author: TAMILIA, Judge:

text:
    528 A.2d 659
    COMMONWEALTH of Pennsylvania v. Matthew HOSEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1987.
    Filed July 16, 1987.

      James M. Goodwin, Assistant Public Defender, Mercer, for appellant.
    Linda H. Barr, Assistant District Attorney, Mercer, for Com.
    Before CIRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   TAMILIA, Judge:

Appellant in this case appeals from judgment of sentence. This Court affirms.

Appellant was accused of shooting Isaac A. Bridges on March 25,1986 outside the Majestic Bar in Farrell, Pennsylvania. The circumstances surrounding the shooting allegedly stemmed from Mr. Bridges’ kissing the appellant’s girlfriend on the cheek and squeezing her on the buttocks as he exited the bar. The appellant followed Bridges out of the bar, pulled out a handgun and shot him in the thigh. Several people, including the victim’s brother, witnessed the occurrence and testified at trial. Appellant was charged with criminal attempt-homicide, aggravated assault, simple assault and recklessly endangering another person. Bond was increased at a preliminary hearing and appellant’s subsequent motion for reduction of bond was denied on May 22, 1986. Appellant then filed a Petition for Writ of Habeas Corpus and/or Other Appropriate Relief and that motion was denied after a hearing on July 9, 1986.

In August 1986, after a jury trial, defendant was found guilty of all charges except the criminal-attempt homicide charge. Appellant filed post-trial motions and these were denied by Orders dated October 23, 1986. Sentence was entered on December 22, 1986 and was amended on January 8, 1987. Appellant filed this timely appeal as to the court’s ruling on his post-trial motions.

Appellant first argues that the ruling of the lower court judge, which dismissed appellant’s petition for writ of habeas corpus, was in error. He argues that he was prejudiced by the judge’s failure to grant the petition, specifically as to the criminal attempt-homicide charge. In his Order, the judge states, “[HJaving received testimony on the matter and having determined that there is sufficient evidence to sustain at least some of the charges against the defendant, the Writ of Habeas Corpus is dismissed ...” (Order, 7/9/86). We affirm the lower court’s ruling on this matter as we find the appellant has offered no evidence of any prejudice which might have resulted from the ruling. Appellant argues that his bond was set based on all charges, including the attempted homicide, and that without that charge he could have succeeded in obtaining a reduction in his bond. With bond reduced, he could have posted bond and would thus have been in a better position to contact witnesses to testify on his behalf. The trial court, in its Opinion, however, points out that the appellant did, in fact, produce six witnesses in his defense and testified himself as well (Slip Op., Acker, J., 3/10/87, p. 16). Appellant does not indicate what additional witness he might have produced had he been released.

Additionally, the jury found appellant not guilty of the offense of attempted homicide. Since he cannot be subject to another trial on that charge, there is no relief which could be given him at this stage (Slip Op. at 17). Accordingly, we find this issue to have been mooted by the trial.

Appellant’s second contention on appeal is that the evidence at trial was so weak, inconsistent and contradictory so as to warrant a new trial, or in the alternative, the evidence produced at trial was insufficient as a matter of law to support the verdict. Defendant properly protected the record for review by filing a Motion for Judgment of Acquittal at the conclusion of all testimony, which motion was denied, and by later filing a Motion for New Trial and Motion for Arrest of Judgment. As the trial court correctly points out in its Opinion, the allegations of inadequacy contained in the appellant’s post-trial motions are boilerplate, and thus this Court need not proceed further on this argument since it has not properly been preserved for our review. Paragraph 4 of both appellant’s Motion for New Trial and his Motion for Arrest of Judgment contain identical language. They read:

That the evidence at trial was so weak, inconclusive and contradictory that [a new trial] is warranted in that the testimony should have lead [sic] the jury to a verdict of not guilty to all the charges and specifically as to the charge of aggravated assault, could not have led the jury to the conclusion that the defendant did cause or attempt to cause serious bodily injury.

Motion for New Trial and Motion in Arrest of Judgment.

Appellant has brought this contention in boilerplate language in his motions in arrest of judgment and for new trial. In Commonwealth v. Tillia, 359 Pa.Super. 302, 518 A.2d 1246 (1986), we said:

This court has consistently held that a post-verdict motion, stating merely that the evidence was insufficient to support the verdict or that the verdict was against the weight of the evidence, will preserve no issue for appellate review unless the motion goes on to specify in what respect the evidence was insufficient, or why the verdict was against the weight of the evidence.

Id., 359 Pa.Superior Ct. at 318, 518 A.2d at 1254 (citing Commonwealth v. Holmes, 315 Pa.Super. 256, 259-60, 461 A.2d 1268, 1270 (1983) (en banc) (emphasis in original)). In the case before us, appellant’s boilerplate allegations contained in his post-trial motions do not preserve the issue for appeal.

The last allegation which appellant brings on appeal is that the jury charge given by the trial judge was unduly prejudicial and/or in error so as to warrant a new trial. At trial, appellant’s only exception was to the court’s stating the caliber of the gun and questioning whether Miss Jackson (appellant’s girlfriend) pulled on (appellant’s) arm. Pennsylvania Rule of Criminal Procedure 1119 provides:

No portion of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate____

Pa.R.Crim.P. 1119(b). See Commonwealth v. Ballard, 501 Pa. 230, 460 A.2d 1091 (1983); Commonwealth v. Hoang Khai Tran, 307 Pa.Super. 489, 453 A.2d 993 (1982). Thus we may only review the two items above to which appellant took exception. We find no error in the court’s charge.

In Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983), we said:

The trial judge may comment on evidence as long as the jury is left free to act on its own view of the evidence. Commonwealth v. Austin, 274 Pa.Super. 1, 417 A.2d 1220 (1980); Commonwealth v. Dougherty, 259 Pa.Super. 88, 393 A.2d 730 (1978). It is well settled that the trial court’s instructions to the jury must be read as a whole, and that error cannot be predicated on isolated excerpts from the charge. Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981); Commonwealth v. Todaro, 301 Pa.Super. 1, 446 A.2d 1305 (1982).

Id., 322 Pa.Superior Ct. at 269, 469 A.2d at 614.

After reviewing the trial judge’s instructions as a whole, we find that the jury was left free to act on its own view of the evidence. In fact, the trial judge repeatedly reminded the jury that it was not bound by his comments.

Accordingly, we find no merit to appellant’s contention. Judgment of sentence is affirmed.

Judgment of sentence affirmed.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    528 A.2d 662
    Earl MITCHUM, Edwin Murphy, John J. Sullivan, Frank Cataldi, R.M. Davis, Jr. and A. Gambo, Suing on their Behalf and on Behalf of Persons Similarly Situated, Appellants, v. ATLANTIC RICHFIELD COMPANY and Employees Retirement System of the Atlantic Richfield Company, Joseph E. Thompson, Jr., Charles R. Webb, John J. O’Brien, John J. Nussbaumer, David R. Boyd, Alvin J. Carpenter and William W. Dougherty, Appellees.
    Superior Court of Pennsylvania.
    Argued March 11, 1987.
    Filed July 21, 1987.

      James J. DeMarco, Philadelphia, for appellants.
    Jerome A. Hoffman, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and McEWEN, and MONTEMURO, JJ.

       President Judge Cirillo replaced the deceased Justice Roberts.

   MONTEMURO, Judge:

This appeal lies from an Order granting appellees’ motion for summary judgment.

The underlying cause of action finds its basis in the combination of the pension plans of the three companies whose (successive) corporate mergers produced what is now the Atlantic Richfield Co. (ARCO).

In January, 1966, Atlantic Refining Co. merged with Richfield Oil Corp., forming ARCO, and, at the same time combined the assets of the companies’ employee pension plans into a single uniform plan. In July, 1969, the Atlantic Independent Union (AIU), pursuant to a collective bargaining agreement, ratified the new uniform plan. Also in 1969, Sinclair Oil Co. was added to the ARCO conglomerate and its pension fund too was incorporated into the ARCO uniform plan. This addition was approved by the union, again through collective bargaining procedures, in January 1970.

In January 1972, the first of two complaints in equity was filed, claiming that the assets of the original Atlantic Refining pension plan had been impaired or diluted by the consolidation. This complaint, the Mitchum complaint, was filed on behalf of the members of the Atlantic plan against ARCO and the plan trustees. A second suit, the Thompson complaint, was filed four months later in April, 1972 by AIU officers on behalf of the plaintiffs covered by the Mitchum complaint and, as well, the employees affected by the combination with the Sinclair Oil pension plan.

Both complaints alleged that the members of the Atlantic Refining Co. pension plan paid in more, proportionately, than the employees of Richfield or of Sinclair Oil, and that the intended result of the consolidation was to utilize the Atlantic plan assets to offset the shareholders liabilities to the Richfield plan. The Mitchum plaintiffs, a dissident faction of the AIU, then moved, successfully, to amend their pleading to incorporate an averment that the union officials who instituted the companion suit had conspired with Atlantic Refining Co. management to deprive employees of their pension rights.

On March 4, 1974, the trial court, in response to intervening motions, entered an order permitting: (1) the Mitchum plaintiffs to proceed as a class action; (2) a joinder of additional plaintiffs; and (3) joinder of additional defendants and amendment of the complaint.

After what the trial court characterizes as “extensive discovery, innumerable pretrial petitions” and “countless conferences,” (Trial Court Op. at 3), counsel agreed that the union plaintiffs would withdraw their suit and that the Mitchum complaint would be amended to remove the union plaintiffs as individual defendants. Atlantic Richfield and the Mitchum plaintiffs both moved for judgment on the basis of the record, and the trial court, on May 19, 1986, granted Atlantic Richfield’s motion for summary judgment. This appeal followed.

Appellees have challenged this court’s jurisdiction over the appeal on grounds that no final order was entered by the court below as is required by 42 Pa.C.S.A. § 742, Pa.R.A.P. 301. Specifically, Rule 301(b) provides that such final order shall be set forth on a separate document. This was not done, as the Order granting the appellees’ motion for summary judgment appears at the conclusion of the lower court’s Opinion. This is a waivable defect, where it is clear that the opinion below was intended to represent the final decision in the case, and so long as appellee does not object to the taking of an appeal in the absence of a separate judgment, Brandschain v. Lieberman, 320 Pa.Super. 10, 11, 466 A.2d 1035, 1036 (1983). See also Lengyel v. Frank Black, Jr., Inc., 293 Pa.Super. 297, 438 A.2d 1003 (1981). Neither of these conditions obtain here.

Appellees did not acquiesce to proceeding with an appeal absent a discrete Order. More importantly, in its Opinion, the trial court expressly retained jurisdiction over the certified class involved, and made plain its intention to enter judgment only after future notice to all members of that class, hence the absence of an Order evidencing finality. This appeal must therefore be quashed. The record is remanded to the Court of Common Pleas of Philadelphia County without prejudice to enter a judgment at the appropriate time. See generally Gelzhiser v. Fisher, 418 Pa. 88, 208 A.2d 836 (1965).

Appeal quashed.

      . Earl Mitchum, the representative plaintiff is now deceased.


author: CIRILLO, President Judge:

text:
    528 A.2d 959
    Peter MESSINA and Mary T. Messina, h/w, Appellants v. Edward C. SILBERSTEIN and Karen M. Silberstein, h/w, and David Frampton and Joan E. Frampton, h/w.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1987.
    Filed May 18, 1987.
    Reargument Denied July 31, 1987.

      Max W. Gibbs, Broomall, for appellants.
    Joseph B. Vanwyk, Media, for appellees.

      Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal from a final decree of the Court of Common Pleas of Delaware County denying a prospective buyer’s request for specific performance of a contract for the sale of land. We reverse.

On April 26, 1983, appellant Peter Messina agreed to purchase a portion of a tract of property owned by appel-lees Edward Silberstein and David Frampton. Messina gave the owners a $500.00 deposit. The balance of the purchase price was to be paid “at such time as the parties determine the square feet involved, but no later than May 2, 1983.” The agreement also contained a clause specifying that “time is of the essence”. The trial court found that neither party determined the square footage by May 2, 1983. Silberstein informed Messina that he and Frampton were having trouble getting good title and the buyer did not tender the balance of the consideration on May 2nd. Messi-na then calculated the square footage and tendered the balance on May 27, 1983 to attorney Edward Harkin, the drafter of the original sales agreement. Silberstein did not take possession of the funds nor did he indicate to Mr. Harkin that he considered the agreement void. The parties continued to discuss the proposed sale for several months until the sellers refused to perform. Messina brought an action in equity, seeking specific performance. The trial court refused the requested relief. The court noted that Colywyn Borough Code § 133-2 forbids a land-owner from subdividing his land without the borough’s prior approval. The court stated that because no such approval was ever given, performance of the contract would be illegal and a court in equity may not order performance of an illegal bargain.

Appellant presents four issues for our review: (1) whether the attorney who drafted the agreement was the sellers’ agent; (2) whether the trial court should have ruled extrinsic evidence of the sellers’ intent inadmissible because of the parol evidence rule; (3) whether the “time is of the essence” clause was waived; and (4) whether the court should have ordered specific performance even though the borough had not approved the subdivision. For the reasons identified in the following discussion, we need only consider the last two of these issues.

A court may order specific performance of a contract to sell land when the agreement is complete and certain, where no adequate remedy at law exists and the vendor violates the terms of the sales agreement. Rusiski v. Pribonic, 326 Pa.Super. 545, 554, 474 A.2d 624, 629 (1984) rev’d. on other grounds, 511 Pa. 383, 515 A.2d 507 (1986). The trial court found that the agreement was complete and certain and susceptible to the remedy of specific performance.

However, the court ruled that the bargain violated the Colwyn Borough Code making it illegal and unenforceable. See Contractor Industries v. Zerr, 241 Pa.Super. 92, 97, 359 A.2d 803, 805 (1976).

The pertinent provision of the Code provides:

It shall be unlawful for the owner of any land in the Borough to subdivide the same into two (2) or more lots or parcels unless and until a plan thereof shall have been prepared by a registered professional engineer or survey- or, submitted to and approved in writing.

The contract between Messina and the sellers failed to specify which party should prepare and submit the plan. However, the Code provision does not state that the purchase of such a subdivided parcel is void or illegal. The provision restricts the owner of the land only. Therefore, it logically follows that it is the owner’s responsibility to obtain the requisite approval. This is also the more practical result. Prior to settlement, the owner is in possession of the tract. He does not need the buyer’s cooperation to bring a surveyor onto the property to draw up a plan. But, the buyer could not bring a surveyor or engineer onto the seller’s property without permission. The owner is in the better position to secure compliance with the ordinance. Furthermore, the owner has an interest in the entire tract to be subdivided while the buyer’s interest is limited to the one parcel he plans to purchase. If an owner were to subdivide his land into twenty-four parcels and sell them to twenty-four different buyers, only the seller could possibly prepare a subdivision plan. No single buyer would be in a position to do so. All of these considerations lead to the conclusion that unless the contract of sale provides otherwise, it is the seller’s obligation to comply with the Code section in question.

The instant sale is not necessarily illegal. It is only unlawful if the seller does not comply with the Borough Code. We will not allow a seller to avoid an otherwise legal transaction because his own failure to act is unlawful. O’Brien v. O’Brien Steel Construction Co., 440 Pa. 375, 380, 271 A.2d 254, 256 (1970). See also First National Bank v. Baer, 277 Pa. 184, 189-90, 120 A. 815, 817 (1923); Fitzpatrick v. Shay, 314 Pa.Super. 450, 458, 461 A.2d 243, 247 (1983); Shafer v. A.I.T.S., 285 Pa.Super. 490, 494, 428 A.2d 152, 154 (1981).

Of course, we will not order the parties to complete a transaction in violation of the law. However, we are confident that the trial court will be able to tailor an appropriate remedy. A court of equity may order specific performance pending approval of the subdivision plan. See Cochrane v. Szpakowski, 355 Pa. 357, 363, 49 A.2d 692, 695 (1946).

The trial court stated that the agreement provided that “time is of the essence” and it was impossible to get subdivision approval by May 2nd. Therefore, the court held that the agreement was unenforceable. However, because the sellers failed to even apply for approval, it is impossible to determine whether the borough would have immediately granted the application. We will not allow a party’s own nonfeasance to defeat his contractual obligations.

The sellers also argue that when a contract specifies “time is of the essence”, the buyer must tender within the requisite time period or a court will refuse to grant him specific performance. The trial court found that Messina did not tender on May 2, 1983, and therefore is not entitled to specific performance. The court held that “the fact that the defendants were not in a position to convey good title on May 2, 1983 is irrelevant to the issue at hand.” The court based its conclusion on our Supreme Court’s decision in Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). However, the trial court has misinterpreted the Phaff Court’s holding.

In Phaff a buyer failed to tender within the time specified in the “time is of the essence” clause. The buyer later sought specific performance. He claimed that he did not tender because the seller could not convey good title at that time. However, the seller denied this allegation. Id,., 451 Pa. at 148, 303 A.2d at 828. The Phaff Court held that the agreement could not be enforced in equity because the buyer did not tender and the seller claimed that he would have been able to convey good title. Id., 451 Pa. at 153, 303 A.2d at 836.

However, in Williams v. Barbaretta, 359 Pa. 488, 59 A.2d 161 (1948), the Court held that the law will not require the doing of a futile act. In Williams, the contract at issue also contained a “time is of the essence” clause with a specific settlement date. Prior to the date, the sellers informed the buyers that they would be unable to move by the agreed upon time. The buyers did not tender within the contractually allotted time and the sellers later attempted to break the agreement. The Court granted specific performance for the buyers even though they had not tendered by the specified date. Id., 359 Pa.Superior Ct. at 490-91, 59 A.2d at 162-63. The Court stated that the buyers’ usual obligation to tender was excused because it would have been a useless act since the sellers were not ready to settle. Id., 359 Pa.Superior Ct. at 491-92, 59 A.2d at 163. See also Detwiter v. Capone, 357 Pa. 495, 504, 55 A.2d 380, 386 (1947); Phillips v. Tetzner, 357 Pa. 43, 47, 53 A.2d 129, 132 (1947).

In Williams, it was factually uncontradicted that the sellers were not ready for settlement by the date in question. In Phaff, the sellers denied that they would not have been ready for settlement. Therefore, a court may grant specific performance if a contract specifies that “time is of the essence” even if the buyer fails to tender where it is uncontradicted that any such tender would have been a futile act. Specific performance is foreclosed as a remedy if two elements are present: (1) the buyer has not tendered by the specified date; and (2) the seller has effectively denied that such tender would have been futile. In the instant case, the sellers have not denied that they were unable to convey good title on May 2, 1983. Tender by the buyer would have been futile. Both parties realized that good title could not be exchanged at that time. Therefore, we may not allow the outcome of this case to hinge upon the buyer’s failure to tender. That failure is not an obstacle to Messina’s request for specific performance.

Accordingly, we reverse and remand for the entrance of a decree consistent with the foregoing. Jurisdiction Relinquished.

ROWLEY, J., noted dissent.


author: BROSKY, Judge:

text:
    528 A.2d 962
    Linda T. GRANT, Administratrix of the Estate of James Michael Grant, Deceased v. RIVERSIDE CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1987.
    Filed May 21, 1987.
    Reargument Denied July 31, 1987.

      Richard L. Rosenzweig, Pittsburgh, for appellant.
    Allan H. Cohen, Pittsburgh, for appellee.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   BROSKY, Judge:

This is an appeal from the denial of post-trial relief below, following a jury trial in which a verdict of $2,138,548.00 was entered in appellee’s favor. Appellant raises seven contentions:

(1) does the Pennsylvania Workmen’s Compensation Act permit the injured employee of a subcontractor to sue another subcontractor working on the same job site for tort damages?;
(2) was appellee’s expert witness permitted to testify to matters beyond his competence?;
(3) was it error for the trial court to refuse to charge the jury that assumption of the risk is a defense in products liability actions?;
(4) did appellee’s counsel make an improper “adverse inference” argument, concerning appellant’s decision not to call a witness, in his closing?;
(5) did appellee argue a theory of liability not present in the complaint?;
(6) did appellee fail to sustain her burden of proof?; and
(7) was the damage award the product of passion and sympathy?

After careful consideration of the record below and the briefs presented to this Court, we fail to find any error in the trial court’s resolution of the above-enumerated contentions, and accordingly affirm.

This suit arises from an accident which occurred on June 15, 1981, during the construction of the One Oxford Centre building in Pittsburgh. The general contractor on the project was Turner Construction Company (hereinafter “Turner”). Turner hired both Riverside Corporation (“Riverside”) and (“Reiling”) as subcontractors on the project. It was the function of Riverside, pursuant to the agreement, to install a double-well material hoist, which is, in essence, an elevator that is used to carry materials up and down during construction. Reiling, on the other hand, was to provide miscellaneous metal work, as well as skilled ironworkers, for the project. Decedent was an ironworker for Reiling.

The material hoist tower erected by Riverside was approximately seven feet away from the outside framework of the building. In order to construct platforms between the edge of the hoist car and the- side of the building, certain diagonal and horizontal braces had to be removed from the side of the hoist car facing the seven foot gap. To do this, ironworkers in the hoist car had to remove the nut attached to the bolt which kept the braces in place.

On the date of the accident, decedent was attempting to remove the braces in order to create access for the building of a platform to the twelfth floor. However, after removing the nut, the bolt holding the braces in place would not come off. Attempting to loosen them, decedent pushed on the braces, which unexpectedly sprang off the bolt in a direction going away from the decedent. Decedent lost his balance, and fell out of the car into the seven-foot gap, landing on the seventh floor. He was pronounced dead at the local hospital.

Appellee, decedent’s widow, filed suit against Riverside on theories of products liability and negligence with respect to the design and manufacture of the hoist car. Following an eight day jury trial and a verdict in appellee’s favor, post-trial motions were filed and denied. This timely appeal followed.

The trial court issued an extensive opinion which we feel adequately addresses six of the seven contentions on appeal. As such, we shall only be addressing Issue I: does the Pennsylvania Workmen’s Compensation Act preclude the employee of a subcontractor from bringing a tort action against another subcontractor on the same job site?

Initially, we must state that this would appear to be a case of first impression in Pennsylvania. While this trial court cited as conclusive authority the holding in McKenzie v. Cost Brothers, Inc., 487 Pa. 303, 409 A.2d 362 (1979), for the proposition that such suits are not barred, appellant is correct in pointing out that the McKenzie decision does not interpret, or even mention, the Workmen’s Compensation Act, or if the Act was raised as a defense by the appellant. Rather, McKenzie limits its analysis to a discussion of the duties of care owed by a possessor of land to warn invitees of known or discoverable dangerous conditions. Hence, we deem it necessary to scrutinize the Act itself, and to determine if the language of the Act is in accord with the result reached in McKenzie.

Section 303 of the Act is our starting point, as it is Section 303 that sets forth the extent to which the Act is intended to be the exclusive means of recovery for employment-related injuries:

§ 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party.
(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. (Emphasis supplied).

Clearly, then, our determination of the Act’s applicability to subcontractors shall turn upon the resolution of a key question: is a subcontractor an “employee” or “representative” of the general contractor, and thereby entitled to immunity on an equal footing with the direct employer of the aggrieved party, or a mere “third party” subject to common law tort liability?

The Act itself does not define “third party”, thereby “opening the door”, as it were, to appellant’s contention that the legislature intended the exclusivity protections of the Act to encompass all contractors and subcontractors present at the same job site. According to appellant, the statutory scheme of the Act suggests that subcontractors in the position of Riverside and Reiling should be immune from common law liability for injuries to each other’s employees on one of two theories: either (1) as “employees” or “representatives” of the general contractor, and, as such, “fellow employees” in a “common employment” pool; or (2) as subcontractors entrusted with part of the regular business of the general contractor, and, as such, afforded protection via the general contractor’s status as the “statutory employer” of both subcontractors’ employees. In support, appellant directs this Court’s attention to the compensation acts of several other jurisdictions, maintaining that they bear sufficient similarity to various provisions in the Pennsylvania Act so as to permit immunity to be extended to appellant under one or both theories. We disagree with appellant’s analysis.

With respect to appellant’s initial suggestion that we view Riverside and Reiling as “fellow employees”, we note that the suggested construction of the term “employee” is directly contrary to express legislative intent. “Employee” is defined, in Section 104, as:

“[AJll natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer, and exclusive of persons to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired, or adapted for sale in the worker’s own home, or on other premises, not under the control or management of the employer. Every executive officer of a corporation elected or appointed in accordance with the charter and by-laws of the corporation, except elected officers of the Commonwealth or any of its political subdivisions, shall be an employe of the corporation except as hereinafter provided in sections 302(c), 305 and 321.” (Emphasis supplied).

By contrast, the term “employer” is defined, at Section 103, to include:

“... natural persons, partnerships, joint-stock companies, corporations for profit, corporations not for profit, municipal corporations, the Commonwealth, and all governmental agencies created by it.” (Emphasis supplied).

Clearly, the definition of “employee” has been limited by the legislature to natural persons only. Where the words of a statute are clear and free from ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). Furthermore, the general statutory maxim, expressio unius est exclusio al-terius would appear applicable: that which is not included should be understood as excluded. Certainly, had the legislature wished to accord corporations such as Riverside and Reiling the potential status of “employees”, it was free to include in its definition of “employee”, as in its definition of “employer”, business entities such as corporations. We cannot but deem the omission to be of some significance.

Moreover, the compensation acts of other jurisdictions which hold subcontractors to be “fellow employees” are not comparable to the Pennsylvania Act, contrary to appellant’s assertions. A notable example is the Nevada Industrial Insurance Act, which is cited in appellant’s brief. The Nevada Act provides, in relevant part, at NRS § 616.085, that “(S)ubcontractors and their employees shall be deemed to be employees of the principal contractor.” The Supreme Court of Nevada has interpreted NRS § 616.085 as extending immunity to all subcontractors on the same job site, as “employees” of the principal contractor. See Cardenas Vda de Aragonez v. Taylor Steel Co., 85 Nev. 718, 462 P.2d 754 (1969). The Pennsylvania Act does not contain any such provision and, in point of fact, the Nevada Act is recognized as “uniquely different from the industrial insurance acts of other states in that ... subcontractors ... are accorded the status of employees.” Cardenas, supra.

In light of the foregoing, appellant’s initial suggestion that we construe subcontractors Riverside and Reiling to be “fellow employees” of the general contractor Turner, finds no support in the Act, and fails to persuade.

Appellant’s second theory for subcontractor immunity hinges upon Turner’s status as statutory employer of both Riverside and Reiling’s employees. Appellant contends that Riverside was entrusted with a part of Turner’s regular business through the subcontract, and, as such, should be afforded Turner’s protection. This, however, is simply not the law in Pennsylvania with respect to the concept of statutory employer immunity.

Statutory employer immunity is derived from Section 203 of the Act, which provides:

“An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.”

This provision has been construed on several previous occasions by the appellate courts of this Commonwealth to impose five requirements which must be satisfied before a contractor may claim immunity as the statutory employer of another contractor’s employees. The statutory employer relationship is established when the following conditions are present: (1) An employer who is under contract with an owner or one in the position of an owner ...; (2) Premises occupied by or under the control of such employer ...; (3) A subcontract made by such employer ...; (4) Part of the employer’s regular business entrusted to such subcontractor ...; (5) An employee of such subcontractor.

See Cranshaw Construction, Inc. v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756, 757 (1981), citing McDonald v. Levinson Steel Co., 302 Pa. 287, 295, 153 A. 424, 426 (1930).

Clearly, from a review of the above criteria, it is not mandatory that a contractor be the general contractor on a construction project to qualify as a statutory employer. A subcontractor under contract with the owner or with a contractor in the position of the owner, in sole or common control of the job premises, that subcontracts a part of its regular business to a second subcontractor, could qualify as a statutory employer of the second subcontractor’s employees. See Kieffer v. Walsh Construction Co., 140 F.Supp. 318 (E.D.Pa.1956) (subcontractor in joint control of work premises with general contractor, subcontractor hired second subcontractor; held, first subcontractor statutory employer of second subcontractor’s employee-decedent). However, the key element missing from the current situation is a vertical relationship between Riverside and Reiling. Even were we to find that Riverside was in joint control of the work premises with Turner, Riverside did not subcontract Reiling. Rather, both Riverside and Reiling were subcontracted by Turner. Hence, Riverside was not obligated, under Section 302(a) of the Act to provide compensation insurance for Reiling’s employees, and cannot now claim the right to stand in Turner’s shoes.

Appellant attempts to analogize the statutory employer provision of the Pennsylvania Act to the compensation acts of those jurisdictions which do not require a vertical relationship between subcontractors before the general contractor’s immunity is extended to all subcontractors present at the job site. Appellant proffers that the time has arrived in Pennsylvania for the immunities of our Act to be extended in like fashion. However, upon closer examination, the compensation acts of those states which have adopted this “minority” rule, are not as similar to the Pennsylvania Act as appellant would have us believe.

Two examples cited in appellant’s brief as virtually “identical” to the Pennsylvania Act are the acts of Virginia and Florida.

The Virginia Workmen’s Compensation Act provides that, once an employer provides insurance coverage for his employees, that “[while] such insurance remains in force, he [the employer] or those conducting his business shall only be liable to an employee for personal injury or death by accident to the extent and in the manner herein specified.” See Turnage v. Northern Virginia Steel Corporation, 336 F.2d 837 (4th Cir.1964), citing Va.Code § 65-99. (Emphasis supplied.) Clearly, this language is distinguishable from our Section 203, in its explicit extension of immunity to all contractors and subcontractors present at the job site and conducting the business of the injured employee’s direct employer. Section 203 contains no such blanket extension of immunity, but, rather, limits immunity by its terms to those contractors in a vertical employment relationship.

Similarly, the Florida Workmen’s Compensation Statute provides, in relevant part:

“Liability for compensation (1) Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payments to his employees of the compensation payable under §§ 440.13, 440.15 and 440.16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.” F.S. Sec. 440.10. (Emphasis supplied.)

Once again, by explicit reference, the Florida Statute places all contractors and subcontractors at a job site on an equal footing with respect to each other’s employees; all are deemed immune as “sharing the burdens of the act, either directly by the assumption of coverage for some of the employees on the job or indirectly because of the effect of compensation liabilities upon the terms of [their] subcontracts] and relations with the general contractor.” See Carter v. Sims Crane Service, Inc., 198 S.2d 25 (Fla.1967). The vertical relationship language present in Section 203 is conspicuously absent, and, in fact, negated by the provisions of F.S. § 440.10. Appellant’s attempt at analogy, once again, fails.

In Stipanovich v. Westinghouse Electric Corporation, 210 Pa.Super. 98, 231 A.2d 894, 898 (1967), Judge Hoffman stated the following with respect to the extension of statutory employer immunity:

“... very great care ... must be exercised before allowing an employer to avoid his liability at common law by asserting he is a statutory employer. Section 203 of the Workmen’s Compensation Act, which was designated to extend benefits to workers, should not be casually converted into a shield behind which negligent employers may seek refuge____”

On the basis of our foregoing analysis, we do not conclude that Section 203 was intended to blanketly eliminate the common law liability of subcontractors for the employees of other subcontractors. Until such time that either the legislature amends Section 203 to provide blanket immunity, or the Supreme Court overturns the requirements set forth in McDonald, supra, we hold that the common law liability of subcontractors, as reiterated in McKenzie, supra, has not been abrogated by the Workmen’s Compensation Act.

Judgment affirmed.

      . Turner was not joined in this lawsuit. As decedent’s "statutory employer", a concept to be discussed at greater length infra, Turner was immune from suit pursuant to the Workmen’s Compensation Act, 77 P.S. § 1, et seq. Likewise, Reiling, as decedent’s employer, was immune from suit under the Act. Id.

      . See McKenzie, supra, pp. 364-366, and the discussion therein of the Restatement of Torts, Second, Sections 343 and 384.

      . 77 P.S. § 481, as amended.

      . 77 P.S. § 22, as amended.

      . 77 P.S. § 21, as amended.

      . 77 P.S. § 52, as amended.

      . 77 P.S. § 461, as amended, which provides:
      "A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily ’ liable for the payment of such compensation has secured its payment as provided for in this act. Any contractor or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from the subcontractor primarily liable therefor____”

      . See Larson, Workmen’s Compensation Law, Vol. 2A, § 72.32 (1983).

      . It is also noteworthy that F.S. § 440.10 contains the type of “common employment” language often found in the acts of those jurisdictions which hold all subcontractors immune as “fellow employees” of the general contractor.


author: HOFFMAN, Judge:

text:
    528 A.2d 968
    COMMONWEALTH of Pennsylvania v. Luis Eogood ESPADA, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 20, 1987.
    Filed June 15, 1987.
    Reargument Denied July 31, 1987.

      James P. Kearney, Assistant Public Defender, Pittsburgh, for appellant.
    George C. Yatron, District Attorney, Reading, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for carrying a firearm without a license and owning a firearm despite being a former convict. Appellant contends that the lower court erred in denying his motion to suppress evidence because in stopping and frisking him the police violated Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We agree and, accordingly, reverse the judgment of sentence and order a new trial.

Appellant, a Hispanic male, along with three other Hispanic males, was observed by police standing on a street corner in a high crime area of Reading. Two of the four men noticed the police car approaching and fled. Appellant and the fourth man walked toward the police car. When they reached the car, the police ordered the two to stop. They obeyed the order. After the stop, police observed an object protruding from appellant’s companion’s waistband. They also saw appellant place his hand in his pocket. The police frisked appellant and seized a handgun. Appellant was arrested and charged with the above-stated weapons offenses. His pretrial motion to suppress evidence was denied, and he was convicted and sentenced to two concurrent terms of two-to-five years incarceration and a fine of $250.00. This appeal followed.

Appellant contends that the lower court erred in denying his pre-trial motion to suppress evidence. He argues that as the police officers’ reasons for stopping him were constitutionally deficient under Terry v. Ohio, supra, evidence seized pursuant to the stop should have been suppressed. We agree. In reviewing an order denying a motion to suppress evidence we must determine whether the factual findings of the lower court are supported by the evidence of record. Commonwealth v. Cavalieri, 336 Pa. Superior Ct. 252, 254-55, 485 A.2d 790, 791 (1984). In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the witnesses for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error. Id.

In limited circumstances, an individual may be stopped, briefly detained, and frisked for investigatory purposes. Commonwealth v. Prengle, 293 Pa.Superior Ct. 64, 68, 437 A.2d 992, 994 (1981). In order for such a stop to be reasonable under the fourth amendment to the United States Constitution, the police conduct must meet two separate and distinct standards. Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1879. First, the police officer must point to specific and articulable facts which warrant the initial stop. Id. This standard is met “if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot____” Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969). Such a conclusion may not be based upon an “unparticular-ized suspicion or ‘hunch’.” Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883. Second, if the reasons for the stop meet this standard and, therefore, it is deemed reasonable for fourth amendment purposes, a police officer may frisk the individual to search for weapons if “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 27, 88 S.Ct. at 1883. Again, such a belief must be based upon specific and articulable facts indicating that the person frisked is armed and dangerous. Commonwealth v. Hicks, supra 434 Pa. at 159, 253 A.2d at 279. “[Otherwise, the talismanic use of the phrase ‘for our own protection’ ... becomes meaningless.” Commonwealth v. Jackson, 359 Pa.Superior Ct. 433, 439, 519 A.2d 427, 431 (1986).

An otherwise reasonable search may be tainted by an illegal stop or arrest. See, e.g., Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Johnson, 474 Pa. 512, 379 A.2d 72 (1977); Commonwealth v. Ruckinger, 239 Pa.Superior Ct. 520, 362 A.2d 317 (1976). Because appellant’s contention questions the legality of the initial stop under Terry, our analysis must center upon the reasonableness of that stop. While information sufficient to render a stop reasonable cannot be defined to a mathematical certainty, Pennsylvania courts have identified some situations that failed to meet the Terry standard. In Commonwealth v. Hicks, supra 434 Pa. at 159, 252 A.2d at 279, our Supreme Court held that evidence that the defendant matched a general description of the perpetrator of a recently reported crime and was walking near the crime scene was not enough to justify a stop absent any suspicious behavior on the part of the defendant. In Commonwealth v. Jones, 474 Pa. 364, 374, 378 A.2d 835, 840-41 (1977), the Court held that a police officer’s admission that although the defendant’s actions aroused his suspicion, he did not suspect any criminal activity, rendered a stop unreasonable under the Terry standard. The defendant’s parking his car in a deserted parking lot late at night, absent any police suspicion that a crime had occurred, was insufficient to justify a Terry stop in Commonwealth v. Greber, 478 Pa. 63, 68, 385 A.2d 1313, 1316 (1978).

The Superior Court has made similar determinations. Judge Brosky, writing for a panel of the Court in Commonwealth v. Marcelonis, 284 Pa.Superior Ct. 46, 49, 424 A.2d 1384, 1386 (1981), held that evidence that the defendant was walking in an area where police believed someone had thrown an object at their car did not justify a Terry stop without any irregular behavior by the defendant. In Commonwealth v. Williams, 287 Pa.Superior Ct. 19, 28, 429 A.2d 698, 703 (1981), we held that the defendant’s presence at a late hour in an area where burglaries had been known to occur did not justify a Terry stop where police had no information that a crime had occurred, and the defendant had not acted in a suspicious manner. A police officer’s receipt of an unsubstantiated tip that bicycles were being stolen in a neighborhood and his sighting of the defendant riding a bicycle in the area was held to be insufficient to render a stop reasonable under Terry in Commonwealth v. Williams, 298 Pa.Superior Ct. 466, 471, 444 A.2d 1278, 1280 (1982). In Commonwealth v. Lagana, 356 Pa.Superior Ct. 132, 135-37, 514 A.2d 179, 181-82 (1986), Judge Montemuro, writing for the Court, held that an unsubstantiated tip constituted unreasonable grounds for a Terry stop where the description of the perpetrator was overly general and there was no information linking the defendant with any illegal or suspicious activity. In Commonwealth v. Jackson, supra, 359 Pa.Superior Ct. at 439-40, 519 A.2d at 431, we held that a police officer’s sighting of the defendant running toward the direction of a recently reported crime late at night carrying a gym bag was insufficient to justify a stop under Terry.

These cases teach that in order for a stop to be reasonable, and therefore legal, under Terry v. Ohio, supra, the police officer’s reasonable and articulable belief that criminal activity was afoot must be linked with his observation of suspicious or irregular behavior on behalf of the particular defendant stopped. Mere presence near a high crime area, Commonwealth v. Williams, 287 Pa.Superior Ct. at 19, 429 A.2d at 703, or in the vicinity of a recently reported crime, Commonwealth v. Hicks, supra; Commonwealth v. Jackson, supra, does not justify a stop under Terry. Conversely, an officer’s observation of irregular behavior without a concurrent belief that crime is afoot also renders a stop unreasonable. Commonwealth v. Jones, supra.

Here, the police officers’ testimony at the suppression hearing revealed that they had no suspicion that criminal activity was afoot prior to stopping appellant, nor did they observe any unusual behavior by appellant until after the stop occurred:

Q. [Defense counsel] Why did you call to them?
A. [Arresting officer] Why did I call to them? I wanted to find out who they were.
Q. Had they done anything up to that point—
A. No.
Q. —to be considered illegal that you know of?
A. Not that I know of at that point, no.
Q. But you just called to them, asked them to stop? A. Yes.
Q. Why?
A. I think I testified to the fact we had three shootings there, 75 drug arrests, numerous complaints from the neighbors, drugs bought and sold on a regular basis at that location. I keep very close tabs on who frequents that area.
Q. Was [appellant] ever arrested for any of those things?
A. I have no idea, sir.
Q. [his companion]?
A. I have no idea if they were arrested at that location before.
Q. So you stopped them just because they were standing there on the street?
A. Yes. To find out what their intentions were there.

N.T. March 12, 1986 at 17. Additionally, the police officers testified that appellant walked toward the police car after he sighted them. N.T. March 12, 1986 at 7. This cannot be construed as suspicious behavior.

Despite the testimony of the police officers, the lower court found that “the police officers, upon initially observing the unusual and suspicious conduct of defendant in a high crime area, reasonably believed that criminal activity was afoot, and upon further observing the conduct of defendant when confronted by police, reasonably believed that defendant was armed and dangerous.” Lower Court Opinion, December 29, 1986 at 9. This finding was in error. Indeed, appellant’s only suspicious act, reaching into his pocket, occurred after he was stopped by police. N.T. March 12, 1986 at 17-18. Such a subsequent observation cannot provide grounds for the antecedent Terry stop. Terry v. Ohio, supra, 392 U.S. at 17, 88 S.Ct. at 1877. In sum, it appears that appellant was stopped simply due to his presence in a high crime area. The fourth amendment, however, protects people, not places, Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), and its protections extend to people walking on the public streets. Terry v. Ohio, supra 392 U.S. at 9, 88 S.Ct. at 1873. We are sympathetic to the need for rigorous police investigation in light of the often dangerous conditions existing in our cities. We cannot, however, tolerate police conduct which, in effect, “declare[s] that in the administration of the criminal law the end justifies the means.” Olmstead v. United States, 211 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1927) (BRANDEIS, J., dissenting).

We, therefore, hold that the lower court erred in concluding that the police stop of appellant was legal pursuant to the standard of Terry v. Ohio, supra. Because this stop violated the fourth amendment to the United States Constitution, evidence seized pursuant to it must be suppressed. Id. 392 U.S. at 29, 88 S.Ct. at 1883. Accordingly, we reverse the judgment of sentence and order a new trial.

Reversed. New trial ordered. Jurisdiction is relinquished.

       Appellant also contends that the evidence was insufficient to support the verdict and that the verdict was contrary to the law. After a careful review of the record and the briefs submitted by the Commonwealth and appellant, we conclude that the lower - court properly deemed these issues to be without merit.


text:
    528 A.2d 971
    Frances C. HACKETT, Individually and as Executrix of the Estate of Catherine A. Cook, Appellant v. UNITED AIRLINES and William R. May Funeral Home, Inc.
    Superior Court of Pennsylvania.
    Argued March 26, 1987.
    Filed July 13, 1987.

      Joseph L. Foley, Glenside, for appellant.
    Jonathan S. Ziss, Philadelphia, for United Airlines, appel-lee.
    William B. Brooks, Norristown, for William F. May, ap-pellee.
    Before CAVANAUGH, BROSKY and TAMILIA, JJ.
   BROSKY, Judge:

This is an appeal from an order sustaining preliminary objections, in the nature of a demurrer, to appellant’s complaint. Appellant’s sole contention on appeal is that the trial court misread and misapplied Pennsylvania law when it found that appellant’s complaint failed to state a cause of action. Upon review of the relevant pleadings and the arguments of counsel, we now affirm.

Appellant is Frances C. Hackett, who brought suit in Montgomery County in her individual capacity and in her representative capacity as the daughter of Catherine A. Cook, whose remains are the subject matter of this litigation. Appellant retained the services of appellee William R. May Funeral Home, Inc., to arrange shipment of her mother’s remains to a chapel in San Francisco, California, for services and burial. Appellee May assured appellant that a bronze casket, in lieu of a shipping crate, would provide adequate protection for the body during transport, and, as a result, appellant purchased a bronze casket.

The shipment was handled by appellee United Airlines. Upon arrival of the casket in California, it was discovered that the casket had sustained numerous dents during the trip, severely damaging both the casket and the body of appellant’s mother. Appellant is alleged to have suffered great mental anguish, humiliation, and embarrassment at the funeral, as the damaged condition of the casket was evident during the services. Appellant is further alleged to have required medical treatment for an emotional state brought about by these events, which it is contended will continue for an indefinite period of time.

Appellant filed suit against appellees, claiming that their careless preparation of her mother’s body for shipment, and mishandling of the casket during shipment, inflicted emotional distress upon appellant, entitling her to recover damages in excess of fifty thousand dollars ($50,000.00). Both appellees filed preliminary objections, contending that appellant’s complaint stated a cause of action for negligent infliction of emotional distress, and that such actions are not recognized in Pennsylvania under the circumstances set forth in the complaint. The trial court sustained the preliminary objections of both appellees, and dismissed the complaint. This timely appeal followed.

At the outset, prior to our analysis of the legal issues presented, we are compelled to note that the decision we reach today has been a difficult and disturbing decision to make. We cannot help but express our considerable sympathy for the sufferings of appellant. She has, undoubtedly, undergone a traumatic and shocking experience according to the facts as alleged. We share in her anguish and outrage as to the careless and thoughtless manner in which her mother’s remains were handled by appellees. The result we reach is one that we are constrained to reach by the laws of this Commonwealth, and does not reflect any insensitivity on our part to appellant’s tragic situation.

Turning then to the legal issues sub judice, appellant contends that the trial court misinterpreted Pennsylvania law in the area of infliction of emotional distress, and in support thereof, presents a twofold argument.

Appellant contends: (1) that the case of Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970), does not limit recovery for emotional distress to intentional or wanton mishandling of dead bodies, but permits recovery where the mishandling has been merely negligent; and (2) that the Sinn v. Burd, 486 Pa. 149, 404 A.2d 672 (1979), limitations upon recovery for negligent infliction of emotional distress do not apply to cases involving mishandling of the dead. It is appellant, however, who has misinterpreted the law in both instances.

In Papieves, supra, the Supreme Court was faced with an unusual factual scenario. The parents of a fourteen year old boy, who had been fatally injured when struck by an automobile, sued the driver, and a friend of said driver, for intentionally concealing the dead boy’s body after the accident by burying it in a shallow grave, where it was later discovered. The complaint was originally dismissed on the basis that damages for infliction of emotional distress were not recoverable under such circumstances pursuant to Pennsylvania law. The Supreme Court held the dismissal to be error, and expressly adopted the Restatement of Torts (1939) rule of recovery for emotional distress, as set forth in Section 868:

A person who wantonly mistreats the body of a dead person or who without privilege intentionally removes, withholds or operates upon the dead body is liable to the member of the family of such person who is entitled to the disposition of the body. (Emphasis supplied.)

The Supreme Court took note of the comments to § 868, which indicate that the cause of action provided is essentially one for “mental suffering caused by the improper dealing with the body”, and held that a decedent’s relatives are entitled to “protection against intentional, outrageous or wanton conduct which is peculiarly calculated to cause them serious mental or emotional distress.” Papieves, supra, at p. 121.

Appellant now contends that the Supreme Court’s adoption of the first Restatement’s rule of recovery for mental distress in connection with mistreatment of the dead, permits this Court to now extend that rule of recovery to allow a cause of action for negligent infliction of emotional distress through negligent or careless mistreatment of the. dead, as provided for in the 1977 revision of Section 868 in the Restatement (Second) of Torts, which reads as follows:

One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the ceased who is entitled to the disposition of the body. (Emphasis supplied.)

Appellant’s position, however, not only involves an overly expansive reading of Papieves, but blatantly ignores the express language contained therein. Papieves, as noted above, expressly limits the provided cause of action to infliction of distress through intentional, outrageous, or wanton behavior calculated to bring about such distress. There is no indication whatsoever in the opinion that the Court intended to blanketly sanction any extension of the provided cause of action in accordance with future revisions of, or additions to, Section 868 in later Restatements. As such, we do not feel that the construction of Papieves suggested by appellant involves a mere natural and logical extension of the Court’s decision to adopt Section 868 of the first Restatement. Rather, we hold that any extension of the Papieves rule of recovery to include actions for negligent infliction of emotional distress, must come from the Supreme Court itself, through express adoption of the 1977 Restatement (Second) revision of Section 868.

Furthermore, were we, arguendo, to conclude that the Papieves rule of recovery does not bar causes of action for negligent mishandling of the dead, we would nonetheless be forced to resolve this matter in appellees’ favor due to the inherent fallacies in appellant’s second argument: that the Sinn v. Burd limitations upon recovery for negligent infliction of distress are inapplicable to cases involving mistreatment of dead bodies. Appellant again relies upon Papieves, wherein the Supreme Court rejected the impact rule as inapplicable to the factual setting therein. Appellant now argues that the Supreme Court intended to preclude any consideration of the impact rule, and its progeny, from any and all actions involving mishandling of the dead, thereby precluding, in the case sub judice, application of Sinn v. Burd. Once again, appellant has misconstrued Papieves.

The Papieves Court addressed the viability of the impact rule, and its application to the facts before it, as follows, at pp. 121-22:

(T)he impact rule, to the extent that it remains a viable rule of law in Pennsylvania, is inapplicable in the case now before us. As it was applied in this Commonwealth, the rule limited the scope of duty imposed upon an actor who by his negligence had imperiled the plaintiff; the rule precluded a plaintiff’s recovery of damages for the negligently inflicted consequences of fright, shock or emotional disturbance absent some contemporary physical impact with, or some physical injury to, the plaintiff. At issue in the present case is the right to recover for emotional distress which — so it is alleged — has directly resulted from defendants’ intentional or wanton misconduct. Invocation of the impact rule is no more meaningful in this instance than it would have been in the areas of libel or invasion of privacy where recovery is permitted for mental or emotional distress without regard to the presence of “impact”. (Citations omitted.) (Emphasis supplied.)

Clearly, then, the Supreme Court’s rejection of the impact rule in Papieves did not hinge upon the fact that the cause of action before it involved the mishandling of the dead, but upon the fact that an intentional tort was being alleged. The impact rule, and its modifications, only apply to negligence actions. As such, Papieves supports, not precludes, the application of the impact rule and its later case law refinements, such as Sinn, to the cause of action alleged in appellant’s complaint.

Turning, then, to the limitations placed upon causes of action for negligent infliction of emotional distress, we are constrained to conclude that appellant’s claim is barred by Sinn.

In Sinn, the Supreme Court adopted the three-part test of Dillon v. Legg, 28 Cal.2d 728, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920 (1968) to determine a negligent tortfeasor’s liability for infliction of distress. In order to set forth a viable cause of action for negligent infliction of distress, one of three situations must be present:

(1) the claimant must have been located near the scene of the accident as contrasted with one who was a distance away (this is better known as the “zone of danger” test);
(2) the shock to the claimant must have resulted from the sensory and contemporaneous observance of the accident in question, as contrasted with learning of the accident after its occurrence; or
(3) the claimant must have been closely related to the victim, as contrasted with the absence of a relationship, or the presence of a distant relationship.

Arguably, the third Sinn category is applicable here. However, Pennsylvania has been reluctant to permit recovery pursuant to category (3) where the claimant did not witness the negligent act causing injury to the loved one.

In Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981), the claimant father had not witnessed his son’s accident, but had proceeded to the hospital upon learning of his son’s whereabouts. The Supreme Court was equally divided on the question of whether the father was entitled, under Sinn, to recover for emotional distress when he had not witnessed the precipitating negligent event.

In the later decision of Brooks v. Decker, 343 Pa.Super. 497, 495 A.2d 575 (1985), our Court sustained an order dismissing a complaint for distress, as the claimant parent had not witnessed his child’s accident. At that time, we stated:

If, as appellant contends, the law should now be changed to include such a cause of action, that change must come from the Supreme Court. Brooks, supra, at p. 576.

We reiterate today our position that the extension in the law sought by appellant properly lies with the Supreme Court. Case law to date has only permitted recovery for negligent infliction of distress, under category (3) in Sinn, where the claimant has actually witnessed the negligent infliction of harm. Until such time that the Supreme Court chooses to extend recovery as now requested by appellant, we are constrained from extending recovery under the facts sub judice.

In summary, then, we now hold the following:

(1) the Papieves doctrine, concerning distress inflicted through mistreatment of the dead, does not permit a cause of action where the mistreatment is merely negligent, as opposed to intentional or wanton;

(2) should the Supreme Court choose to extend the Pa-pieves doctrine to include negligent mishandling, the Court must additionally specify whether the current interpretation of Sinn, as precluding recovery where the claimant has not witnessed the negligent act, will preclude a cause of action in which the negligent harm to the deceased has not been witnessed by the loved one.

In light of the above, we must now hold, despite our obvious sympathy for the grief endured by appellant, that appellant’s complaint was properly dismissed.

Order affirmed.

CAVANAUGH, J., concurs in the result.

      . Papieves, supra, at p. 120, citing Restatement of Torts (1939), § 868, Comments (a) and (b).

      . This test was initially established in Pennsylvania by the decision in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), in which the Supreme Court extended causes of actions for negligent infliction of distress to situations in which the claimant received no physical impact, but was within the "zone of danger”, and, as such, in fear of physical impact.


text:
    528 A.2d 975
    COMMONWEALTH of Pennsylvania v. Brandon Lee LYONS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed July 7, 1987.

      Bruce L. Getsinger, Erie, for appellant.
    Tim Lucas, Assistant District Attorney, Erie, for Com., appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

After a trial by jury, appellant was convicted of one count each of statutory rape, 18 Pa.C.S. § 3122, involuntary deviate sexual intercourse, 18 Pa.C.S. § 3123, and corruption of minors, 18 Pa.C.S. § 6301. On December 16, 1985, the trial court denied appellant’s timely post-trial motions and subsequently sentenced him to five (5) to ten (10) years imprisonment for the involuntary deviate sexual intercourse conviction, a concurrent term of ten (10) years probation for the statutory rape conviction, and a concurrent term of five (5) years probation for the corruption of minors conviction, plus the costs of prosecution. Appellant filed a motion to reconsider and modify sentence, which was denied by Order dated April 8, 1986. A timely appeal to this Court was taken on April 11, 1986.

Briefly stated, the facts are as follows. Appellant’s convictions were the result of an incident occurring at his home on May 21, 1985. The victim, Rahdia Henderson, was twelve years old at the time and appellant eighteen years old. According to testimony at trial, the victim had skipped school that day and went to the home of one Tyrone Martin, where she had a telephone conversation with appellant, after which she went to appellant’s house. At appellant’s home, appellant and Rahdia engaged in sexual intercourse and oral sex. Rahdia left appellant’s home during the afternoon. The next day, on May 22, 1985, Rahdia’s grandmother was informed that she had been skipping school. When confronted by the grandmother, Rahdia told her that she had had intercourse with appellant, whereupon, the grandmother immediately took Rahdia to the hospital and notified the police. Appellant’s principal defense at trial is that he never had any sexual activity with Rahdia.

Appellant’s first claim on appeal is that the trial court erred in refusing to allow appellant’s trial counsel to question the victim concerning her alleged sexual conduct on the day after the incident in question. In order for appellant to be allowed such cross-examination, he must fall within the exception detailed in the Pennsylvania Rape Shield Law, 18 Pa.C.S. § 3104(a), which provides as follows:

(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

Since appellant was charged and convicted of statutory rape, the victim’s consent is not at issue here. However, appellant argues that the victim’s past sexual conduct should still be admissible to explain certain evidence which had been entered by the Commonwealth.

Specifically, the Commonwealth had a state police criminologist, Bruce Tackett, testify as to the existence or nonex-istance of physical evidence, such as vaginal smears, pubic combings, etc., to prove the victim did have oral or vaginal intercourse with appellant. Although Mr. Tackett testified he could not draw any conclusion from the evidence given to him, during the course of his testimony he disclosed that there was the presence of blood in the victim’s panties. Appellant contends the presence of blood might be viewed by the jury as an objective sign of intercourse and rebuttal evidence, in the form of examination concerning the victim’s past sexual conduct, should be admissible to show that the victim could have had intercourse prior to or after the incident in question, thus explaining how the blood came to be there. In support of this argument, appellant relies on the Pennsylvania Supreme Court case of Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983).

In Majorana, supra, the defendant sought to introduce evidence of a sexual encounter between the victim and himself two hours before the victim was allegedly raped. Defendant’s counsel stated that the purpose of the evidence was not offered to attack the victim’s chastity but to explain the presence of semen in the victim’s body. In ruling that the evidence should have been admitted, the Supreme Court stated:

We do not believe the legislature intended to prohibit relevant evidence which directly negates the act of intercourse with which a defendant is charged. Where, as here, a defendant offers evidence of intercourse close enough in time to that act with which he is charged that it is relevant to explain the presence of objective signs of intercourse, the protections afforded to the complainant by the Rape Shield Law do not apply. Such evidence should be admitted, subject to the usual rules of admissibility of evidence, in particular the balancing of probative value against prejudicial effect.
Such an interpretation is consistent with the goals of the Rape Shield Law in protecting the victim’s reputation and does not deny the defendant’s right to introduce relevant evidence in his own defense. Cases where consent is genuinely ‘at issue’ are treated according to the exception set forth in the statute. However, in cases such as that which we have here, where denial of the act, not consent is at issue, evidence of consensual intercourse between defendant and complainant is limited to evidence of an act close enough in time to account for the objective signs of intercourse and is further limited to the purpose of explaining the presence of those objective signs. However, a defendant cannot engage in the wide-ranging and harassing cross examination the statute legitimately prohibits.
Thus, the Rape Shield Law does not preclude appellant from explaining the presence of semen and sperm in the victim’s body. The act offered in explanation was not a prior ‘separate incident’ but an alternative account of the events of that evening offered to counter the prosecution’s medical testimony. For that limited purpose it was admissible. To hold otherwise would deny appellant the chance to defend by presenting a denial of the prosecution’s case.

Id., 503 Pa. at 611, 470 A.2d at 84-5; see Commonwealth v. Jorgenson, 512 Pa. 601, 517 A.2d 1287 (1986) (interpreting Majorana).

We find Majorana applicable to the present circumstances. The fact that appellant was charged and convicted of statutory rape, which crime does not involve the consent on the part of the victim, does not preclude the introduction of evidence that another person besides the defendant is responsible for the objective evidence introduced by the Commonwealth to infer that the rape was committed.

The Commonwealth claims that the Majorana test does not apply here because the evidence produced by the state police did not establish that appellant, or anyone, had intercourse with the child. To preclude the possible inference to the jury that the blood on the panties was caused by intercourse, it should not have been admitted as evidence, particularly when the investigator could draw no conclusions from it. Had there been no introduction of the blood-spotted panties, there would have been no need for explanation of its presence. Since the only theory presented to explain the blood was intercourse with the defendant, he was seriously prejudiced when he was precluded from showing there was a plausible, contemporaneous alternate explanation for that evidence by way of intercourse with a third party the day before or after. Arguments are made by the Commonwealth that intercourse the day before or after is too remote. This misses the point which is whether the blood-stained panties arrived in that condition by contact with a third party, although not discovered until after the alleged intercourse with the defendant. Nothing in the record establishes when the panties were worn or for how long. Under such conditions, neither consent nor reputation is the issue, but rather, causal connection. Defendant denies intercourse with the child, the blood is a possible indication that intercourse occurred at about that time; therefore, it is permissible, under Majorana, to provide an alternate explanation for the presence of the blood.

Admission of the evidence of the blood-spotted panties made relevant the question of how the blood got there. Unless its presence was clearly restricted to the time when the defendant alone could reasonably be considered to have been involved in its production (which the record fails to show), it becomes an issue in the case.

Since we have concluded that the admission of the panties was prejudicial and the denial of the right to cross-examine as to alternate sources of sexual contact was error, we need not consider the claims of ineffectiveness of counsel.

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

Jurisdiction relinquished.

      . Appellant was represented by his trial counsel throughout all post-trial motions; however, on appeal, appellant is represented by new counsel.

      . Since Rahdia’s clothing was not taken from her until the day after the incident, appellant contends sexual activity on that day would be relevant.


author: WIEAND, Judge:

text:
    528 A.2d 978
    COMMONWEALTH of Pennsylvania, Appellee, v. Brett Wess SWEETING, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1987.
    Filed July 16, 1987.

      Peter T. Campana, Williamsport, for appellant.
    Robert L. Miller, Jr., Assistant District Attorney, Willow Grove, for Com.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a person who intended to possess and sell a controlled substance, who believed he was possessing and selling a controlled substance, and who in fact possessed and sold a controlled substance is entitled to be acquitted on charges of knowingly possessing and possessing with intent to deliver a controlled substance because he was mistaken about the precise chemical nature of the controlled substance.

In November, 1984, Brett W. Sweeting sold a small quantity of methamphetamine to Ranee Morey, an undercover state trooper, in Lycoming County. On December 5, 1984, Sweeting met Morey in the parking lot of the bus station in State College, Centre County, where he sold to Morey one ounce of a white powder, which Sweeting represented to be methamphetamine, for one thousand ($1,000.00) dollars. When the white powder was later analyzed, it was found to contain 26.5 grams of meperidine, also known as pethidine, a Schedule II controlled narcotic substance. A third meeting between the two men occurred on December 28, 1984 in Lycoming County. The white substance delivered on this final occasion was found not to contain any controlled substance.

Sweeting was arrested and charged in Centre County with possession and possession with intent to deliver meper-idine, a Schedule II controlled narcotic substance, as a result of the incident of December 5, 1984. At trial, Sweet-ing’s defense was that he did not know that the white powder delivered to Morey had contained meperidine. Although Sweeting conceded that he had told Morey that the substance contained methamphetamine, the defense argued that Sweeting had attempted to defraud Morey by selling to him a white powder which Sweeting believed to contain no controlled substance. The trial court, which heard the case without a jury, found Sweeting guilty as charged. A motion in arrest of judgment was denied, and a sentence of imprisonment was imposed. On direct appeal, Sweeting contends that the evidence was insufficient because the Commonwealth failed to prove his knowledge that the powder sold to Morey contained meperidine. We reject this argument and affirm the judgment of sentence.

The test to be applied in determining the sufficiency of the evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom in favor of the Commonwealth, there was sufficient evidence to enable the trier of fact to find each and every element of the offense beyond a reasonable doubt. Commonwealth v. Kichline, 468 Pa. 265, 271, 361 A.2d 282, 285-286 (1976). See also: Commonwealth v. Sneed, 514 Pa. 597, 601-602, 526 A.2d 749, 751 (1987).

In the instant case, the court could find from the evidence that Sweeting believed he had methamphetamine in his possession and intended to sell methamphetamine to Trooper Morey. This was consistent with what Sweeting had told Morey at the time of the sale. In fact, however, Sweeting had been mistaken. The substance which he had had in his possession and which he had sold to Trooper Morey was meperidine. Although Sweeting testified that he had believed the powder in his possession to contain neither methamphetamine nor meperidine, the trial court could accept or reject this explanation. Sweeting had himself told Morey at the time of the sale that the powdery substance contained methamphetamine, and he had demanded and received from Morey a price appropriate for methamphetamine. The trial court, therefore, could find that Sweeting had believed that the substance which he had sold to Morey was methamphetamine.

The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(16) and (30), as amended, 35 P.S. § 780-113(a)(16) and (30) makes it criminal to “knowingly” possess/possess with intent to deliver a controlled substance. Inasmuch as the legislature has made guilty knowledge an ingredient of the offense, appellant argues, he can be convicted of a violation only if he had knowledge of the precise nature of the controlled substance.

Counsel has not been able to produce a prior decision in which the same issue has been decided by a Pennsylvania appellate court, and our own research has disclosed none. Under slightly different circumstances, however, the California Court of Appeals said:

A person who intends to possess a controlled substance, believes he possesses a controlled substance, and in fact possesses a controlled substance is guilty of [possession of a controlled substance]. The only knowledge that is required to sustain the conviction is knowledge of the controlled nature of the substance. The defendant need not know the chemical name or the precise chemical nature of the substance. Any more stringent rule as to knowledge would, for all practical purposes, make the statute inapplicable to anyone who had not personally performed a chemcial [sic] analysis of the contraband in his possession.

People v. Garringer, 48 Cal.App.3d 827, 835, 121 Cal.Rptr. 922, 927 (1975) (citation omitted). See also: People v. Guy, 107 Cal.App.3d 593, 600-601, 165 Cal.Rptr. 463, 467-468 (1980); Weaver v. State, 145 Ga.App. 194, 196-97, 243 S.E.2d 560, 562 (1978).

We conclude that this analysis is equally applicable to and determinative of the instant case. Although the statute in Pennsylvania makes criminal knowledge a necessary ingredient of the offense, it is not necessary to show that the defendant knew the precise chemical nature of the controlled substance. In the instant case, the Commonwealth’s evidence showed that appellant intended to possess a controlled substance, believed he possessed a controlled substance, and in fact possessed and sold a controlled substance. This was enough to demonstrate the guilty knowledge required by the statute. The possession and sale were criminal notwithstanding appellant’s mistaken belief about the precise chemical nature of the substance.

The judgment of sentence is affirmed.

      . This Court addressed a similar issue on two prior occasions and held on both occasions that specific knowledge of the controlled substance or narcotic was not an essential element of the offenses of possession and possession with intent to deliver. See: Commonwealth v. Yaple, 217 Pa.Super. 232, 273 A.2d 346 (1970); Commonwealth v. Gorodetsky, 178 Pa.Super. 467, 115 A.2d 760 (1955). These cases, however, were decided on the basis of earlier statutes which contained language different than the present statute, which proscribes knowingly possessing a controlled substance.


author: ROWLEY, Judge:

text:
    528 A.2d 980
    COMMONWEALTH of Pennsylvania v. Russell WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 11, 1987.
    Filed July 13, 1987.

      Judith A. Calkin, Harrisburg, for appellant.
    Todd B. Narvol, Assistant District Attorney, Harrisburg, for Com., appellee.

      Before CAVANAUGH, ROWLEY and MONTGOMERY, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Appellant was convicted of third degree murder following a jury trial and was sentenced to nine to twenty years imprisonment. A direct appeal was taken to the Superior Court which affirmed the judgment of sentence on December 30, 1983. (No. 291 Harrisburg, 1982). A petition for allowance of appeal to the Pennsylvania Supreme Court was denied on February 21, 1985. (No. 39 M.D. Allocatur 1984). Appellant then filed a petition for Writ of Habeas Corpus in the United States District Court, but the petition was denied. The Third Circuit Court of Appeals denied certification to appeal the District Court’s order. Thereafter, appellant filed a Post Conviction Hearing Act petition and counsel was appointed. The PCHA petition was denied without a hearing. The instant appeal is from the denial of the PCHA petition. We affirm.

Appellant raises three issues on appeal: 1) whether trial counsel was ineffective for failing to object when the Commonwealth struck all the black veniremen from the jury panel; 2) whether trial counsel was ineffective for failing to object to the Commonwealth’s plea of surprise; and 3) whether trial counsel was ineffective for failing to insist that the court make a definitive ruling concerning the admissibility of a testimonial reference to a polygraph. The second and third issues have been adequately discussed and correctly decided by the trial court. Therefore, we do not address them. The first issue raised by appellant, however, is one of first impression in the appellate courts of this Commonwealth.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court re-examined the rule first established in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) concerning the evidentiary burden of one who claims that the government’s use of peremptory challenges was racially discriminatory. In Swain, the Court held that there was a presumption that the prosecution properly exercised his peremptory challenges, and that to rebut the presumption, the defendant had to prove a pattern in numerous cases of the prosecution’s use of peremptory challenges to strike veniremen of a particular race. However, in Batson, the Court changed this rule and held that to make out a prima facie case of intentional discrimination in jury selection, the defendant must establish that he is a member of a cognizable racial group and that the prosecution used peremptory challenges to remove from the venire members of the defendant’s race. The defendant can then rely on the presumption that peremptory challenges to veniremen permit discrimination by those inclined to do so, and thereby establish that the facts and relevant circumstances raise the inference in his case that the prosecutor used the peremptory challenges to discriminate intentionally. Id., at —, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. The Supreme Court’s ruling in Batson has been held to apply retroactively in Pennsylvania to all cases pending on direct appeal from convictions which were not final when Batson was decided. Commonwealth v. McCormick, 359 Pa.Super. 461, 519 A.2d 442 (1986). Appellant argues that we should extend the retroactivity holding of McCormick to apply even to collateral review of a conviction which was final when Batson was decided.

In Allen v. Hardy, — U.S. —, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) which was decided after Batson but before McCormick, the U.S. Supreme Court held that Bat-son does not apply retroactively to collateral review of convictions that became final before Batson was announced. In McCormick we did not follow Allen in part because Allen addressed the question of retroactive application of Batson to final convictions whereas McCormick involved only the issue of retroactive application of Batson to cases not yet final when Batson was announced. We also did not follow Allen because the United States Supreme Court’s decisions on retroactivity are not binding on a state court, Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982), and because we disagreed with some of the conclusions reached in Allen. McCormick, Id., 359 Pa.Superior Ct. at 470, 519 A.2d at 447. However, we are in accord with the United States Supreme Court’s analysis in Allen regarding the effect on the administration of justice of retroactive application of Batson to collateral review of final convictions.

In Allen, the Supreme Court stated:

Retroactive application would require trial courts to hold hearings, often years after the conviction became final, to determine whether the defendant’s proof concerning the prosecutor’s exercise of challenges established a prima facie case of discrimination. Where a defendant made out a prima facie case, the court then would be required to ask the prosecutor to explain his reasons for the challenges, a task that would be impossible in virtually every case since the prosecutor, relying on Swain, would have had no reason to think such an explanation would someday be necessary. Many final convictions therefore would be vacated, with retrial “hampered by problems of lost evidence, faulty memory, and missing witnesses.” Solem v. Stumes, supra, 465 U.S. [638], at 650, 104 S.Ct. [1338], at 1345 [79 L.Ed.2d 579]; see also Linkletter v. Walker, 381 U.S. [618], at 637, 85 S.Ct. [1731], at 1742 [14 L.Ed.2d 601].

Allen, Id., at —, 106 S.Ct. at 2881, 92 L.Ed.2d at 205. These problems enunciated by the Supreme Court as resulting from the passage of time between final conviction and collateral review of the conviction distinguish those cases raising the Batson issue in a case not yet final when Batson was decided, and those raising the issue only upon collateral review of the conviction. The detrimental impact on the administration of justice warrants denying retroactive application of Batson to cases raising the issue only on collateral review of the final conviction. Therefore, we are inclined to follow the Supreme Court’s decision in Allen and preclude application of Batson to collateral review of convictions which were final when Batson was decided.

However, regardless of whether Batson is applicable to cases on collateral review of convictions which were final when Batson was decided, appellant has failed to demonstrate that he is eligible for collateral relief.

To be eligible for relief'under the PCHA, a person must demonstrate that the error resulting in his conviction and sentence has not been finally litigated or waived. 42 Pa.C.S. § 9543(4). An issue has been finally litigated if:

(1) It has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner has knowingly and understanding^ failed to appeal the trial court’s ruling.
(2) The Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals.
(3) The Supreme Court has ruled on the merits of the issue.

42 Pa.C.S. § 9544(a). An issue has been waived if:

(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.

42 Pa.C.S. § 9544(b). The ineffectiveness of counsel in failing to raise an issue constitutes extraordinary circumstances. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982).

In the case presently before us, the issue of the use of peremptory challenges has been raised for the first time in appellant’s PCHA petition. Thus appellant will be eligible for relief only if he can demonstrate that his counsel was ineffective for failing to raise the Batson issue. Although appellant argues that his trial counsel was ineffective for failing to raise the Batson issue, despite appellant’s requests that counsel raise the issue, we will not find counsel to have been ineffective for failing to anticipate the new rule announced in Batson. The Pennsylvania Supreme Court has stated that “counsel will not be deemed ineffective for failing to predict future developments in the law,” Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977), and that counsel is not expected to predict that the law will be changed. Commonwealth v. Garrity, 509 Pa. 46, 55, 500 A.2d 1106, 1111 (1985). Thus appellant has failed to demonstrate that he is eligible for relief under the PCHA.

Because appellant has failed to show that he is eligible for relief on collateral review of his final conviction, and because there are compelling reasons not to apply the Supreme Court’s decision in Batson to collateral review of convictions which were final when Batson was decided, we affirm the trial court’s order.

Order Affirmed.

      . 42 Pa.C.S. § 9541 et seq. Hereafter, PCHA.


text:
    528 A.2d 983
    COMMONWEALTH of Pennsylvania, Appellant, v. Ronald BYNG
    Superior Court of Pennsylvania.
    Argued May 20, 1987.
    Filed July 21, 1987.

      Alan Sacks, Assistant District Attorney, Philadelphia, for Com., appellant.
    James R. Rosato, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is a Commonwealth appeal from the order below granting appellee a new trial. The Commonwealth contends that the lower court erred in determining that appel-lee’s waiver of his right to a jury trial was involuntary, and thus should not have granted a new trial. For the reasons that follow, we reverse the order below, reinstate the verdict, and remand for sentencing.

Appellee was arrested in connection with a break-in and assault at his wife’s house. He subsequently requested a non-jury trial. A lengthy jury waiver colloquy was conducted. During the colloquy, the court advised appellee of the potential maximum sentences he could receive. The court then granted appellee’s request. Following his trial, the court found appellee guilty of simple assault, recklessly endangering another person, and criminal trespass as felonies of the second and third degree. Appellee objected to the entering of the verdict, alleging that the jury waiver was defective, and filed a motion for a new trial. In his motion, appellee argued that his waiver of his right to a jury trial was involuntary because the court, during the waiver colloquy, failed to state the maximum sentence he could receive if he were convicted of criminal trespass as a felony of the second degree. After oral argument, the lower court noted that it had misrepresented the sentence with regard to that charge, and granted the motion. This appeal followed.

The Commonwealth contends that the lower court erred in determining that appellee’s jury waiver was involuntary simply because the lower court failed to state the maximum sentence appellee could receive if he were convicted of criminal trespass as a felony of the second degree. The right to a jury trial for non-petty criminal offenses is a fundamental principle of American law. U.S. Const, amend. VI; Pa. Const, art. I, §§ 6, 9; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). A criminal defendant may waive his or her right to a jury trial, however, provided that the waiver is knowing and intelligent. Pa.R.Crim.P. 1101. See also Commonwealth v. Hines, 496 Pa. 555, 559-60, 437 A.2d 1180, 1182 (1981) (to be effective, waiver of any constitutional right must be knowing and intelligent). In order for a jury waiver to be valid, the defendant must understand the “essential ingredients” of a jury trial:

These essential ingredients, basic to the concept of a jury trial, are the requirements that the jury be chosen from members of the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury panel.

Commonwealth v. Williams, 454 Pa. 368, 373, 312 A.2d 597, 600 (1973). A judge must ascertain that the waiver is a voluntary, knowing and intelligent decision by the defendant. Commonwealth v. Baxter, 282 Pa.Superior Ct. 467, 470, 422 A.2d 1388, 1390 (1980). The intelligence of a waiver of a jury trial “may not be presumed, guessed [at], or conjectured.” Commonwealth v. Hooks, 450 Pa. 562, 565, 301 A.2d 827, 828 (1973). Moreover, the voluntariness of a waiver may be vitiated by misrepresentation as to sentencing if the defendant is shown to have relied on the misrepresentation when making the decision to waiver a jury trial. Commonwealth v. Carey, 235 Pa.Superior Ct. 366, 371-72, 340 A.2d 509, 510-11 (1975). Even if the judge is satisfied that a defendant’s waiver is knowing and intelligent, he or she still has the discretion to decide whether to approve the waiver. Commonwealth v. Giaccio, 311 Pa. Superior Ct. 259, 262, 457 A.2d 875, 876 (1983). Finally, we may reverse a lower court’s order granting or denying a new trial only if the lower court abused its discretion or committed an error of law. Commonwealth v. White, 482 Pa. 197, 199, 393 A.2d 447, 448-49 (1978).

Here, the lower court found that its misrepresentation of the range of sentences appellee might receive presumptively rendered the waiver of the right to trial by jury involuntary. Lower Court Opinion at 9. We reject such a per se rule. Because there was no showing that appellee relied upon the court’s misrepresentation in waiving his right, the lower court finding was an abuse of discretion. Commonwealth v. Carey, supra, 235 Pa.Superior Ct. at 372, 340 A.2d at 511. Such a showing of reliance upon the misrepresentation is necessary because, although sentencing options may play a role in defendant’s decision to waive his right to a jury trial, such information is not essential to an understanding of the nature of the right waived. Commonwealth v. Boyd, 461 Pa. 17, 25-26, 334 A.2d 610, 615 (1975). Under this rationale, a defendant must show that a court’s misstatement regarding sentencing had a direct effect upon his decision to waive his right to a jury trial. We note that appellee had two opportunities to show that the lower court’s misrepresentation affected his decision; in his memorandum of law filed in the lower court, and in the hearing on his post-verdict motions. Appellee, however, failed to make any factual showing that the lower court’s misrepresentation directly affected his decision to waive his right to a jury trial. Absent such a showing, we will not hold that the waiver was involuntary.

Accordingly, we reverse the order of the lower court, reinstate the verdict and remand the case for sentencing.

Reversed and remanded. Jurisdiction is relinquished.