author: ROBERTS, Judge:

text:
    498 A.2d 928
    DERRY TOWNSHIP SCHOOL DISTRICT v. DAY & ZIMMERMAN, INC. and Suburban Roofing Co., Inc. and Owens-Corning Fiberglas Corp. Appeal of DAY & ZIMMERMAN, INC.
    Superior Court of Pennsylvania.
    Argued April 30, 1985.
    Filed Sept. 13, 1985.

      Kevin J. Conners, Philadelphia, for appellant.
    Clyde W. McIntyre, Harrisburg, for Derry, appellee.
    Francis X. Clark, Norristown, for Suburban, appellee.
    Before TAMILIA, MONTGOMERY and ROBERTS, JJ.
   ROBERTS, Judge:

Derry Township School District (the District) filed a complaint against appellant Day & Zimmerman, claiming that appellant was responsible for damages resulting from preparation of defective specifications for planned roof repairs and breach of its contract to plan and supervise those roof repairs. Appellant filed a third-party complaint against appellee Suburban Roofing Co., Inc., the contractor hired to perform the repairs. On this appeal, appellant challenges the trial court’s order sustaining appellee’s preliminary objections and dismissing the third-party complaint for improper joinder of appellee under Pa.R.C.P. 2252(a). Because we believe the trial court misconstrued relevant authority in interpreting this rule, we reverse and remand with directions.

The District contracted with appellant, an engineering firm, to prepare specifications for and to supervise a reroofing project planned for one of the District’s school buildings. After the specifications were prepared, the District solicited bids for the actual roofing work. Appellee was low bidder, and consequently was awarded the roofing contract.

Several weeks after appellee began work, appellant determined that appellee was not performing the work in accordance with the specifications. On appellant’s recommendation, the District issued a stop work order. Appellee and the District ultimately agreed to submit the question of appellee’s compliance with the specifications to common law arbitration. One of appellant’s engineers testified at the arbitration hearings, but appellant played no further role in them.

The arbitrators found the work stoppage to have been capricious, ordered the District to pay appellee damages caused by the stoppage, and directed the District to allow the contract work to be completed. No attempt was made by appellee or the District to appeal the award.

The District then filed a complaint against appellant that contained both trespass and assumpsit counts. The trespass count was based on allegations that appellant was negligent in advising the District to issue the stop work order, in preparing inadequate plans and specifications, and in improperly supervising the roofing work. The assumpsit count alleged that appellant breached its contractual obligations to the District by improperly preparing the specifications.

Appellant promptly filed third-party complaints against appellee and Owens-Corning Fiberglas Corp., manufacturer of certain materials used in the roofing project. See Pa.R. C.P. 2252(b) (allowing joinder of nonparties as additional defendants by filing third-party complaint). The third-party complaint filed against appellee contained counts in trespass, assumpsit, and strict liability. Each count averred that appellee was alone liable to the District, or jointly and severally liable to the District, or liable over to appellant for contribution and/or indemnity, and was based on general allegations that any problems with the roof were attributable solely to appellee’s negligent workmanship and failure to conform its work to the specifications drawn by appellant. The only damages sought were contribution and/or indemnity should appellant be found liable to the District.

Appellee responded with preliminary objections, seeking to dismiss the third-party complaint or, in the alternative, to obtain a more specific pleading. The trial court concluded that joinder of appellee was improper in the circumstances of this case, sustained appellee’s preliminary objections, and dismissed the third-party complaint. Appellant takes the present appeal from that dismissal.

Appellant raises four arguments in support of its contention that joinder of appellee was proper: 1) appellant’s contract with the District gave appellant the right to recover for appellee’s breach of its contract with the District as a third-party beneficiary; 2) the arbitration award in favor of appellee does not collaterally estop appellant from alleging appellee’s negligence and breach of contract; 3) appellant may assert strict liability pursuant to section 402A of the Restatement Second of Torts as a basis for a claim of contribution or indemnity against appellee; and 4) the trial court erred in its interpretation of Pa.R.C.P. 2252(a). Though we find that appellant is entitled to relief based on issue 4, and ordinarily would not reach appellant’s other arguments, we will also address issue 2 briefly, because appellee’s position on that issue arguably constitutes a proper ground for affirmance. See, e.g., Concord Township Appeal, 439 Pa. 466, 469, 268 A.2d 765, 766 (1970) (appellate court may affirm court of original jurisdiction on any proper ground).

Appellee insists, as it has insisted since its joinder, that the arbitrators’ determination that the work stoppage was unwarranted collaterally estops appellant from bringing its third-party claim. Collateral estoppel may be asserted by a party to bar a claim based on an issue litigated in a previous action if 1) the issue underlying the claim is identical to the one previously litigated; 2) final judgment in the previous action was rendered on the merits of the issue; 3) the party against whom the estoppel is asserted was party to the previous action, or in privity with such a party; and 4) the party against whom the estoppel is asserted had a full and fair opportunity to litigate the issue in the previous action. Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975). Appellant and appellee vigorously dispute whether the last two factors are present in the case before us. We agree with appellant that they are not.

Appellee claims that the contractual relationship between appellant and the District suffices to establish privity for purposes of collateral estoppel. Appellee points to nothing in the record, however, that establishes that this contract gave appellant a “mutual or successive” relationship to rights of the District that were the subject of the arbitration, see Central Pennsylvania Lumber Co. v. Carter, 348 Pa. 429, 432, 35 A.2d 282, 283 (1944). Privity, therefore, remains unestablished.

As for the requirement of a full and fair opportunity to litigate the prior action, our courts have held that a party may be bound by a judgment in future proceedings if it possessed the right to control the original litigation and to take an appeal, Albert v. Lehigh Coal & Navigation Co., 431 Pa. 600, 613-14, 246 A.2d 840, 846 (1968), or if it is found to have actually exercised such control, Williams v. Lumbermen’s Insurance Co. of Philadelphia, 332 Pa. 1, 5-6, 1 A.2d 658, 660-61 (1938). Appellee can attribute no such right or exercise of control to appellant; by its own admission, appellant’s only role in the arbitration proceedings was to provide testimony in support of the District’s position. Consequently, we conclude that appellant’s third-party complaint, if otherwise proper, is not barred by collateral estoppel.

We now turn to appellant’s argument concerning the propriety of its third-party complaint under Pa.R.C.P. 2252(a). Appellant argues that the trial court construed the rule too narrowly, and that joinder is proper if the rule is construed in accordance with precedent. We agree.

Rule 2252(a) provides in pertinent part:

In any action the defendant ... may ... join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joining party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.

Pa.R.C.P. 2252(a) (emphasis added). Correctly defining what is meant by “the plaintiff’s cause of action” is essential to proper application of the rule.

The trial court stated that the District’s cause of action against appellant was for defective design, and that appellant’s cause of action against appellee was for contribution or indemnity, based on appellee’s improper performance of its contractual duties to the District. Since appellee had nothing to do with appellant’s contract to provide specifications, the court found appellant’s third-party complaint to be based on a cause of action entirely separate from that alleged by the plaintiff, and therefore found joinder to be precluded by Rule 2252(a). In other words, the trial court equated “the plaintiff’s cause of action” with its theory of recovery. In this respect, the court erred.

Case law has defined “the plaintiff’s cause of action” to mean “damages or injuries” for which the plaintiff seeks recovery. Staub v. Southwest Butler County School District, 263 Pa.Super. 413, 421, 398 A.2d 204, 207 (1979), aff'd, 489 Pa. 196, 413 A.2d 1082 (1980). Here, the District’s injury is alleged financial loss stemming from a defective roof. The District’s complaint attributes the roof’s defects to improper specifications while the appellant’s third-party complaint attributes the defects to noncompliance with the specifications and negligent workmanship by appellee. Thus, the third-party complaint is predicated on the same “series of occurrences” as those underlying the plaintiff’s claim for relief—the disputed set of circumstances whose result was to leave the District with a defective roof. See Extrudo Film Cory. v. Beck Electric Construction, Inc., 220 Pa.Super. 164, 165-67, 286 A.2d 687, 688-89 (1971) (en banc) (manufacturer of inoperative transformer properly joined by installer, even though plaintiff’s complaint as amended alleged only that the transformer failed due to installer’s improper installation).

Stokes v. Loyal Order of Moose Lodge No. 696, 502 Pa. 460, 466 A.2d 1341 (1983), does not compel a contrary result, as the trial court believed. In Stokes, the plaintiff sued the defendant for personal injuries she incurred when a chair on the defendant’s premises collapsed while she was sitting in it. The defendant filed a third-party complaint against the plaintiff’s general liability insurance carrier, seeking to be indemnified should it be found liable for the plaintiff’s injuries. Id., 502 Pa. at 462, 466 A.2d at 1342. The Supreme Court found joinder to be improper. In doing so, it expressly approved the reasoning of a Common Pleas case that distinguished between indemnity based on a general liability policy and indemnity based on an express indemnity contract. Id., 502 Pa. at 467, 466 A.2d at 1344. We believe that the disposition in Stokes rests upon an implicit finding that the “damages and injuries” suffered by the plaintiff were separate from the injury suffered by the defendant due to the failure of the plaintiff’s insurer to extend coverage, not upon the fact that the complaint and the third-party complaint in that case were based on different theories of recovery.

Appellee insists that Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967), supports dismissal of the third-party complaint. We disagree. First, Mallesky was decided under the previous version of Rule 2252(a), which did not permit joinder to be based on a cause of action held by the joining party that was based on the same transactions or occurrences as was that of the plaintiff. See id., 427 Pa. at 355, 235 A.2d at 155 (quoting previous version of Rule 2252(a)). Moreover, Mallesky would be distinguishable on its facts, even if it had been decided under the current version of the rule. In Mallesky, the plaintiffs sued defendant Stevens for damages that resulted when Stevens drove his car into their house. Stevens attempted to join Hritz, who allegedly drove his car into the. plaintiffs’ house shortly afterward, as a third-party defendant. The Supreme Court upheld dismissal of the third-party complaint because each of these accidents “constituted a separate and distinct incident.” Id. The Court also observed, “[e]ach of the separate defendants should be responsible for damages which resulted from his negligence, if any.” Id. (quoting Rodich v. Rodich, 421 Pa. 154, 156, 218 A.2d 816, 817 (1966)). Clearly, the plaintiffs’ and the defendant’s claims in Mallesky did not arise from the same “damages and injuries,” unlike the claims in the case before us.

Appellant also argues that appellee’s request in the alternative for a more specific pleading should not be granted because the original third-party complaint satisfies the specificity requirements of Pa.R.C.P. 2252(b). Because its disposition of the preliminary objections rendered this issue moot, the trial court declined to address this argument. Accordingly, we will do likewise, but we note that the parties may renew their arguments on this issue before the trial court on remand.

Order reversed, and case remanded with directions to reinstate appellant’s third-party complaint against appellee. Jurisdiction relinquished.

      . Owens-Corning Fiberglas Corp. filed no preliminary objections to the third-party complaint filed against it, and is not a participant in the present appeal.

      . It is, of course, of no consequence to our holding that the arbitrators’ award might bar the District from recovering from appellee for improper performance of its roofing contract under res judicata principles. Joinder of a third party based on a right of contribution is proper even if the plaintiff is barred from recovering from the third party. See Daly v. Buterbaugh, 416 Pa. 523, 536, 207 A.2d 412, 417-18 (1964); Shaull v. A.S. Beck New York Shoe Co., 369 Pa. 112, 115-16, 85 A.2d 698, 701 (1952).


source: Caselaw Access Project

author: WIEAND, Judge: SPAETH, President Judge,

license: Public Domain

text:
    498 A.2d 933
    COMMONWEALTH of Pennsylvania, Appellee, v. Robert McCABE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed Sept. 18, 1985.

      Cyrus P. Dolbin, Pottsville, for appellant.
    Kate Dreher, Assistant District Attorney, Pottsville, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

Robert McCabe was tried before a jury on charges of robbery, theft by receiving stolen property, criminal conspiracy, and hindering prosecution. The jury acquitted him of theft and conspiracy, was unable to agree upon a verdict on the robbery charge, and found him guilty of hindering prosecution. The trial court subsequently found the evidence insufficient on the robbery charge and granted a post-trial motion for acquittal. The court refused post-verdict relief on the conviction for hindering prosecution and imposed a sentence of probation. On direct appeal, McCabe asks this Court to decide the following issues:

1. May a defendant be convicted of a crime where there is no independent proof of the commission of that crime, but only the Defendant’s statement that he committed such a crime?
2. Even where there is no independent proof of the commission of a crime, may a defendant waive the protection of the corpus delicti rule, and be convicted upon his own testimony alone?

The information charged appellant with concealing or destroying relevant evidence in the nature of a note found at the scene of a robbery. The police learned of the existence of the note from appellant, who told them he had destroyed it. At trial, the Commonwealth was unable to produce independent evidence that the note existed. Because the Commonwealth was unable to prove the corpus delicti of this offense, the trial court sustained an objection to a testimonial reference to appellant’s oral statement by Trooper Bordenaro, a witness for the prosecution. On cross-examination, the witness was asked whether appellant had made a statement in which he denied involvement in the crime, and the witness agreed that he had. On redirect-examination, the witness was asked precisely what appellant had said. He was permitted to testify, over objection, that appellant’s statement had included “that he found a note at the robbery scene addressed to Diego Robinson, that he put the note into his pocket and that he later destroyed it. The question and answer [were] permitted because defense counsel had ‘opened the door’ to the entire conversation between defendant and the officer by inquiring as to that part of the conversation which favored the defendant.”

The law is clear that “where one party offers part of a conversation, the other is entitled to bring out the balance____” Commonwealth v. Nelson, 294 Pa. 544, 546, 144 A. 542, 543 (1929). “If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area.” Commonwealth v. Gonce, 320 Pa.Super. 19, 37, 466 A.2d 1039, 1049 (1983), quoting Commonwealth v. McCloughan, 279 Pa.Super. 599, 604, 421 A.2d 361, 363 (1980); Commonwealth v. Stakley, 243 Pa.Super. 426, 430, 365 A.2d 1298, 1300 (1976). In the instant case, moreover, the receipt of appellant’s statement was harmless. Appellant took the stand in his own defense and testified to the same facts which he had related to Trooper Bordenaro on the night of the robbery. Appellant testified “that at the scene of the robbery he had picked up a piece of paper, put it into his pocket, that he had read the note which was addressed to Diego and had later told the State Police that he had gotten rid of the note—had thrown it in the garbage.” The decided cases are uniform in holding that error in receiving an extrajudicial statement of the defendant is rendered harmless if the defendant thereafter takes the stand in his own defense and reiterates or corroborates his statement. Commonwealth v. Saunders, 459 Pa. 677, 681, 331 A.2d 193, 194 (1975). Accord: Commonwealth v. Hart, 471 Pa. 271, 274, 370 A.2d 298, 300 (1977); Commonwealth v. Cummings, 466 Pa. 332, 335, 353 A.2d 381, 382 (1976); Commonwealth v. Rice, 271 Pa.Super. 425, 429-430, 413 A.2d 739, 741 (1979).

As a general rule, a naked extrajudicial confession of guilt by one accused of crime, uncorroborated by independent evidence establishing the corpus delicti, is not sufficient to warrant or support a conviction. 30 Am.Jur.2d Evidence § 1136. Pennsylvania decisions are in accord. Commonwealth v. Ware, 459 Pa. 334, 365-366, 329 A.2d 258, 274 (1974); Commonwealth v. May, 451 Pa. 31, 32, 301 A.2d 368, 369 (1973); Commonwealth v. Lettrich, 346 Pa. 497, 498, 31 A.2d 155, 156 (1943). “The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed____” Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940).

The rule that an extrajudicial confession does not warrant a conviction unless corroborated by independent evidence of a corpus delicti has no application to judicial admissions. 30 Am.Jur.2d Evidence § 1139. See also: State v. Schomaker, 303 N.W.2d 129 (Iowa 1981); Com monwealth v. Granese, 37 Montg. 15 (Pa.1920). Judicial admissions are deliberately made under oath during formal proceedings and are generally free from the inherent infirmity of verbal confessions made out of court. 30 Am. Jur.2d Evidence § 1139.

Appellant’s in-court testimony was neither hasty nor unguarded. It was made after consulting with counsel, was made under oath during trial, and was exculpatory with respect to the more serious charges which had been brought against him. His testimony, which admitted the destruction of evidence, was sufficient, if believed, to warrant a finding that he had concealed and destroyed evidence.

The judgment of sentence is affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

I do not believe that the Commonwealth has carried its burden of establishing the corpus delicti by evidence independent of appellant’s confession or admission. Accordingly, I should reverse the judgment of sentence.

The general rule that governs this case is well settled:. The corpus delicti may not be established by a confession or admission standing alone. It follows that a confession or admission alone cannot support a conviction. Putting it conversely, a confession or admission must be corroborated by independent evidence of the corpus delicti. The burden is on the prosecution to prove the corpus delicti. This may be accomplished by either direct or circumstantial evidence.
Wharton, 1 Criminal Law, § 28 at 144-50 (C.E. Torcía 14th ed. 1978) (footnotes omitted).

See also Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980) (“... a criminal conviction may not stand merely on the out of court confession of one accused, and thus a case may not go to the fact finder where independent evidence does not suggest that a crime has occurred.”); Commonwealth v. Moyer, 277 Pa.Super. 172, 175, 419 A.2d 717, 718 (1980) (collecting cases) (“Before the Commonwealth may introduce a defendant’s confession, it must first establish by independent evidence that a crime in fact occurred.”) (citations omitted); Commonwealth v. Shoff, 273 Pa.Super. 377, 379, 417 A.2d 698, 699 (1980). (“Before the Commonwealth can use a confession, it must first establish the corpus delicti of the crime confessed. The rule is intended to prevent a defendant from being convicted of a crime solely on the basis of his own statements, ... ”) (citations omitted).

Appellant was convicted of the crime of hindering prosecution. See 18 Pa.C.S. § 5105. The charge was based, according to the information, on appellant’s act of “concealing] or destroying] evidence of a crime, namely: a note addressed to [a co-conspirator.]” R. at 2, ¶ 6. While there is no transcript of appellant’s trial, the parties stipulated that the evidence upon which appellant was convicted consisted solely of Trooper Bordenaro’s testimony, on redirect, that appellant told him that he had found and destroyed the note, and appellant’s testimony, on cross-examination, that recounted “essentially ... the same facts.” R. at 13, incorporating Slip op. of tr. ct. at II, III; Slip op. of tr. ct. at 5. The record thus contains no independent evidence that the note existed, or that appellant concealed and destroyed it with the intent of hindering the prosecution of a crime. See Commonwealth v. May, 451 Pa. 31, 32, 301 A.2d 368, 369 (1973); Commonwealth v. Herman, 288 Pa.Super. 219, 230-31, 431 A.2d 1016, 1022 (1981) (proof of corpus delicti consists of independent evidence that a loss has occurred and that its cause was more likely to have been criminality than accident). I believe, therefore, that this case falls squarely within the rule cited above.

§ 5105. Hindering apprehension or prosecution
(a) Offense defined.—A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
******
(3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;

The majority reasons that Trooper Bordenaro’s testimony on redirect was admissible because on cross-examination appellant’s counsel had “opened the door” to admission of appellant’s entire statement to the officer. At —. The issue before us, however, is not resolved by a decision on the admissibility of the trooper’s testimony. In Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974), the Supreme Court held that the corpus delicti rule is not addressed to the conditions under which a confession is admissible, although many cases frame the rule in such terms, but rather is “a formulation of the required proof to take the case to the trier of fact or to sustain a finding of guilt.” Id., 459 Pa. at 366 n. 41, 329 A.2d at 274 n. 41 quoting McCormick Handbook of the Law of Evidence, § 158 at 347 (E. Cleary 2d ed. 1974). Thus, “reversible error is not committed when a confession is accepted before such corroborating evidence is produced if, before the evidence closes, independent proof of the corpus delicti is placed in the record.” McCormick, Handbook on the Law of Evidence, § 145 at 366 (E. Cleary 3rd ed. 1984). See also Commonwealth v. Brusky, 219 Pa.Super. 54, 57, 280 A.2d 826, 828 (1971); Commonwealth v. Ferguson, 162 Pa.Super. 199, 202, 56 A.2d 360 (1948). The fact that Trooper Bordenaro’s testimony may have been properly admitted, therefore, does not dispense with the requirement, not complied with here, that the Commonwealth introduce some independent evidence corroborating appellant’s admission.

The only other evidence that the crime in fact occurred was appellant’s reiteration of his statement to Trooper Bordenaro in response to questions put to him on cross-examination. The issue before us, therefore, is whether the Commonwealth may satisfy the corpus delicti rule through testimony it elicits from a defendant who decides to testify. This issue has not been considered by a Pennsylvania appellate court, and it is not easily resolved, for it falls squarely between two well-established principles, each of which would, if followed, compel a different result. On the one hand, it is clear, as the majority recognizes, that a defendant may not be convicted on the basis of his confession alone; there must be independent evidence establishing the corpus delicti. See, e.g., Commonwealth v. Ware, supra, 459 Pa. at 365-66, 329 A.2d at 274. On the other hand, it is equally clear that he may be convicted if he voluntarily and knowingly pleads guilty. See, e.g., Commonwealth v. Little, 455 Pa. 163, 165-66 n. 1, 314 A.2d 270, 271 n. 1; Commonwealth v. Lewis, 295 Pa.Super. 61, 65, 440 A.2d 1223, 1225 (1982).

The majority, instead of referring to a defendant’s guilty plea, uses the term “judicial admission”. The majority then reasons that a defendant’s inculpatory response to cross-examination is sufficiently similar to a guilty plea to enable us to sustain his conviction on the basis of his uncorroborated statement alone. I find this reasoning unpersuasive.

In the first place, the majority fails to note that before the court may accept a guilty plea it must satisfy itself that the crime in fact occurred. It does this by ascertaining whether a factual basis for the plea exists. See Pa.R. Crim.P. 319(a); Commonwealth v. Hines, 496 Pa. 555, 560, 437 A.2d 1180, 1182 (1981) (collecting cases); Common wealth v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973). The court has considerable leeway in satisfying this requirement. For example, the Commonwealth may make an offer of proof, see, e.g., Commonwealth v. Manning, 263 Pa.Super. 430, 398 A.2d 212 (1979), or defense counsel may stipulate to the facts, see, e.g., Commonwealth v. Maddox, supra 450 Pa. at 411, 300 A.2d at 506. After the court determines that there is a factual basis for the plea, and before it accepts the plea, it must present the facts to the defendant and he must acknowledge that they are true. Failure either to ascertain the factual basis for the plea, see Commonwealth v. Hines, supra, Commonwealth v. Reno, 303 Pa.Super. 166, 449 A.2d 630 (1982); Commonwealth v. Stolle, 254 Pa.Super. 483, 386 A.2d 53 (1978), or to obtain an accused’s acknowledgment, see Commonwealth v. Manning, supra, may invalidate the plea. The purpose of the factual basis requirement is that “[i]t assures that a defendant who seeks to plead guilty is in fact guilty____[u]nless a factual basis is required, the risk of innocent persons being adjudicated guilty is enhanced.” ABA Standards for Criminal Justice, § 14-1.6(a), comment. Thus, the requirement serves the same purpose served by the corpus delicti rule. See Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940) (Policy underlying corpus delicti rule is “the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of conviction where no crime has in fact been committed;

In addition, the majority’s reasoning is unsupported by, or contrary to, such facts as are disclosed by the record. As I have said, no trial transcript has been provided to us. The opinion of the trial court, to which counsel have stipulated, see R. at 13, tells us neither the context in which appellant made his statements, the question or questions to which he responded, or what he said. So far as the record discloses the facts, however, it shows that the majority’s analogy, or equation, of appellant’s testimony with a guilty plea is faulty.

“[A] guilty plea is not only an admission of conduct but also is an admission of all the elements of a formal criminal charge, and constitutes the waiver of constitutionally-guaranteed rights[.]” Commonwealth v. Hines, supra 496 Pa. at 559, 437 A.2d at 1183. It is because the decision to plead guilty is so momentous, with such grave consequences, that the court must engage in the colloquy with the defendant. It is through the colloquy that the court guards against the possibility that it will accept a plea from an innocent defendant, or a plea that is hasty, unknowing, or involuntary. See Pa.R.Crim.P. 319(a) and comment. Also, it is through the colloquy that the court impresses the defendant with the “grave and solemn [nature of his] act,” see Commonwealth v. Sanutti, 454 Pa. 344, 349, 312 A.2d 42, 44 (1973) citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and provides a “dignified procedure designed to impress the defendant with its fairness and concern for his rights.” Hoffman, “Rule 11 and the Plea of Guilty,” 45 F.R.D. 149 (1967) quoted in Commonwealth v. Maddox, supra 450 Pa. at 409, 300 A.2d at 504-05. And even after the colloquy, we do not insist that the decision to plead guilty was irrevocable, for we provide that prior to sentencing, the court should “liberally allow[]” the defendant to withdraw his plea. See Commonwealth v. Forbes, 450 Pa. 185, 190, 299 A.2d 268, 271 (1973).

Appellant here enjoyed no such protection. It is true, as the majority notes, that appellant made his inculpatory statement while he was under oath and while he enjoyed the assistance of counsel. Nevertheless, he made the statement, not as a deliberate and considered decision to plead guilty, but rather in response to a question put to him on cross-examination. A principal purpose of cross-examination is to test the credibility of a witness by “exploring [the] details and implications [of the witness’s testimony], in the hope of disclosing inconsistencies or impossibilities; and, ... to prove out of the mouth of the witness, impeaching facts known to the cross-examiner such as prior contradictory statements, bias and conviction of crime.” McCormick, Handbook on Evidence, supra at 66. Practitioners are advised on techniques that will best serve this purpose. For example, to question a witness suspected of falsifying, one is advised to “jump quickly with rapid-fire questions from one point of the narrative to the other, without time or opportunity for a connected narrative: backward, forward, forward, backward from the middle to the beginning, etc.” Ramage, “A New Rules for the Cross-Examination of Witnesses,” 91 CentLJ. 354 (1920), cited in id. at 67. As McCormick notes, while cross-examination is a “useful device,” it “has its own hazards of producing errors[,]” for “[i]t is, in truth, quite doubtful whether it is not the honest, but weak or timid witness, rather than the rogue, who most often goes down under the fire of a cross-examination.” Id. at 68-69.

I conclude, therefore, that appellant's testimony on cross-examination was not analogous to a guilty plea but to a confession. Since apart from the confession there was no evidence of the crime, appellant should not have been convicted.

The judgment of sentence should be reversed and appellant discharged.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 903.

      . 18 Pa.C.S. § 5105.

      . Presumably, this reference by defense counsel was to the crime of robbery.

      . These facts are taken from a stipulation entered by counsel for both parties in lieu of a transcribed copy of the notes of testimony.

      . Section 5105 of the Crimes Code, 18 Pa.C.S. § 5105 provides in part:

      . The authority cited by the majority in support of the proposition that a “judicial admission” may, without more, serve to satisfy the corpus delicti requirement makes clear that the term refers to a guilty plea. 30 AmJur. 2d Evidence § 1139 states:
      § 1139.—Judicial confessions.
      The rule that a confession does not warrant a conviction unless corroborated is generally held applicable to extrajudicial confessions only, and not, in the absence of statutes to the contrary, to judicial confessions. Some jurisdictions have recognized this rule by legislative enactment. The reason for this distinction is said to be that judicial confessions are deliberately made and, being reduced to writing, subscribed by the prisoner, and certified by a magistrate, or consisting of a solemn plea made at the bar of the court and entered of record, are precisely identified and free from the inherent infirmity of all mere verbal confessions made out of court, resting in the memory of witnesses, and depending for their value upon the fidelity and accuracy of their repetition.
      (footnotes omitted).

      . The only appellate authority cited by the majority in support of its view is State v. Schomaker, 303 N.W.2d 129 (Iowa 1981). In that case the defendant was first tried for robbery. His defense was alibi. On direct examination he testified that at the time of the robbery he was in another town, selling drugs. After he was acquitted of the robbery, he was charged with delivering a controlled substance. He was convicted on this charge, the only evidence, apparently, being his testimony at the robbery trial. On appeal, the issue before the Iowa Supreme Court was the construction of Iowa R.Crim.P. 20(4), which provides:
      Confession of defendant. The confession of the defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the defendant committed the offense. Cited in State v. Shomaker, supra at 130.
      The court noted that the case turned on what the legislature intended by using the term "open court.” It concluded that the legislature had intended the term to be read broadly to "encompass! ] any court where a defendant is protected against compulsion, coercion, or other improper persuasion”, and that in the case before it, the defendant’s confession was made in such a court, for his statement was a deliberate, counselled decision to establish his alibi defense and "was made under questioning by his own lawyer.” Id. at 132. Here, however, we have no such statute; the facts of the case, as far as we can know them, do not suggest a deliberate and counselled strategy decision by appellant to make a confession; and the questions were not put to appellant by his own counsel.

      . Majority at 500. The opinion states that appellant’s statement was made "after consulting with counsel." I take this to mean that appellant's decision to take the stand in his own defense was made after consultation with counsel. There is no indication in the record that appellant’s response to the Commonwealth’s questions was made after consulting with counsel, or that counsel knew or could have known the questions the Commonwealth intended to ask.


author: MONTEMURO, Judge:

text:
    498 A.2d 939
    Albert A. MATULEVICH, Jr., Appellant, v. Joseph E. MATULEVICH, Sr. Albert A. MATULEVICH, Jr., Appellant, v. Stephen PERCHAK and Joseph E. Matulevich, Sr.
    Superior Court of Pennsylvania.
    Argued May 21, 1985.
    Filed Sept. 18, 1985.

      Duncan J. MaeCallum, Philadelphia, for appellant.
    Anthony B. Panaway, Wilkes-Barre, for Matulevich, appellee.
    William F. Anzolone, Wilkes-Barre, for Perchak, appellee.
    Before McEWEN, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the trial court’s denial of appellant’s motion for a new trial. Appellant, the plaintiff below, filed an action in trespass against appellees, Joseph E. Matulevich, Sr. and Stephen Perchak, for injuries he suffered in a hunting accident. The case was tried before a jury which found no negligence on the part of either appellee and also found no comparative negligence on the part of appellant. Post-trial motions were filed and denied. Judgment was entered on the verdict, and this appeal followed.

As succinctly stated by the trial court, the pertinent facts are as follows:

The incident which gave rise to the instant law suit occurred on November 28, 1977. On that date, at approximately 4:00 P.M., a party of twenty-five hunters assembled in a wooded area of lower Luzerne County to conduct what is known as a drive, the purpose of which was to flush out white tailed antlered deer. The drive’s direction was from east to west and the individual drivers were aligned from south to north. Immediately preceding the occurrence in question, the specific drivers and their relative positions were as follows: Joseph E. Matulevich, Sr., was the southernmost driver. To his immediate north and right was Steve Perchak, followed by Albert A. Matulevich, Jr., Robert J. Matulevich and Billy Sterling. It is undisputed that at approximately 4:30 P.M., a deer appeared to the north and in front of the line of drivers. This animal ran in a southerly direction and crossed through the line at a point between Mr. Perchak and Albert Matulevich. Shortly afterwards, a bullet from Joseph Matulevich’s rifle struck Albert Matulevich in the upper left chest.

Lower Court Opinion, at 2.

Appellant’s first assignment of error, that the jury’s verdict was against the weight of the evidence, has not been preserved for our review. The lower court properly refused to address this issue because it had been presented in appellant’s post-verdict motion in boilerplate form. Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981). Appellant now attempts to circumvent this obstacle by providing us with numerous arguments which are intended to support this claim. We, however, may not consider them, as it is now the established policy of this court not to entertain claims which parties have failed to specify in their post-verdict motions. Cherry v. Willer, 317 Pa.Super. 58, 463 A.2d 1082 (1983).

Likewise, appellant’s argument that the lower court erred in its jury instructions regarding appellees’ possible liability should the jury find that the bullet which struck appellant had ricocheted before hitting him, is also waived. The trial court gave its instruction on this and other points, and then asked counsel if they had any objections. Appellant’s counsel answered in the affirmative, objecting to, inter alia, the charge on the ricochet possibility. The court re-instructed the jury and appellant’s counsel indicated he was satisfied. After the jury had retired to begin deliberations, appellant’s counsel requested they be brought back for further instructions. We agree with the trial court that appellant failed to timely and specifically object to the jury charge. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427 (1984).

Appellant next claims the trial court erred by not instructing the jury on his requested charge based on Restatement of Torts (Second) § 519, which deals with abnormally dangerous activities. Our research, as well as that of the lower court, has failed to unearth any authority which applies § 519 to circumstances similar to those in the instant case. See generally, Restatement of Torts (Second) § 520 (factors determining abnormally dangerous activities). We agree with the lower court that the handling of firearms, in this case high powered rifles, is an activity requiring extraordinary care, the want of which imposes liability based upon negligence. It is not an activity which imposes liability irrespective of negligence. Id. § 519, Comment, (d); see also, Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957) (standard of care in handling firearms). The trial court therefore properly rejected appellant’s requested charge.

Appellant also would have us find error in the trial court’s jury instructions regarding the relevant standard of care required of an individual who handles a loaded firearm. The lower court instructed the jury that the standard was one of extraordinary care, relying on Kuhns v. Brugger, supra, and Everette v. City of New Kensington, 262 Pa.Super. 28, 396 A.2d 467 (1978). Essentially, it is appellant’s contention that the law of this Commonwealth would hold the possessor of a firearm strictly liable for any injury caused by the discharge of his gun, unless that discharge was unavoidable.

It is true, of course, that Kuhns contains the statement upon which appellant bases his contention, namely: “A person handling or carrying a loaded firearm in the immediate vicinity of others is liable for its discharge, even though the discharge is accidental and unintentional, provided it is not unavoidable.” Kuhns v. Brugger, supra, 390 Pa. at 338, 135 A.2d at 400. However, it is also true that Kuhns instructs that “any person having [a firearm] in his possession or using it is bound to exercise extraordinary care.” Id. (emphasis added). Moreover, the language relied upon by appellant is followed by the clear directive that whenever an individual deliberately points a loaded gun at another and discharges it, “a prima facie case of negligence is established.” Id., 390 Pa. at 338-39, 135 A.2d at 400-01 (emphasis added). Finally, Kuhns also approvingly cites a hunting case in which our supreme court had earlier held that the task for the jury was to determine whether the defendant had exercised due care under the circumstances. Id., citing, Winans v. Randolph, 169 Pa. 606, 32 A. 622 (1895).

We think the proper reading of Kuhns refutes appellant’s contention. Our supreme court did not establish a form of strict liability in firearms cases, but rather sought to explain that, when someone possesses a loaded firearm, the reasonable care required of him or her under the circumstances is extraordinary care. Everette v. City of New Kensington, supra; see generally, Annot., 26 A.L.R.3d 561. Our review of the entire charge given by the trial court convinces us that the court properly applied the law regarding the handling of firearms as posited in Kuhns and Everette. We, therefore, reject appellant’s claim.

Appellant’s remaining claim of error is that the lower court improperly excluded certain expert testimony. Our review of the record and the pertinent case law satisfies us that the trial court did not abuse its discretion in excluding the expert’s testimony. We believe that once the configuration of the hunting drive, which all parties agree was an acceptable method of hunting, was explained to the jury, they were perfectly able to evaluate the reasonableness of the parties’ conduct without the aid of an expert. Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981). We therefore find no merit to appellant’s claim.

Order affirmed.

      . In Cherry v. Witter, 317 Pa.Super. 58, 463 A.2d 1082 (1983), this court put the bar on notice of our waiver policy. We addressed the substantive claims in Cherry, however, because in that case post-verdict motions had been submitted before Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981), was filed. Carnicelli was filed on July 12, 1981; the post-verdict motions in the instant case were filed in December of 1981.

      . That section of the Restatement provides:
      General Principle
      (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
      (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

      . All references in this opinion to Everette v. City of New Kensington, 262 Pa.Super. 28, 396 A.2d 467 (1978), are to the Opinion In Support of Affirmance, written by then Judge, now President Judge, Spaeth. Because the Opinion In Support of Reversal, written by the late Judge Price, addresses the standard of care required of a police officer, rather than a civilian, we believe the negligence standard set forth by Judge Spaeth supplies the standard applicable in this case.

      . The trial court stated that appellant had never offered the witness, Pennsylvania Game Conservation Officer Robert W. Nolf, as an expert in his offer of proof. While appellant never specifically stated in his offer that Nolf was an expert, we note that a general explanation was made as to Nolf s proposed testimony. Appellant also listed Nolf as an expert in his answers to appellees’ interrogatories. We shall, therefore, proceed as the trial court did in its opinion, to consider Nolf as having been properly offered as an expert.

      . We do not perceive any conflict between our holding here and the plurality opinion of our supreme court in Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981). In Rutter, the court decided that the trial court erred in excluding the expert testimony of a former football coach who would have testified as to the proper safety standards required of allegedly negligent high school football coaches conducting summer football practice. Appellant, in the instant case, attempted to use the expert’s testimony to establish the standard of care required of hunters aligned in a line of ‘‘drivers.’’ However, in Rutter, without the testimony of the coach, the jury would be unaware of how one safely conducts summer football practices. In the instant case, the way in which hunters go about a “drive” was adequately presented by Nolf in his recreation of the incident and the events leading up to it, which he based on his investigation of the accident. Having set the stage, Nolf was then asked what the standard of care was. (N.T., December 7, 1981, at 21-71). The trial court then sustained appellees’ objection, and refused to allow Nolf to testify as to this point. We believe this was proper for, as we stated above, the standard of care in hunting and firearms cases is reasonable care under the circumstances, a standard to be determined solely by the jury. Winans v. Randolph, 169 Pa. 606, 32 A. 622 (1895); Everette v. City of New Kensington, supra.


author: TAMILIA, Judge: BROSKY, Judge,

text:
    498 A.2d 942
    REGAL VENDING, LTD., Appellant, v. COMMISSIONER OF POLICE. COMMONWEALTH of Pennsylvania v. TWO ELECTRONIC POKER GAME MACHINES. Appeal of REGAL VENDING CORPORATION.
    Superior Court of Pennsylvania.
    Submitted June 4, 1985.
    Filed Sept. 18, 1985.

      Robert M. Lipshutz, Philadelphia, for appellant (at 1252 and 1254).
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for appellee (at 1252) and for Commonwealth, appellee (at 1254).
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   TAMILIA, Judge:

These consolidated appeals are from the lower court Orders granting the forfeiture to the Commonwealth of gambling devices and denying the return of them to appellants.

The facts of these cases are identical. On May 10, 1983, Philadelphia police seized coin-operated electronic video poker machines from Jarrett’s Lounge. The Commonwealth moved to have the machines forfeited under 18 Pa.C.S.A. § 5513(b). Appellants filed answers to the Commonwealth’s petition in the form of a Petition for Return of Property. On February 1, 1984, the lower court found these machines to be gambling devices per se as the machines had both a “knockdown” switch and “meter” to record the number of games knocked down, following the Supreme Court’s decision and rationale in Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983). Stays were granted, and reconsideration was denied following an evidentiary hearing. These appeals followed.

Appellants concede the propriety of the lower court’s determination that these machines are gambling devices per se Appellants, however, argue that the application of the Supreme Court decision in Two Electronic Poker Game Machines, filed after the seizure of the machines in the present case, violates their due process rights to the sense of fair warning that their conduct constitutes a crime, since the machines prior to the decision in Two Electronic Poker Game Machines were not found to be gambling devices per se by this court in Commonwealth v. One Electro-Sport Draw Poker Machine, 297 Pa.Super. 54, 443 A.2d 295 (1981), reversed on appeal by the Supreme Court in Two Electronic Poker Game Machines. We disagree that there has been a retroactive application of the law violative of appellants’ due process rights and accordingly affirm.

[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids---- If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.

Bouie v. Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894, 899 (1964).

The constitutional proscription against making an act, which was innocent when done, a criminal act by an unexpected and unforeseeable judicial enlargement of a statute, operates to guarantee the accused fair warning that his conduct will give rise to criminal penalties. Bouie v. Columbia, supra; see also, Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972); Wilson v. Codorus Township, 67 Commwth.Ct. 380, 448 A.2d 104 (1982). See generally, Commonwealth v. Hoetzel, 284 Pa.Super. 623, 426 A.2d 669 (1981).

Here, however, machines that contain the elements of chance, consideration, and reward have long been held to be gambling devices. See Commonwealth v. 9 Mills Mechanical Slot Machines, 62 Cmmwth.Ct. 397, 437 A.2d 67 (1981); In Re Gambling Devices Seized at American Legion Post No. 109, 197 Pa.Super. 10, 176 A.2d 115 (1961). The section of the Crimes Code that provides for forfeiture of such gambling devices, 18 Pa.C.S.A. § 5513(b), was in effect long before the seizure of these machines.

The fact that the machines in the present case were seized after this court decided Commonwealth v. One Electronic Poker Game Machine, 302 Pa.Super. 350, 448 A.2d 1077 (1982) and Commonwealth v. One Electro-Sport Draw Poker Machine, 297 Pa.Super. 54, 443 A.2d 295 (1981) and before these decisions were overruled on appeal by the Supreme Court, does not support appellants’ argument that they were deprived of fair warning that their conduct was proscribed.

The Supreme Court’s decision in Two Electronic Poker Game Machines did not unforeseeably enlarge the statutory proscription against possession of gambling devices embodied in the existing law of this Commonwealth, and it was this court’s decisions which were inconsistent with established law. The Supreme Court in Two Electronic Poker Game Machines accepted the principles established by the Commonwealth Court in 9 Mills Machines and affirmed the reasoning therein, which was consistent with established Pennsylvania authority. See Laris Enterprise, Inc. Appeal, 30 D & C 2d 179, aff’d 201 Pa.Super. 28, 192 A.2d 240 (1963); American Legion No. 109, supra; In Re Gaming Devices Seized at American Legion Post 51 Appeal, 188 Pa.Super. 480, 149 A.2d 483, aff’d per curiam, 397 Pa. 430, 156 A.2d 107 (1959), appeal dismissed 363 U.S. 720, 80 S.Ct. 1596, 4 L.Ed.2d 1521 (1960); Urban’s Appeal 148 Pa.Super. 101, 24 A.2d 756 (1942); see also United States v. Bally Barrel O’Fun Coin Operated Gaming Device, 224 F.Supp. 794 (MD Pa.1963), aff’d, 337 F.2d 857 (3rd Cir.1964).

Hence, appellants’ contention that the machines in the present case were not illegal at the time that they were seized is unsupported by prevailing law. The Supreme Court’s decision in Two Electronic Poker Game Machines was not an unforeseen judicial enlargement of the applicable law, as the machines in the present case, which contain the elements of chance, consideration and reward, were gambling devices per se before the Court’s pronouncement.

The order of the court below which denied the petition for the return of contraband property is affirmed. (No. 1252 Philadelphia, 1984). The order of the court below which granted the forfeiture of the gambling devices is affirmed. (No. 1254 Philadelphia, 1984). That part of the orders which left open a consideration of the return of the machines to the operators upon removal of the “knockdown switches” and “meters” is rendered null by this Opinion, as there is no provision in the law to rehabilitate a gambling device and permit reclamation by the owner.

Jurisdiction relinquished.

BROSKY, J., concurring.

BROSKY, Judge,

concurring:

I agree with the majority that the Supreme Court’s decision in Two Electronic Poker Game Machines did not unforeseeably enlarge the statutory proscription against possession of gambling devices. However, even if it had been an unforeseeable enlargement, I do not believe that the present forfeiture of these machines based on Two Electronic Poker Game Machines would constitute a retroactive application of that case. I reach this conclusion because of the Supreme Court’s decision that this type of machine constitutes a gambling device per se (an object the possession of which, without more, constitutes a crime). It would be the height of absurdity to return the machines in question to appellant when, since they are gambling devices per se, they would be subject to seizure and forfeiture immediately upon their return to appellant’s possession. Thus, the present forfeiture of the machines does not require a retroactive application of Two Electronic Poker Game Machines, but simply reflects the fact that machines, the possession of which is illegal, cannot be given to appellant.

For these reasons, I agree with the majority that the judgment of the court below should be affirmed.

      . Section 5513(a)(1) provides in relevant part: A person is guilty of a misdemeanor of the first degree if he:
      (1) intentionally or knowingly ... maintains, ... any device to be used for gambling purposes, except playing cards;
      Section 5513(b) provides:

        Any gambling device possessed or used in violation of the provisions of subsection (a) of this section shall be seized and forfeited to the Commonwealth. All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of intoxicating liquor shall apply to seizures and forfeitures under the provisions of this section.

        See 47 P.S. § 6-601 et seq. for provisions governing seizure and forfeiture.

      . Appellants in their briefs concede that the machines in the present case are legally indistinguishable from those in One Electro-Sport Draw Poker Machine, 297 Pa.Super. 54, 443 A.2d 295 (1981), reversed, 502 Pa. 186, 465 A.2d 973 (1983).

      . We note that our court's decisions in Commonwealth v. One Electronic Poker Game Machine, supra, and Commonwealth v. One Electro-Sport Draw Poker Machine, supra, were on appeal at the time of the seizure. Supreme Court had granted allocatur. Appellants were on notice that these decisions were subject to reversal.

      . Appellant’s argument to the contrary, the forfeiture provisions of 18 Pa.C.S. § 5513(b) governing gambling devices are applicable to mere possession. Commonwealth v. Bretz, 289 Pa.Super. 259, 433 A.2d 55 (1981).


author: HESTER, Judge:

text:
    498 A.2d 945
    COMMONWEALTH of Pennsylvania v. Lawrence MEYERS, Appellant. COMMONWEALTH of Pennsylvania v. Rose MEYERS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1985.
    Filed Sept. 18, 1985.

      Todd J. O’Malley, Scranton, for appellants.
    Paul Walker, Assistant District Attorney, Scranton, for Com., appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the order of the Court of Common Pleas of Lackawanna County denying appellants’ motions to dismiss charges of several violations of the Controlled Substance, Drug, Device and Cosmetic Act. 35 Pa.S.A. § 780-101 et seq. We must decide whether the order by the lower court is a violation of appellants’ rights under 18 Pa.C.S.A. § 110 of the Crimes Code and the double jeopardy clauses of our state and federal constitutions. Finding no error, we affirm.

Appellants and many others were the target of a drug investigation by the Attorney General for the Commonwealth, the Lackawanna County District Attorney and the police department of the City of Scranton. Between December 1, 1982, and December 21, 1982, approximately 3000 conversations were intercepted and recorded from the telephone lines of several individuals believed to be involved in a drug distribution ring in the Scranton area. A majority of the conversations were drug related and provided an overview of a drug distribution scheme in which appellants played a major role. Accordingly, search warrants were executed for the residences of a number of individuals implicated by the surveillance.

While searching one of these dwellings, police observed a vehicle operated by appellant Rose Meyers and occupied by appellant Lawrence Meyers depart from the scene. Believing that the vehicle contained quantities of illicit narcotics, police pursued appellants at high speed throughout the City of Scranton. Rose Meyers’ attempt to avoid apprehension by ramming two police cars failed.

Appellants were arrested on December 21, 1982, and charged with aggravated assault, resisting arrest, recklessly endangering other persons and other violations of the Vehicle Code. Appellants were not, however, charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act despite the discovery of quantities of cash and controlled substances in their possession at the time of their arrest. Appellants entered guilty pleas on the charges and were subsequently sentenced.

On December 17, 1983, nearly one year following their arrest, appellants, along with fifty other individuals, were charged with numerous drug offenses arising out of the information obtained by the authorities through the wiretaps as well as the evidence seized on the occasion of their prior arrest. The drug possession and delivery transactions allegedly occurred on December 10 and 21, 1982, and the criminal conspiracy allegedly occurred during the period between December 1 and December 21, 1982.

Appellants filed a motion to dismiss the charges, alleging that the Commonwealth possessed sufficient information to charge them with these drug-related offenses at the time of their earlier arrest on December 21, 1982. It is on this basis that appellants contend their rights have been violated under 18 Pa.C.S.A. § 110, and the double jeopardy provisions of our state and federal constitutions. We do not agree.

It is true, as appellants assert, that the prosecutor must bring in a single proceeding all known charges against a defendant arising from a single criminal episode. This was the principle set forth in Commonwealth v. Campana [Campana I], 452 Pa. 233, 304 A.2d 432 (1973), vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, Commonwealth v. Campana [Campana II] 455 Pa. 622, 314 A.2d 854 (1974), cert. den., 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). See Commonwealth v. Beatty, 500 Pa. 284, 286, 455 A.2d 1194, 1196 (1983); Commonwealth v. Muffley, 493 Pa. 32, 425 A.2d 350 (1981).

In the interim between Campana I and Campana II, the legislature promulgated § 110 of the Crimes Code, which defined when prosecution would be barred by a former prosecution for a different offense. It is now well established that our case law is in harmony with § 110. See Commonwealth v. Beatty, supra; Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981); Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976).

The relevant portion of section 110 states that:

although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(i) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court, unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(B) the second offense was not consummated when the former trial began.

The provisions set forth by § 110 serve two distinct policy considerations. The purposes of this section are to protect the private citizen from harassment and oppression through repeated efforts by authorities to obtain a conviction, and to protect society’s interest in avoiding piecemeal litigation of criminal cases which drain judicial resources. Commonwealth v. Green, 232 Pa.Super. 134, 141-42, 335 A.2d 493, 496-97 (1975). We cannot agree with appellants that, based on the facts of the instant case, either of these policy-considerations has been compromised by the order of the lower court.

The Supreme Court has defined “same criminal episode” as “an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.” Campana, 452 Pa. at 248, 304 A.2d at 439 (citing ABA project on Minimum Standards Relating to Joinder of Severance § 1.3 (Approved Draft, 1968)). Our supreme court added that not only is the temporal sequence of events important, but also the logical relationship between the separate criminal acts in determining whether they constitute a single criminal episode. Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983).

By arguing a violation of § 110, appellants must establish that their offenses, delivery of a controlled substance, possession with intent to deliver, and criminal conspiracy, were based upon the same conduct or arose from the same criminal episode which resulted in their original conviction. To support their contentions, appellants must show a temporal and logical relationship between the violations stemming from the automobile chase and the subsequent drug charges.

It is noteworthy that the warrants requested by the Lackawanna County District Attorney on December 21, 1982, were search warrants rather than arrest warrants. While any inference from such a distinction cannot be deemed conclusive, it may serve to suggest that the arrests on that evening were not the culmination of a criminal investigation as appellants would have us believe. Rather, the search was yet another step in the investigation which, due to independent circumstances, led to arrests on unrelated charges.

Furthermore, the fact that both arrests were temporally and, to some extent, logically related is not dispositive of the questions before us. We agree with the trial court’s finding that both occasions involve very different issues of law and fact due to the need for additional investigation and the dissimilar evidentiary posture.

Moreover, section 110 (l)(iii)(A) specifically does not require that the two offenses be tried together where conviction of one offense requires proof of a separate element not required for conviction of the other offense and provided that the evil sought to be prevented by each law is substantially different. We see no similarity in either the elements of the separate offenses or in the proof required under the various applicable statutes. Nor do we believe that the separate charges promote the type of evil contemplated by our legislature.

Finally, appellants’ appeal must fail due to the posture of the Commonwealth’s investigation at the time of the arrest on December 21, 1982. As a result of a wiretap, the Commonwealth gathered approximately 3000 hours of telephone conversation which implicated appellants in a drug distribution scheme. However, a considerable amount of time was required to review this information before the scope of the conspiracy and the drug related charges could be adequately defined.

Appellants argue there is no justification for the one year delay in the availability of this information and assert their rights under § 110 and double jeopardy provisions. We cannot accept such reasoning for to do so would force the Commonwealth to abandon each and every criminal conspiracy investigation in situations similar to the instant case.

We therefore conclude that appellants’ appeal is not afforded the protection embodied in § 110 of our Crimes Code since the arrests do not stem from a single criminal episode. The subsequent prosecution for the drug related charges is permitted under 18 Pa.C.S.A. § 110(l)(iii)(A).

Turning to appellants’ double jeopardy contentions, we hold that appellants’ subsequent charges are not barred by the protection provided by our state or federal constitutions.

State constitutional provisions define state law and should not automatically be considered a duplicate of an analogous federal provision. However, some state provisions have been determined to be coextensive with their federal counterparts. Commonwealth v. Santner, 308 Pa. Super. 67, 454 A.2d 24 (1982); Commonwealth v. Smyser, 205 Pa.Super. 599, 211 A.2d 59 (1965). Appellants argue that their offenses arose from a single criminal episode which should be prosecuted in a single proceeding. This is not the type of situation where a double jeopardy defense can be asserted. For double jeopardy, it is not enough that the two offenses be part of the same criminal episode; double jeopardy principles bar double prosecution only for a single offense. Commonwealth v. Webster, 323 Pa. Super. 164, 178-79, 470 A.2d 532, 539-40 (1983). Having determined that appellants’ offenses do not arise from a single criminal episode, their appeal must fail.

In addition, our court in Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983), observed that to date, our Supreme Court had not given a more restrictive or more expansive interpretation of Pennsylvania’s double jeopardy clause than that given the fifth amendment by the United States Supreme Court. Therefore, due to the similar textual and policy considerations of the two provisions, appellants are not afforded additional protection under the federal constitution.

Order affirmed. Case remanded for further proceedings. Jurisdiction is relinquished.

SPAETH, President Judge, concurs in the result.

      . The denial of a pretrial application to dismiss an information on the ground that the retrial would violate defendant’s right not to be placed twice in jeopardy may be appealed before retrial is held. Commonwealth v. Lark, 330 Pa.Super. 225, 227 n. 2, 479 A.2d 522, 523 n. 2 (1984).

      . For purposes of judicial economy, this court has consolidated the appeals of Lawrence Meyers and Rose Meyers since they raise identical issues of law and fact.

      . Appellant Rose Meyers was charged with one count of delivery of a controlled substance, three counts of possession with intent to deliver, and five counts of criminal conspiracy. Appellant Lawrence Meyers was charged with two counts of delivery of a controlled substance, three counts of possession with intent to deliver and five counts of criminal conspiracy.


author: HOFFMAN, Judge: McEWEN, Judge,

text:
    498 A.2d 950
    Georgette JUSTICE and Richard Mays, Administrators of the Estate of Rafiki Mays, Deceased, and Georgette Justice and Richard Mays, in their own right, Appellants, v. BOOTH MATERNITY CENTER and Phillip Glass, M.D.
    Superior Court of Pennsylvania.
    Argued Oct. 9, 1984.
    Filed Sept. 20, 1985.

      Mark I. Bernstein, Philadelphia, for appellants.
    Donald J. Sweeney, Philadelphia, for Booth, appellee.
    Before ROWLEY, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order sustaining preliminary objections in the nature of a demurrer to appellants’ amended complaint. Appellants raise four issues in their brief:

1. May the Administrators of the estate of a stillborn child and the father of the child, in his own right, recover damages for the death of the child during childbirth caused by the negligence of the attending obstetrician?
2. May the Administrators of the estate of a stillborn child and the father of the child, in his own right, recover damages for the breach of the warranty of due care in the delivery of the child or for the lack of informed consent as to the procedures used in the delivery of the child?
3. May the father of a stillborn child, in his own right, recover damages for the emotional distress caused by the death of his child resulting from the negligence of the attending obstetrician where the father witnessed the entire procedure and the death in question?
4. In light of the provisions of the Abortion Control Act of 1982, 18 Pa.C.S. 3201 et seq., and the decisions in thirty-one other states, is the decision in Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9, and its progeny controlling in medical malpractice by an obstetrician during delivery which results in death three minutes prior to the delivery of the stillborn child?

We affirm.

Appellant Georgette Justice, while pregnant with the decedent child, was under the care of appellee Phillip Glass, M.D., who was associated with appellee Booth Maternity Center. The pregnancy was uneventful except for a minor fall which occurred on February 4, 1982, when Ms. Justice was nine months pregnant. Two days later, she was admitted to Booth Maternity Center. During delivery, complications arose which resulted in the stillbirth of the child.

Appellants, Georgette Justice and Richard Mays, on their own behalf and on behalf of the estate of their stillborn child, filed a complaint which alleged negligence and breach of warranty on the part of appellees with regard to the delivery of the decedent.

We note at the outset that our study here is subject to the well established precept that “[i]n reviewing a demurrer we must accept as true all well-pleaded facts and the reasonable inferences therefrom. A demurrer can only be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer.” Douglas v. Schwenk, 330 Pa.Superior Ct. 392, 393, 479 A.2d 608, 609 (1984) (citations omitted).

The principal inquiry of this appeal is whether the estate of a stillborn child may recover in a civil action at law for damages which occur as a result of negligent pre-natal care. Appellants acknowledge that our Supreme Court has specifically disallowed such suits and stated that, “whereas an action will lie on behalf of an infant born alive for damages resulting from injury tortiously inflicted during the infant’s fetal existence, neither a survival action nor a death action will lie in the case of a stillborn infant.” Scott v. Kopp, 494 Pa. 487, 490, 431 A.2d 959, 961 (1981) (emphasis in original). See also Marko v. Philadelphia Transportation Co., 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964). Appellants, nevertheless, argue that the Pennsylvania Legislature has, through the Abortion Control Act, extended to the unborn the equal protection of the laws thus permitting the estate of the instant decedent to bring this wrongful death and survival action.

Our review of the legislative history of the Act reveals that, as originally drafted, the statute contained a section which expressly permitted a wrongful death action to be brought, but only on behalf of destroyed ova which were fertilized in vitro. That section stated:

§ 3216. Private action for injunctive relief and damages.
(a) Petition.—Any adult person or any agency or association by its representative may file a petition in a court of competent jurisdiction alleging that a person or persons has violated this chapter, is about to violate this chapter or is in the course of a continuing violation of this chapter, or, under the circumstances provided in section 3213(g)(2) (relating to prohibited acts), may institute an action for wrongful death. The petition shall be verified but the statements therein may be made upon information and belief.
(b) Guardian ad litem trustee.—The petition may seek appointment of the petitioner, or of some other named person, or of a person to be named within the discretion of the court, as guardian ad litem for any child or class of children, or any unborn child or class of unborn children, regardless of whether that child or class of children already has parents or guardians. If the petition alleges a wrongful death, an impending violation of section 3213(g)(1), or brings an action under section 3213(g)(2), it may seek appointment of the petitioner, or of some other named person, or of a person to be named within the discretion of the court, as a public trustee. The court may revoke such an appointment at any time, after notice and hearing, upon its own motion or upon the motion of an intervenor for collusion or lack of prosecution.
(c) Relief.—The petition may seek injunctive relief or actual damages or exemplary damages or any combination thereof. In making determinations with regard to temporary or preliminary injunctive relief, the court shall presume that any violation of this chapter constitutes irreparable injury and is against the public interest.

After prolonged, intense debate in the House of Representatives, however, section 3216 was amended to remove the wrongful death provisions. As a result, the present Abortion Control Act provides no express civil remedy to a fetus for any tortious or criminal acts on the part of those who perform abortions.

We are of the view that the legislature deleted the wrongful death action from the act because it wished to retain in this Commonwealth the policy of denying access to the courts by those who have not first been born alive. Therefore, we must reject appellants’ attempt to sue appellees as representatives of the estate of the deceased child.

Appellant Mays, on his own behalf, also seeks damages for (1) the negligent delivery of the child, (2) breach of a warranty of successful delivery, (3) lack of “informed consent as to the procedures used in the delivery of the child,” and (4) negligent infliction of emotional distress. We note, initially, that Mays’ negligence action is fatally deficient because he avers no injury to himself as a result of appellees’ allegedly tortious actions. His argument, therefore, is meritless.

As for his allegation of lack of informed consent, [t]he law in this Commonwealth is that where a patient is mentally and physically able to consult about his condition, in the absence of an emergency, his “informed consent” is a prerequisite to a surgical operation by his physician. An operation without such informed consent is a technical assault, making the physician liable for any injuries resulting from the invasions, regardless of whether the treatment was negligently administered.

Cooper v. Roberts, 220 Pa.Superior Ct. 260, 264, 286 A.2d 647, 649 (1971) (emphasis supplied) (citations omitted). Appellant Mays, however, was not the patient in this case and his body was not in any fashion “invaded” by appellees. Rather, an action based upon the concept of informed consent would only be the prerogative of appellant Justice because she experienced the alleged “technical assault.” Accordingly, we find that the lower court properly rejected this claim.

Mays also asserts that appellee breached an alleged warranty to successfully deliver the child. Because the allegations of fact upon which appellant premises this assertion do not establish the existence of such a warranty, however, we must also find this claim to be meritless.

Finally, Mays seeks to recover for appellee’s negligent infliction of emotional distress. In order to state a cause of action for negligence resulting in emotional harm, a plaintiff must allege bodily harm or other compensable damage. See Banyas v. Lower Bucks Hospital, 293 Pa.Superior Ct. 122, 128-29, 437 A.2d 1236, 1239 (1981); Restatement (Second) of Torts § 436A (1977). Here, appellant has averred no physical harm. We therefore find that he has failed to state a cause of action for negligent infliction of emotional distress.

Accordingly, we affirm the order of the lower court sustaining appellees’ preliminary objections.

Affirmed.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

My distinguished colleagues of the majority have quite accurately set forth in their thoughtful opinion the law as it currently exists in this Commonwealth. I am compelled, however, to formally express disagreement with the presently prevailing view that the heirs and estate of a stillborn child may not bring a cause of action under the Wrongful Death Act and the Survival Act.

It was almost a half century ago that our Supreme Court ruled in Berlin v. J.C. Penney Co., 339 Pa. 547, 16 A.2d 28 (1940), that an action would not lie for injuries negligently inflicted upon a child when in the womb. Twenty years later, however, the Supreme Court in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960), overruled Berlin when it (1) considered the claim of an infant who was born mongoloid, allegedly as a result of injuries sustained when she was at the age of one month past conception, (2) permitted that cause of action to lie against the alleged tortfeasor, and, (3) with regard to the claim that the fetus must be viable specifically declared:

As for the notion that the child must have been viable when the injuries were received, which has claimed the attention of several of the states, we regard it as having little to do with the basic right to recover, when the fetus is regarded as having existence as a separate creature from the moment of conception.

Id., 401 Pa. at 273, 164 A.2d at 96 (emphasis supplied).

The clarity of this pronouncement was such that the United States Third Circuit Court of Appeals, in Gullborg v. Rizzo, 331 F.2d 557 (3rd Cir., 1964), decided that the Pennsylvania Supreme Court would adopt the view that the heirs of a stillborn infant may bring an action under Pennsylvania’s wrongful death statute—a view that had already been taken in at least nine other states. That prediction fell, however, far short since our Supreme Court refused to follow the course that the Circuit Court had designated and instead enunciated the rule that no cause of action under the wrongful death and survival statutes accrues to the heirs or estate of a stillborn child. See Marko v. Philadelphia Transportation Co., 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964). That ruling has remained the law of this Commonwealth through the present time. See Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981).

The Supreme Court in Carroll, supra, reasoned that the legislature had, by its reference in the Wrongful Death Act to intestacy distribution, imposed by implication the restriction that only the heirs of a person who dies subsequent to a live birth may commence a wrongful death action. The Court employed, however, a somewhat elusive logic to reach that conclusion for, while the Court correctly opined that the Intestate Act required that a person could not become an intestate heir unless born, see 20 Pa.C.S. § 2104(4), it does not logically follow that a stillborn fetus may not have intestate heirs. The instant decedent does not seek to recover under the Wrongful Death Act as an intestate heir for, admittedly, such an action would be barred by statute. See 42 Pa.C.S. § 8301(b). Rather, it is the intestate heirs of the fetus who seek to recover pursuant to the Act. Thus, any apparent bar arising from the intestacy statute to a recovery by the heirs of the decedent is illusory.

It has been also said that an infant born deformed or handicapped represents a considerable burden to the parents or the community and that, therefore, prudent policy requires that the parents of such a handicapped child be permitted to seek financial recovery—but that, on the other hand, parents of a stillborn child should be precluded from such a recovery since the stillborn child does not represent such a burden to either parents or community. Such an assertion overlooks the jurisprudential seed of our study— the tort itself. The wrong triggers the recompense and it must be emphasized that a common law negligence action and statutory wrongful death action contemplate differing recompense. The plaintiff in a negligence suit seeks, inter alia, damages based upon the expense of future medical care and other future losses which will be incurred as a result of the conduct of the tortfeasor. On the other hand, in a wrongful death action, the victim is not the beneficiary of the litigation since the heirs of the victim seek compensation for damages incident to their loss of the life of the decedent. As deserving of recovery as may be the parents of a child born handicapped due to negligence, that worthy decision does not compose a rationale to distinguish and deny recovery by the heirs of a stillborn child of the pecuniary losses which they incur as a result of the death of that child.

The further assertion that live birth reduces the issues of causation inherent in cases involving the death of a stillborn has a certain ring of inconsistency. Initially, it should be noted that the factor of difficulty in establishing the causation element of a negligence claim should not bar the very claim itself. Moreover, the difficulty that was to confront the plaintiff in Sinkler v. Kneale, supra, in proving causation, did not prevent the Supreme Court from remanding the case for the presentation of medical evidence upon causation of injuries alleged to have been sustained when the child was but one month in development in the womb.

Nor may one assert with consistency that the nature of the damages in a wrongful death action and a survival action for a stillborn child is of so speculative a nature that such suits must be enjoined, while permitting the calculation of such damages when the case concerns the death of an infant born alive. Indeed, the courts of this Commonwealth have traditionally accepted a certain degree of uncertainty with regard to the evaluation of damages in wrongful death and survival cases in which the decedent is a minor. See Hankins v. Mack, 364 Pa. 417, 72 A.2d 268 (1950); Alleva v. Porter, 184 Pa.Super. 335, 134 A.2d 501 (1957). It would also seem that, however valid may be the claim that the parents of a stillborn child are fully compensated for their losses through recovery in their own independent actions, it is beyond dispute that in actions brought under the survival statute, the estate of the child would not be able to recover for the loss of the earning power of the decedent, from the age of twenty-one years through his estimated working life span (less, of course, personal maintenance expenses). See Slaseman v. Myers, supra. Thus, a potentially substantial pecuniary loss may not, under the present law, be recouped.

Those authorities who advocate the prerequisite of a living being assert that such a requirement, though arbitrary, is necessary. While the majority has, in Scott v. Kopp, supra, expressed this notion in especially convincing fashion, it is, nonetheless, the minority—as well as vanishing—view, for, as the insightful dissent in Scott v. Kopp notes, the majority of jurisdictions have concluded that viability is the point where a “living person ” is deemed to exist. One particularly thoughtful analysis of this issue presents in quite compelling fashion what might well be the consensus of the thirty-one jurisdictions which compose the prevailing view:

In terms of a right of action, no justifiable distinction exists, for example, between the stillbirth of a foetus in an advanced stage of development and the birth alive of a comparable foetus with death shortly ensuing. Protection from tortious injury should be afforded an interest in being born alive and in living a full and complete life after birth. ‘The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual ... ’ And assuming the validity of a right to live and all that existence entails, [the] conclusion [which utilizes birth as the instant when legal rights accrue under the Wrongful Death and Survival Acts] contradicts [the] thesis for permitting a child born alive to recover for prenatal injury—namely that a tortfeasor should account for the direct consequences of his wrongful conduct.

Del Tufo, Recovery for Prenatal Torts: Actions for Wrongful Death, 15 Rutgers L.Rev. 61, 77 (1960) quoting Blackstone’s Commentaries, Book 1, 30. See also Rainey v. Horn, supra, 221 Miss. at 281, 72 So.2d at 439.

It remains, nonetheless, the role of this Court and its members to pronounce the law as it presently exists and it is for that reason that I concur in the ruling of the majority.

      . Appellants are (1) Richard Mays, the father of the deceased child, (2) Georgette Justice, the mother of the deceased child, and (3) Mays and Justice as Administrators of the estate of the deceased child.

      . Abortion Control Act, Act of June 11, 1982, P.L. 476, No. 138, 18 Pa.C.S. § 3201 et seq.

      . Section 3202(c) of the Act states:
      (c) Construction.—In every relevant civil or criminal proceeding in which it is possible to do so without violating the Federal Constitution, the common and statutory law of Pennsylvania shall be construed so as to extend to the unborn the equal protection of the laws and to further the public policy of this Commonwealth encouraging childbirth over abortion.

      . We note that the author of Senate Bill 742 specifically stated that "the wrongful death [action] only related to the in vitro fertilization section.” See House Journal, page 2347, December 9, 1981.

      . This section was contained in Senate Bill 742 which, although passed by both Houses of the Legislature, was vetoed by the Governor on December 23, 1981. The Bill which eventually became the present Abortion Control Act was Senate Bill 439 which was signed by the Governor on June 20, 1982.

      . 42 Pa.C.S. § 8301
      § 8301. Death Action
      (a) General rule.—An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime.
      (b) Beneficiaries.—Except as provided in subsection (d), the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere. The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth.

        (c) Special damage.—In an action brought under subsection (a), the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.
      (d) Action by personal representative.—If no person is eligible to recover damages under subsection (b), the personal representative of the deceased may bring an action to recover damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.

      . § 8302. Survival action
      All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.

      . Viability has been defined as “that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems." Black’s Law Dictionary (5th ed., 1979).

      . Where an issue of first impression is presented to a federal court in a diversity action, that court must determine how the state supreme court would rule in a similar case. Herman v. Welland Chemical, Ltd., 580 F.Supp. 823 (M.D.Pa., 1984).

      . See Gorke v. Le Clerc, 23 Conn.Sup. 256, 181 A.2d 448 (1962); Worgan v. Greggo and Ferrara, Inc., 50 Del. 258, 128 A.2d 557 (1957); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky., 1955); State of Maryland, Use of Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949); Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106 (1959).

      . § 2104. Rules of descent
      The provisions of this chapter shall be applied to both real and personal estate in accordance with the following rules:
      ******
      (4) After-born persons; time of determining relationships.

        Persons begotten before the decedent’s death but born thereafter, shall take as if they had been born in his lifetime, (emphasis supplied)

      . Moreover, it should be further noted that even those states which do not allow the heirs of the stillborn fetus to bring their cause of action do not dispute the existence of the estate or the standing heirs. Cf. Justus v. Atchison, 19 Cal.3d 564, 581 n. 14, 139 Cal.Rptr. 97, 108 n. 14, 565 P.2d 122, 133 n. 14 (1977) (“For present purposes we shall assume that the parents of a stillborn fetus can be its heirs.")

      . Where the decedent is a minor, however, damages for loss of future earning power are limited to the earnings the decedent would have generated during his adult life. Prince v. Adams, 229 Pa.Super. 150, 324 A.2d 358 (1974).

      . The Dissenting Opinion of Justice Larsen in Scott listed twenty-seven jurisdictions which have ruled in favor of permitting recovery for the death of a stillborn child:

        See Eich v. Town of Gulf Shores [293 Ala. 95], 300 So.2d 354 (Ala.1974); Hatala v. Markiewicz, 26 Conn.Sup. 358, 224 A.2d 406 (1966); Worgan v. Greggo and Ferrara, Inc. [50 Del. 258], 128 A.2d 557 (Del.Super.1956); Simmons v. Howard University, 323 F.Supp. 529 (D.D.C.1971); Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955); Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973); Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1972); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky.1955); Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975); O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949); Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954); White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106 (1959); Evans v. Olson, 550 P.2d 924 (Okl.1976); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974); Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975); Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971); Kwaterski v. State Farm Mutual Auto Insurance Company, 34 Wis.2d 14, 148 N.W.2d 107 (1967); Wascom v. American Indemnity Corporation, 383 So.2d 1037 (La.App.1980); Salazar v. St. Vincent Hospital, 95 N.M. 150, 619 P.2d 826 (1980); Vaillancourt v. Medical Center Hospital of Vermont, Inc. [139 Vt. 138], 425 A.2d 92 (Vt.1980).
      It may be noted that of the foregoing twenty-seven jurisdictions: (1) Georgia holds: a fetus becomes a child when it is “quick” or capable of moving in its mother’s womb. See Porter v. Lassiter, supra; and (2) Rhode Island holds: a stillborn child, whether viable or nonviable, is a person within the meaning of the Wrongful Death Act. Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976);
      Since Scott, four jurisdictions have joined the majority view. See Summerfield v. Colleen, 144 Ariz. 467, 698 P.2d 712 (1985); Community Hospital v. Williams, 482 A.2d 394 (D.C.App., 1984); Volk v. Balda

        zo, 103 Idaho 570, 651 P.2d 11 (1982); O’Grady v. Brown, 654 S.W.2d 904 (Mo., 1983).
      The following cases establish birth as the legally recognizable demarcation in their jurisdictions: Justus v. Atchison, supra; Stern v. Miller, 348 So.2d 303 (Fla., 1977); McKillip v. Zimmerman, 191 N.W.2d 706 (Iowa, 1971); Danos v. St. Pierre, 402 So.2d 633 (La., 1981); Kuhnke v. Fisher,-Mont.-, 683 P.2d 916 (1984); Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W.2d 229 (1951); Graf v. Taggert, 43 N.J. 303, 204 A.2d 140 (1964); Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969); Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966); Hamby v. McDaniel, 559 S.W.2d 774 (Tenn., 1977); Nelson v. Peterson, 542 P.2d 1075 (Utah, 1975); Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969).
      The following jurisdictions have not yet ruled on the issue: Alaska, Arkansas, Colorado, Hawaii, Maine, North Dakota, South Dakota, Texas and Wyoming.