonwealth v. Cronin, supra; Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974).

However, as we recently stated:

“[N]ot every intemperate or uncalled for remark by the prosecution requires a new trial.” Commonwealth v. Youngkin, [285 Pa.Super. 417, 430], 427 A.2d 1356, 1362 (1981). See also Commonwealth v. Goosby, 450 Pa. 609, 611, [301 A.2d 673, 674] (1973). Although a prosecutor’s trial conduct must be neither vindictive nor in any manner influence the jury by arousing their prejudices, Commonwealth v. Starks, 479 Pa. 51, 56, [387 A.2d 829, 831] (1978), “[c]omments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Van Cliff, 483 Pa. [576], 582, 397 A.2d 1173, [1176] (1979), quoting Commonwealth v. McNeal, 456 Pa. 394, 400, [319 A.2d 669, 673] (1974).

Commonwealth v. Lacy, 324 Pa.Super. 379, 383, 471 A.2d 888, 890 (1984). See also, Commonwealth v. Upsher, 497 Pa. 621, 627, 444 A.2d 90, 93 (1982).

Furthermore, the prejudicial effect of the prosecutor’s remarks must be evaluated in the context in which they occurred. Commonwealth v. DiNicola, supra 503 Pa. at 102, 468 A.2d at 1084; Commonwealth v. Smith, supra; Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). Also, we note that:

[W]hether this standard has been violated by the language of the district attorney is not in the first instance our decision to make. It is the duty of the trial judge to rule upon the comments; this Court is limited in its review to whether the trial court abused its discretion.

Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968).

The prosecution’s primary witness against appellant was Darryl Lamb, a friend and classmate of appellant and an eyewitness to the murder and robbery. During his closing argument to the jury, appellant’s trial counsel vigorously attacked Mr. Lamb’s credibility, and attempted to argue that Mr. Lamb had testified falsely because he and appellant belonged to different “corners” or “gangs.” Following objection by the prosecutor, defense counsel continued to attack Mr. Lamb’s credibility by suggesting that Mr. Lamb was under pressure to testify against appellant, and that he was therefore motivated to lie on the witness stand. During rebuttal, the prosecutor argued that Mr. Lamb was credible and had no motive to lie, “because he’s known [appellant] for five years, because he has known the [co-defendant] for some time before that. Because he’s got to live in the same neighborhood.” (N.T., Trial, at 899).

Appellant objects to the last statement as an expression of personal opinion by the prosecutor. We, ljke the lower court, view the statement as a reasonable inference and fair deduction based upon evidence adduced at trial as to the relationship between appellant and Mr. Lamb. Both appellant’s and his co-defendant’s addresses had been testified to, and that Mr. Lamb lived nearby could be fairly deduced from his testimony.

Likewise, the prosecutor’s remark concerning the fact that the victim’s pockets were empty was loosely based upon testimony of record. Appellant and Wharton went through the victim’s pockets after he was stabbed. A set of keys and a cap were found lying on the street near the victim. The victim lived in San Francisco, was in Philadelphia to visit his sister for the holidays, and was identified by a bus ticket found on his body. Finally, the victim had just come out of a store before the incident.

The prosecutor inferred that since most people travel with money and since the victim was found without any money on his person, he must have been robbed. We find this inference to be somewhat tenuous and speculative. Even though the statement falls on the borderline of permissibility, we find, nonetheless, that its impact on the jury was not so prejudicial as to require the trial court to declare a mistrial, or to require us to reverse the judgment of sentence and remand for a new trial.

The remaining statement of the district attorney is likewise not tantamount to prosecutorial misconduct warranting the grant of a new trial. The district attorney was again discussing the charge of robbery and stated:

There is no separate section of the code on attempted robbery. Robbery is either the actual successful completion of the crime or an attempt to do so. That’s robbery. If you believe Darryl Lamb when he said that Mr. Brown was next to Mr. Wharton, when Mr. Wharton tripped him and then was running after him swinging at him a couple of times and then after coming back and running past him, after the defendant — excuse me, the decedent had been stabbed by Mr. Wharton, and then Mr. Lamb said that Mr. Brown went through the pockets of the deceased, that’s robbery. Whether he got anything or not, it’s robbery. That’s the law.

(N.T., Trial, at 406).

Appellant argues that these statements were the prosecutor’s personal opinion, and amounted to an invasion of the province of the jury. We read the prosecutor’s statement not so much as a personal opinion of the guilt of appellant, but as an argument that the evidence proves appellant guilty as charged. See Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976). The argument is more properly characterized as advocating conclusions which the jury could properly draw themselves from the evidence presented. It was made clear to the jury from repeated statements made by both the prosecution and defense counsel that nothing said by either was to be considered as evidence by the jury. (N.T., Trial, at 77, 357-58, 360, 379-80, 383-84, 427-28). The jury was also cautioned by the judge on that point. (N.T., Trial, at 70-71, 379, 460-61). Furthermore, the court carefully charged the jury as to the correct law on robbery. (N.T.. Trial, at 475-77). We believe that any possible prejudice derived from the prosecutor’s statement was successfully neutralized by these other statements by the attorneys and the trial court.

Therefore, finding neither of appellant’s issues on appeal to contain merit, we affirm the judgment of sentence of the lower court.

Judgment of sentence affirmed.

      . Appellant's co-defendant, William Wharton, was convicted of the same crimes at a separate jury trial before another judge.

      . Sentencing on appellant’s conviction for robbery was suspended because it merged with his conviction for murder in the second degree.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, as amended April 28, 1978, P.L. 202, No. 53, § 10(85), effective June 27, 1978; 42 Pa.C.S. § 6322(a).

      . We note that, while it is not precedential because it expressed the view of a single justice, Mr. Justice O’Brien’s opinion in Commonwealth v. Wade, 485 Pa. 453, 402 A.2d 1360 (1979), correctly states that under the Juvenile Act, the Legislature had decided that the crime of murder, whether committed by an adult or a juvenile, is of such serious nature as to originally exclude a juvenile accused of murder from the benefits and special treatment afforded by the Act. In light of the disparity in sentencing procedures (under the Juvenile Act, 42 Pa.C.S.A. § 6353(a), initial incarceration of juveniles cannot extend beyond three years; under the Crimes Code, 18 Pa.C.S.A. § 1102, second degree murder is punsihable by life imprisonment), and while trying to protect public safety, the Legislature excluded the crime of • murder from the original jurisdiction of juvenile court. Id., 485 Pa. at 463, 402 A.2d at 1365.

      . Apparently, appellant, his co-defendant and Mr. Lamb all lived within two blocks of each other at the time of this incident.

      . The prosecutor’s exact statement was as follows:
      Robbery is basically a forceful theft, a forceful taking from somebody else, the property he has.
      When Officer Addlesburger testified in this courtroom and he said that he picked up the body of the deceased and transported him to Temple Hospital, he found a bus ticket in his pocket. A bus ticket that brought him from San Francisco to Philadelphia. To visit his friends and his family for Christmas. A bus ticket. Nothing else was said. A man doesn’t travel across country without money in his pocket.
      (N.T., Trial, at 402).


author: ROWLEY, Judge: WIEAND, Judge, concurring:

text:
    480 A.2d 1178
    Joseph BARTANUS, Sr., Appellant, v. Bernard V. LIS and Bertha Lis, his wife and Sandra Lis Marshall.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Filed July 27, 1984.

      Wieand, J., concurred and filed opinion.

      Edward Morascyzk, Washington, and B. Vandenburg Hall, Fairfax, Va., for appellant.
    Roger J. Ecker, Washington, for appellees.
    Before ROWLEY, WIEAND and HESTER, JJ.
   ROWLEY, Judge:

This is a direct appeal from an order sustaining appellees’ preliminary objections to appellant’s complaint in trespass and entering judgment in favor of appellees. Appellant’s complaint alleged that appellees, his sister and brother-in-law and their daughter, enticed and persuaded appellant’s son to stay away from his father and that, as a result, appellant suffered severe emotional stress and physical disorders for which he is entitled to recover damages. Appellees filed preliminary objections to the complaint in the nature of a demurrer and also raising the bar of the two year statute of limitations. The trial court sustained the preliminary objections and entered judgment in favor of appellees, stating that the “definitive nature” of the objections precluded further pleading. This appeal followed.

Appellant contends that the facts averred in his complaint support causes of action for (1) alienation of his son’s affections, (2) harboring, and (3) the intentional infliction of emotional distress. We affirm the trial court’s order insofar as it sustained the demurrer to the purported causes of action for alienation of affections and harboring. However, we find that the complaint alleges sufficient facts to sustain a potential cause of action for the intentional infliction of emotional distress and, thus, insofar as the trial court’s order entered judgment against appellant regarding that claim for relief, we reverse.

In considering preliminary objections in the nature of a demurrer, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 503-504, 267 A.2d 867, 868 (1970). A demurrer admits every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, but not conclusions of law. Sinn v. Burd, 486 Pa. 146, 149-150, 404 A.2d 672, 673-674 (1979); Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 37 (1982). The law does not provide a “magic formula” to determine the sufficiency of a plaintiff’s complaint, however, the law is clear that a demurrer can only be sustained in a case free from doubt. Hoffman v. Misc.cordia Hospital of Philadelphia, supra; Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. at 500, 450 A.2d at 38; Pike County Hotels Corp. v. Kiefer, 262 Pa.Super. 126, 135, 396 A.2d 677, 681 (1978).

In the instant case, the trial judge sustained appellees’ demurrer to the complaint upon his determination that, in Pennsylvania, a parent has no cause of action against a third party for the alienation of the affections of a minor child. We agree.

The question whether a parent may recover from a third party for the alienation of the affections of his or her child appears to be a matter of first impression in our Commonwealth. At one time, Pennsylvania recognized a common-law cause of action for alienation of the affections of a husband or wife, see Keath v. Shiffer, 37 Pa.Super. 573 (1908). However, all such causes of action were abolished by statute in 1935. 48 Pa.C.S.A. § 170; see Antonelli v. Xenakis, 363 Pa. 375, 69 A.2d 102 (1949). In general no cause of action for the alienation of the affections of a child was recognized at common law. See Miles v. Cuthbert, 122 N.Y.S. 703 (1909); Pyle v. Waechter, 202 Iowa 695, 210 N.W. 926 (1926); Schuppin v. Unification Church, 435 F.Supp. 603, 608 (D. Vermont) aff'd 573 F.2d 1295 (2 Cir. 1977). The RESTATEMENT (SECOND) OF TORTS § 699 (1977) provides:

One who, without more, alienates from its parents the affections of a child, whether a minor or of full age, is not liable to the child’s parents.

In accordance with the position expressed in the Restatement, the majority of jurisdictions that have considered this question have refused to recognize a cause of action by a parent for alienation of a child’s affections. See Hyman v. Moldovan, 166 Ga.App. 891, 305 S.E.2d 648 (1983); Scholz v. Scholz, 177 N.J.Super. 647, 427 A.2d 619 (1980); Edwards v. Edwards, 43 N.C.App. 296, 259 S.E.2d 11 (1979); Bock v. Lindquist, 278 N.W.2d 326 (Minn.1979); McGrady v. Rosenbaum, 62 Misc.2d 182, 308 N.Y.S.2d 181 (1970), aff'd 37 A.D.2d 917, 324 N.Y.S.2d 876 (1971); Ronan v. Briggs, 351 Mass. 700, 220 N.E.2d 909 (1966); Pyle v. Waechter, 202 Iowa 695, 210 N.W. 926 (1926); see also, Orlando v. Alamo, 646 F.2d 1288 (8th Cir.1981) (applying Arkansas law); Schuppin v. Unification Church, supra. Most courts have refrained from embracing an action for alienation of a child’s affections, “in the absence of either seduction or removal from home.” Prosser, THE LAW OF TORTS, § 124 at 883 (4th ed. 1971); The RESTATEMENT (SECOND) OF TORTS § 699, comment a (1977). Our research has disclosed only one modern ease wherein a state court has recognized such a cause of action. See Strode v. Gleason, 9 Wash.App. 13, 510 P.2d 250 (1973) (intermediate appeals court held that a parent has a cause of action for compensatory damages against a third party who maliciously alienates the affections of a minor child, however, action was barred by statute of limitations).

Indeed, sound policy reasons militate against judicially creating a cause of action for the alienation of a child’s affections. We find the Minnesota Supreme Court’s reasoning in Bock v. Lindquist, 278 N.W.2d 326 (Minn.1979) (en banc) persuasive. In that case, the court articulated the following reasons in support of its refusal to sanction this cause of action:

The circumstances under which the right has been asserted demonstrate the potential for grave abuses, in which a child becomes the object of intra-family controversy, and, indeed, a pawn in disputes over monetary matters. In the more usual case of marriage dissolution resulting in deteriorated relationships, a cause of action by one parent against another for alienation of a child’s affections would exacerbate the unhappy relationships and become a strategic tool for advantageous use of one family member over another.

Id. at 327-328.

Accordingly, we hold that a cause of action by a parent for the alienation of a child’s affections is not cognizable in Pennsylvania.

Appellant also argues that his complaint avers facts sufficient to set forth a cause of action for “harboring” a minor child. We are aware of no case in Pennsylvania that deals specifically with an action for harboring. Other jurisdictions, however, have recognized a cause of action for enticing or inducing a child to remain away from home. See e.g. Hinton v. Hinton, 436 F.2d 211 (D.C.Cir.1970) aff'd 492 F.2d 669 (D.C.Cir.1974); RESTATEMENT (SECOND) OF TORTS § 700 (1977). According to the Restatement, § 700, in order to establish that a third party has “harbored” a child, the facts must show an interference with the interests of the child’s parents or other lawful custodian. Furthermore, the facts must demonstrate that the actor induced or enticed the child to remain away from home with knowledge that the parent or other lawful custodian did not consent.

Even if Pennsylvania were to recognize a cause of action under Restatement, § 700 for haboring a child, the facts averred in the instant complaint would be insufficient to satisfy the elements of such an action. The complaint herein does not aver that appellant had lawful custody of his son at the time of appellees’ allegedly tortious acts. Indeed, the record discloses that appellant’s son has lived with appellees in Avella, Pennsylvania since 1963, when he was less than two years of age. A dispute over legal custody did arise in 1978. However, the dispute was resolved by a stipulation dated April 17, 1978, wherein the parties agreed that the child would remain in appellees’ custody. Therefore, appellees did not interfere with appellant’s custody rights without his consent by continuing to provide a home for his son.

Appellant further maintains that his complaint avers facts sufficient to make out a claim against appellees for the intentional infliction of emotional distress. From the record in this case, it is unclear whether this issue was raised in the trial court. Nor can we determine whether the trial court considered the claim when it sustained appellees’ preliminary objections and entered judgment in their favor. We note that appellant’s complaint is not properly divided into separate counts for the causes of action now asserted. Pa.R.C.P. 1020(a). Rather, the complaint sets forth one count for alienation of affections and a second count for punitive damages which incorporates the allegations in the first count. The procedural error, however, is not one which necessarily forecloses the substantive rights of the parties. Pa.R.C.P. 126 (“[t]he court at every stage of any ... action ... may disregard any error or defect of procedure which does not affect the substantial rights of the parties”). See General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 167, 199 A.2d 540, 543 (1964); Louis v. Clark, 227 Pa.Super. 547, 550-555, 323 A.2d 298, 299-300 (1974); Philadelphia v. Konopacki, D & C 3d 535, 538 (1975). Moreover, the appellees did not challenge the form of the complaint in their preliminary objections, and they have not raised this issue on appeal. Thus, this claim of error has been waived. Pa.R.C.P. 1032; Goodrich AmRam 2d § 1032:2 (1976); Hohlstein v. Hohlstein, 223 Pa.Super. 348, 296 A.2d 886 (1972).

Even though appellant did not separate his factual allegations into separate counts specifying the legal theories underlying the complaint, the trial court was obligated to consider what causes of action were supported by the facts alleged. Under Pennsylvania’s fact pleading system, the complainant need only state the material facts upon which a cause of action is based. Pa.R.G.P. 1019(a). The duty to discover the cause or causes of action rests with the trial court. Delconte v. Stefonick, 268 Pa.Super. 572, 408 A.2d 1151 (1979); Philadelphia v. Konopacki, 2 D & C 3d at 538-540. It appears that the trial court herein concluded that appellant’s complaint only sought to raise a cause of action for alienation of his son’s affections. We find, however, that accepting as true all well-pleaded factual allegations in the complaint, it is sufficient to sustain an action for the intentional infliction of emotional distress.

The relevant facts set forth in appellant’s complaint are as follows. Joseph Bartanus, Sr., is the father of Joseph Jack Bartanus, Jr. (Joseph Jr.), who was bom on May 31, 1961. Joseph Jr.’s mother is Anne Hamprecht Bartanus, appellant’s former wife, who now lives in Germany. Appellant and Joseph’s mother were divorced in 1963. In May of 1963, appellant asked Bertha B. Lis, his sister, and Bernard V. Lis, her husband, appellees in this action, to raise his son while he was on assignment for the United States Government in places outside the United States. While appellees cared for his son, appellant initially sent $50.00 monthly payments to appellees’ home in Avella, Pennsylvania, and provided clothing and medical expenses for his son. Appellant also set up a trust fund and purchased insurance for his son’s benefit.

From 1964 through 1972, appellant was assigned to various posts. When he was allowed thirty days leave every two years, he travelled to Pennsylvania to visit his son. The monthly support check that he sent to appellees gradually increased to $180.00 per month. Appellant also sent clothes and recreational items to his son during this time. In 1972, appellant retired and moved to Avella, Pennsylvania. From 1972 through 1977, appellant spent a great deal of time with Joseph Jr. and they developed a good relationship. However, Joseph Jr. continued to reside with appellees.

In 1977, appellant proposed that his son live with him in Florida while he completed his senior year in high school. Appellant made this suggestion to his sister while she was a passenger in his car. At that time she flew into a rage, calling appellant names, using abusive language, and threatening him with bodily harm, in the presence of his son. When the suggestion was made to Bernard Lis, he too said foul things about appellant and threatened him with bodily harm. Appellant was afraid of his brother-in-law because he knew him to be of a violent nature.

Appellant’s sister often represented that Joseph Jr. was her son and he was listed in school with the last name of “Lis”. Appellees attempted to adopt Joseph Jr. and officially change his name without notifying appellant: they told Jr. that appellant did not love him; they prevented Jr. from visiting his relatives; and, they told him that his father’s house had rats and was dirty and that he could get poisoned from being there.

Nevertheless, when Joseph Jr. was seventeen, he accompanied his father to Munich, Germany, to live with him for one year. Joseph Jr. wrote to appellees and explained that it was his own decision to live with his father. Appellees’ letters to Joseph Jr. continually disparaged appellant, describing him as a whoremaster, liar, and con artist who really did not love his son. Appellees repeatedly telephoned Joseph Jr. while he was in Germany with his father and threatened to commit suicide unless he returned to Pennsylvania. They urged him to write to his congressman and tell him that he had been kidnapped by his father. At the behest of appellees, Joseph Jr. wrote a note to his father that he did not have long to live and that God would punish him.

When Joseph Jr. became moody and unhappy, appellant sent him back to Pennsylvania. Since 1977, appellant has seen his son six times because appellees have persuaded Joseph Jr. to stay away from his father. Paragraphs 54 and 55 of the complaint specifically state:

54. That the plaintiff/father has, as a result of being deprived of seeing his son and as a result of the defendant’s maliciously and viciously destroying his good relationship with his son, the plaintiff has suffered severe emotional distress, a great loss of sleep, he passes blood, perspires a great deal while trying to sleep, mental pain, anguish, nervousness and high blood pressure.
55. That co-defendants have by their intentional, reckless and wanton acts, caused plaintiff severe emotional distress; that the conduct of co-defendants was outrageous and intolerable and offends against the generally accepted standards of decency and morality; that because of this plaintiff has experienced and continues to experience severe emotional distress in that he has lost the love and affection of his only child, the normal prop of old age; he is lonely and nervous and has trouble sleeping; that he faces a lonely and bleak old age. (emphasis added.)

An action for the intentional infliction of mental or emotional distress has been recognized in Pennsylvania. See, Papieves v. Lawrence, 487 Pa. 873, 263 A.2d 118 (1970); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981); Beasley v. Freedman, 256 Pa.Super. 208, 389 A.2d 1087 (1978); Jones v. Nissenbaum, Rudolph, and Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976); see also Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.1979) and Beidler v. W.R. Grace, 461 F.Supp. 1013 (E.D.Pa.1978) aff'd 609 F.2d 500 (3 Cir.1979) (applying Pennsylvania law). Section 46 of the RESTATEMENT (SECOND) OF TORTS (1965) sets forth the basic elements of this action:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

In Papieves v. Lawrence, supra, our Supreme Court, relying in part on Section 46 of RESTATEMENT (SECOND) OF TORTS, determined that an individual is entitled to protection from mental distress directly caused by wanton and outrageous conduct. 437 Pa. at 378, 263 A.2d at 121. In describing what constitutes “outrageous” conduct, Comment d to Section 46 of the RESTATEMENT explains:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

We note that the Pennsylvania decisions sanctioning actions for the intentional infliction of emotional distress involve situations different than the one in the instant case. For example, in Banyas v. Lower Bucks County Hospital, supra, the court found that the hospital and treating physicians could be held liable for intentional or reckless infliction of emotional distress if the doctors at the hospital had, in fact, falsely prepared hospital records attributing a patient’s death solely to injuries inflicted by plaintiff. 293 Pa.Super. at 127, 437 A.2d at 1239. Similarly, in Chuy v. Philadelphia Eagles Football Club, supra, the court found that the evidence supported a claim for intentional infliction of emotional distress where a newspaper article reported a physician’s false statement that a professional athlete suffered from a fatal disease. 595 F.2d at 1273-1276. Although the facts are different, the basis claim alleged in the case at bar is the same — that is — that appellee’s outrageous conduct has caused appellant to suffer severe emotional or mental distress for which he is entitled to recover damages.

Other jurisdictions have upheld this cause of action in situations involving a parent’s relationship with his or her child. In Sheltra v. Smith, 136 Vt. 472, 392 A.2d 431 (1978), the plaintiff alleged that the defendant had intentionally, maliciously, and outrageously prevented any personal contact or other communication between the plaintiff and her daughter, thereby causing the plaintiff to suffer extreme mental distress. The trial court dismissed the complaint for failure to state a cause of action. The Vermont Supreme Court reversed, holding that the facts averred were adequate to sustain a cause of action for the newly recognized tort of intentional infliction of emotional distress. See also, Kajtazi v. Kajtazi, 488 F.Supp. 15, 20-21 (E.D.N.Y.1978) (court upheld cause of action for the intentional infliction of emotional distress inter alia where the father abducted child from the legal custody of his wife).

As recognized by our Supreme Court in Papieves v. Lawrence, supra, the intentional infliction of emotional distress is an evolving tort and its scope has not yet been clearly defined. 437 Pa. at 378, 263 A.2d at 121. However, under the principles set forth in those authorities upholding it, we believe that if appellees did engage in the conduct described in the complaint in this case, they could be held liable for emotional and mental distress suffered by appellant. The complaint alleges intentional misrepresentations made to an adolescent by his aunt and uncle concerning the morals and behavior of his father. The actions outlined in the complaint may be of the extreme and outrageous nature contemplated by Comment d to RESTATEMENT § 46. Accepting appellant’s version of the facts as true, as we must at this time, it appears that appellees intentionally manipulated appellant’s son in a manner “peculiarly calculated” to cause appellant serious mental or emotional distress. Id. If appellees did act intentionally, there need not be a showing that they were aware of the natural and probable consequences of their actions. Rather, it is enough that appellant was substantially certain to suffer severe mental or emotional distress as a result of their alleged tortious conduct. See, Banyas v. Lower Bucks County Hospital, 293 Pa.Super. at 127, 437 A.2d at 12, Chuy v. Philadelphia Eagles Football Club, 595 F.2d at 1275; RESTATEMENT (SECOND) OF TORTS § 46, comment i (1965).

The application of this tort to circumstances involving intra-family disputes may result in some difficulties. However, this case does not involve a dispute between the natural parents. We do not perceive, therefore, that an action for intentional infliction of emotional distress in this situation is subject to the same potential abuses attendant to an action for the alienation of a child’s affections. Contra, McGrady v. Rosenbaum, 62 Misc.2d 182, 189, 190, 308 N.Y.S.2d 181, 189-190 (1970) aff'd 37 A.D.2d 917, 324 N.Y. S.2d 876 (1971). In an action for the intentional infliction of emotional distress, the central inquiry is whether there was intentional, outrageous conduct and whether the plaintiff suffered severe distress as a result of that conduct. The focus, then, is on the effect the conduct has on the plaintiff. Whether the conduct actually alienated the child may be irrelevant. Conversely, in an action for alienation of the affections of a child, it is not necessary that the conduct involved be outrageous and, more importantly, the focus is on the effect the prohibited conduct has on the child. Thus, it is imperative to determine whether the child was, in fact, alienated from his parent or parents.

Furthermore, there are built in limitations in the application of the newly recognized tort of intentional infliction of emotional distress. In holding that a plaintiff could recover for serious mental or emotional distress caused by the intentional act of mishandling the body of a deceased relative, our Supreme Court observed:

We recognize that any extension of legal liability to acts which cause emotional distress is not without its problems. We also recognize that the law cannot serve to guarantee all men’s peace of mind; as the late Judge MAGRUDER remarked, “Against a large part of the frictions and irritations and clashing of temperaments incident to participation in a community life, a certain
toughening of the mental hide is a better protection than the law could ever be.” [Magruder, “Mental and Emotional Disturbance in the Law of Torts”, 49 Harv.L.R. 1033 (1936)]
But this case is not in that category. There can be little doubt that mental or emotional disorders brought on by conduct such as that set forth in the complaint at bar may be every bit as real, every bit as debilitating as ailments which have more obviously physical causes. For this reason, the obvious and inherent difficulties of the proof, or disproof, of emotional distress and the measurement of damages for such injury are not adequate cause, standing alone, to deny recovery ...
It goes without saying that in order to recover, a plaintiff asserting such a cause of action must be able to prove all the elements of his case by proper evidentiary standards.

Papieves v. Lawrence, 437 Pa. 373, 378-379, 263 A.2d 118, 121 (1970).

Therefore, we conclude that appellant herein should be afforded the opportunity to attempt to prove that appellees’ conduct caused him to suffer severe mental and emotional distress. We find that appellant set forth sufficient facts in his complaint to overcome a ruling against him as a matter of law.

Finally, appellees maintain that, even if appellant’s complaint sets forth a valid cause of action for intentional infliction of emotional distress, it is nonetheless barred by the applicable two year statute of limitations governing actions for personal injuries. 42 Pa.C.S.A. § 5524(2). We cannot decide this claim on the record before us. The order of the trial court in this case sustained appellees’ preliminary objections raising the bar of the statute of limitations regarding the claim for the alienation of a child’s affections. It appears from the trial court’s opinion, that the objection was sustained upon a determination that appellant’s son was not a minor at the time suit was instituted. There is no indication, however, that the trial court considered whether the two year statute of limitations barred an action for the intentional infliction of emotional distress, nor can we determine whether appellees advanced this argument in the court below.

We point out that the statute of limitations applicable to actions for personal injuries is a waivable defense. Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969); Leister v. Miller, 376 Pa. 452, 103 A.2d 656 (1954); Thompson v. Southeastern Pennsylvania Transportation Authority, 280 Pa.Super. 193, 421 A.2d 471 (1980), and thus, it should not have been raised by preliminary objection. Pa. R.C.P. 1017(b)(4). The statutory limitation is an affirmative defense that is properly raised by New Matter in a responsive pleading. Pa.R.C.P. 1030; Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972); Royal Oil & Gas Corp. v. Tunnelton Mining Co., 444 Pa. 105, 282 A.2d 384 (1971). Accordingly, appellees’ preliminary objections raising the statute of limitations did not warrant dismissal of the complaint in this case. Blair v. Guthrie Development Corp., 305 Pa.Super. 292, 451 A.2d 537 (1982).

Moreover, it is not clear from the present record that appellant filed his claim after the statute of limitation had expired. Reading the averments in paragraphs 52 and 53 together, it can be inferred that appellees engaged in a continuing course of conduct designed to influence Joseph to stay away from his father.

Order affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.

WIEAND, J., files a concurring opinion.

WIEAND, Judge, concurring:

The issue in this difficult case is whether a father has a cause of action against a sister and brother-in-law for inducing a son to reject his father and refuse his father’s entreaties to return to the father’s home.

I agree fully with the majority that the appellant father cannot maintain an action for the mere alienation of his son’s affections. Because the reasons for disallowing such a cause of action are sound, I would not circumvent them by allowing a similar action under the guise of a tort action for intentionally inflicted emotional distress.

However, I would hold that where there is an intentional interference with a parent’s custody of his or her child, the injured parent is entitled to a remedy. Interference with custody rights of a parent has been recognized as a tort by the Restatement (Second) of Torts § 700 as follows:

One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.

Under this rule, liability arises from interference with the parental relationship. See: Wood v. Wood, 338 N.W.2d 123 (Iowa 1983); Kramer v. Leineweber, 642 S.W.2d 364 (Mo. Ct.App.1982); Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983). See also: Kajtazi v. Kajtazi, 488 F.Supp. 15 (E.D. N.Y.1978); Brown v. Brown, 338 Mich. 492, 61 N.W.2d 656 (1953) , cert. denied, 348 U.S. 816, 75 S.Ct. 27, 99 L.Ed. 644 (1954) ; LaGrenade v. Gordon, 46 N.C.App. 329, 264 S.E.2d 757 (1980). There is no requirement that the plaintiff-parent have a custody order or that the defendant be a parent or spouse. See: Brown v. Brown, supra; Kramer v. Leineweber, supra; Plante v. Engel, supra. The right of action is based not only on the loss of the child’s services but also on the parent’s right to the companionship of the child. See: Kajtazi v. Kajtazi, supra; Wood v. Wood, supra. Damages recoverable in such an action include the loss of society of the child and mental distress. Restatement (Second) of Torts § 700, comment g. See: Kramer v. Leineweber, supra; Kajtazi v. Kajtazi, supra.

Does the complaint in the instant case aver a cause of action for interfering with the appellant’s custodial rights? An order granting a demurrer cannot be entered unless the complaint discloses on its face that the plaintiff’s claim cannot be sustained because the law will not permit recovery. If there is any doubt, the doubt must be resolved in favor of overruling the demurrer. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 623, 470 A.2d 86, 91 (1983), quoting Gekas v. Shapp, 469 Pa. 1, 5-6, 364 A.2d 691, 693 (1976); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 37 (1982).

Applying this standard to the averments of the complaint in the instant case, I am forced to conclude that preliminary objections in the nature of a demurrer were improperly sustained. Appellant, after being divorced from his wife, agreed that his infant son should be raised by appellant’s sister and brother-in-law in Avella, Pennsylvania because appellant was on foreign assignment for the United States Government. It has been alleged in the complaint that appellant faithfully sent money for the support of his son, purchased insurance for his son and established a trust fund for him. Appellant retired in 1972 and moved back to Avella. There he maintained a close relationship with his son, but his son continued to live with appellant’s sister and her husband. A dispute arose when appellant requested that his son return to the home of his father. It will serve no good purpose to recite here the many factual averments pertaining to this dispute. They have been alleged fully in the complaint. Suffice it to quote paragraph 53 of the complaint where it is alleged:

That the co-defendants have enticed and persuaded the plaintiffs son to stay away from his father, to have nothing to do with him and in particular to leave his father’s home and not to return although they know it is the wish and desire of the father to have his son with him.

These averments are sufficient to state a cause of action.

It may well be, in view of the history and relationship which has existed among the parties for such a long period of time, that appellant will be unable to prove a cause of action. His claim, based as it is on highly emotional family issues, will certainly be controversial. It may also be, as appellees assert, that appellant has too long delayed seeking redress in the courts. The difficulties with which appellant will undoubtedly be faced in proving his cause of action, however, do not permit a summary disposition which would deprive him of his day in court.

Therefore, I concur in the decision to reverse and remand for further proceedings. However, the cause of action stated, in my opinion, is for inducing a child not to return to the custody of his parent. I would not recreate a cause of action for alienation of affections by calling it an intentional infliction of emotional distress.

      . Appellees argue that appellant’s son was not a minor when suit was instituted, since he was 20 years of age at that time. Accordingly, they contend that even if a cause of action for alienation of a minor’s affections was cognizable in Pennsylvania, it would be inapplicable in the case at bar. Because we have determined that there is no cause of action for alienation of the affections of a child, whether a minor or of full age, we need not address this issue.

        . The cases cited by appellant in support of his claim are not controlling here, since they deal mainly with situations wherein a third party abducted a minor child or interfered with lawful custody under no color of right. See e.g. Pickle v. Page, 252 N.Y. 474, 169 N.E. 650 (1930).

      . Appellant herein did not object to the procedure utilized by appellees in raising the statute of limitations. There is some confusion in recent case law concerning whether the failure to object constitutes a waiver of the error, thereby permitting the appellate court to consider, on its merits, the issue improperly raised by preliminary objection. See, Conaway v. 20th Century Corp., 491 Pa. 189, 420 A.2d 405 (1980); Duquesne Slag Products v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); Sayne v. Wylie, 296 Pa.Super. 134, 442 A.2d 694 (1982). Nonetheless, in the instant case, we are confronted with a situation wherein the trial court's order regarding the limitation issue is unclear. Moreover, the record contains insufficient facts to allow a determination on that issue. Our court has reviewed the limitations claim raised by preliminary objection only in cases where the issue was briefed or argued by the parties and considered by the trial court. See Cooper v. Downington School District, 238 Pa.Super. 404, 357 A.2d 619 (1976); Bickell v. Stein, 291 Pa.Super. 145, 148 n. 2, 435 A.2d 610, 612 n. 2 (1981); Donnelly v. DeBourke, 280 Pa.Super. 486, 494 n. 5, 421 A.2d 826, 830 n. 5 (1980), overruled on other grounds in Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981).