text:
    501 A.2d 269
    COMMONWEALTH of Pennsylvania v. Michael F. DEAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Nov. 29, 1985.

      Thomas C. Anewalt, Allentown, for appellant.
    James B. Martin, Assistant District Attorney, Allentown, for Com., appellee.
    Before BROSKY, WATKINS and HOFFMAN, JJ.
   BROSKY, Judge:

This appeal is from judgment of sentence for two counts of arson, risking a catastrophe and criminal conspiracy. This case presents the question of whether an indigent defendant in Pennsylvania is entitled to a preliminary hearing transcript at state expense. We agree that an indigent defendant is so entitled; however, we affirm since the appellant had a substantially equivalent alternative to the transcript.

Facts

On the day prior to the preliminary hearing, appellant’s counsel presented a motion requesting the court to authorize a court stenographer — at state expense since appellant was indigent — to take notes of testimony at the preliminary hearing. The motion was denied. At the preliminary hearing appellant’s counsel was permitted to tape record the proceedings. Partial transcriptions of this tape recording were used at trial. On appeal appellant raises the properly preserved issue that he was entitled to a stenographic record of the preliminary hearing.

Preliminary Hearing Transcript

Pennsylvania case law has not heretofore addressed whether an indigent defendant is entitled to a preliminary hearing transcript at state expense. Commonwealth v. Gelormo, 327 Pa.Super. 219, 226 n. 4, 475 A.2d 765, 768 n. 4 (1984). It is, however, axiomatic that, while a state can expand rights granted by the Federal Constitution, it cannot constrict those rights. Since the right in question has a Federal Constitutional basis, we must, perforce, recognize it in this Commonwealth.

In Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899 (1956), the United States Supreme Court stated: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” The Court in Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) extended Griffin to include provision for a free transcript prior to trial of a preliminary hearing to indigent defendants. The analysis in Roberts was grounded in the Equal Protection clause. The case concluded that where a state statute enabled criminal defendants to buy a preliminary hearing transcript, it would have to be provided at no expense to an indigent defendant.

However, Griffin had already rejected the requirement that states provide a free transcript in every case. Instead, the Court stated that other means may be found to afford “adequate and effective appellate review for indigent defendants.” Griffin, supra, at 20. This reasoning was followed in Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), where the Supreme Court upheld the denial of an indigent defendant’s request for a free transcript of his first trial since there was available “an informal alternative which appears to be substantially equivalent.”

The facts of the case at bar reveal that the trial court erred in not providing a free transcript of a preliminary hearing to an indigent defendant in accordance with Roberts. In this Commonwealth a defendant may have a stenographic record of a preliminary hearing made. Pa.R. Crim.P. 141(c)(4). The parallelism mandated by the Equal Protection Clause is that the same be provided by the state for the indigent defendant.

Nevertheless, this was not reversible error since appellant exercised his prerogative under Pa.R.Crim.P. 141(c)(4) and made a tape recording of the preliminary hearing. This tape recording must be considered, in light of Griffin and Britt, a substantial equivalent of the transcript.

In reaching this conclusion we note that in Commonwealth v. Minifield, 225 Pa.Super. 149, 310 A.2d 366 (1973), this Court held that the absence of notes of testimony from the preliminary hearing was not a per se denial of due process of law. Minifield and its progeny are distinguishable on the grounds that the focus of Minifield was that of due process and not one of equal protection as found in the case at bar. (.Minifield itself appears to make this distinction.) It is not inconsistent to hold that the absence of a preliminary hearing transcript does not necessarily deprive a defendant of a fair trial or due process of law and to also recognize that unequal access to such a transcript, depending on a defendant’s economic ability to buy it, is a violation of the Equal Protection Clause.

Another, separate, basis exists for distinguishing Mini-field. There the record did “not indicate that a request for a transcription of the notes was made at the time of the hearing.” Minifield, supra, 225 Pa.Superior Ct. at 155, 310 A.2d at 369. Instantly, and in Roberts, such a request was made.

Therefore, we hold that upon request a stenographer and transcription or a substantially equivalent alternative must be provided at state expense to an indigent defendant for a preliminary hearing. Administrative considerations mandate that such a request be made prior to the time of the preliminary hearing to ensure the presence of a stenographer as well as to preclude delay of the proceedings. See Gelormo, supra.

Judgment of sentence affirmed.

      . Appellant raises five other contentions in this appeal: (1) denial of petition to dismiss pursuant to Pa.R.Crim.P. 1100; (2) playing of tape recording of preliminary hearing at trial; (3) consolidation of two informations; (4) introduction into evidence of photographs taken at scenes of fires and (5) jury verdict contrary to the weight of the evidence. They are without merit.

      . Certainly, Roberts has not received the currency to which it is entitled by virtue of both its issuing authority and the frequency of preliminary hearings. This would appear to be the result of benign neglect; a process more frequently acknowledged in the political than the jurisprudential arena. When courts find a case particularly unpalatable, it is not unknown for them to simply ignore it. What is, strictly speaking, binding precedent, becomes, operationally, an aberration in the law. We do not join in according Roberts this ignominious fate because we find its holding consistent with our view of a constitutionally ordered society, and, of course, because it is binding precedent.

      . The predecessor to Rule 141(c)(4), Rule 120(b)(4), specified that if a defendant wanted to have a stenographer present, he had to do so "at his own expense.” Upon amendment and renumbering of Rule 120(b), this language was deleted. Commonwealth v. Gelormo, supra, at n. 4. The amendment and renumbering of the rule, which first took place in September, 1973, could be interpreted as a recognition of Roberts.

      . Since this Commonwealth permits the non-indigent to have a stenographic record of. preliminary hearings made, it must provide this service, or a substantially equivalent alternative, to indigent defendants at its own expense. Here appellant’s counsel happened to make a substantially equivalent tape recording of the proceedings. However, it must be made quite clear that appellant could not have been forced to make a tape recording at his own expense in lieu of a stenographic record. The right declared in Roberts and redeclared here is not a chimera; it is a real and enforceable right, activated on demand.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    501 A.2d 271
    Robert J. TRIFFIN, t/a General Funding, Appellant, v. John J. TURNER, Ind. & t/a “Johnnie’s & Harrie’s Texaco” a/k/a “Johnnie’s Texaco” and Harry Foose, Jr., Ind. & t/a “Johnnie’s & Harrie’s Texaco” a/k/a “Johnnie’s Texaco”, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Nov. 29, 1985.

      Robert J. Triffin, in propria persona.
    Before WIEAND, CIRILLO and ROBERTS, JJ.
   WIEAND, Judge:

Robert J. Triffin, trading as “General Funding,” purchased an account owed by John J. Turner and Harry Foose, Jr., trading as “Johnnie’s and Harrie’s Texaco,” to Cintas Corporation for uniform rentals. Triffin’s place of business is in Philadelphia; Turner and Foose operate a service station in Bucks County. Triffin commenced an action in Philadelphia County to recover an unpaid balance allegedly in the amount of $6,097.43. Service of the complaint was made by deputizing the sheriff of Bucks County. The defendants filed preliminary objections challenging venue. On September 24, 1984, the court in Philadelphia transferred the complaint to Bucks County. A motion for reconsideration was denied, and Triffin appealed.

Venue in an action against a partnership is governed by Pa.R.C.P. 2130(a), which provides as follows:

Rule 2130. Venue
(a) Except as otherwise provided by subdivision (c) of this rule, an action against a partnership may be brought in and only in a county where the partnership regularly conducts business, or in the county where the cause of action arose or in a county where a transaction or occurrence took place out of which the cause of action arose.

Improper venue must be raised by preliminary objection. “If a preliminary objection is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county.” Pa.R.C.P. 1006(e).

In the instant case, the defendant partners regularly conducted business in Bucks County, and it was there that they were served. The plaintiffs assignor, which allegedly had agreed to furnish uniforms to defendants for a rental or service charge, maintained a place of business in Philadelphia County, where the uniforms had been cleaned and maintained and from which new uniforms had been supplied. The averments of the complaint, moreover, were that the written uniform rental agreement had been entered in Philadelphia. Finally, “the rule is universal in the absence of agreement to the contrary, that payment [was] due at [plaintiffs assignor’s] residence or place of business, and venue [was] proper there in a breach of contract action alleging failure to make payment.” Lucas Enterprises, Inc. v. Paul C. Harman Co., Inc., 273 Pa.Super. 422, 425, 417 A.2d 720, 721 (1980). We conclude, therefore, that venue was properly laid in Philadelphia County.

The trial court did not determine that the plaintiffs choice of forum was in violation of the venue requirements of Pa.R.C.P. 2130. Indeed, it found that venue was undoubtedly proper. If venue had been properly laid in Philadelphia, however, the preliminary objections should have been dismissed. If venue was proper, the court could not act sua sponte to transfer venue to Bucks County. See: Hosiery Corp. of America, Inc. v. Rich, 327 Pa.Super. 472, 476 A.2d 50 (1984).

The trial court, in an opinion filed after an appeal had been taken, explained that it had transferred venue in the exercise of its discretionary powers because “the interests of the parties and our judicial system [would] be best served by the prosecution of this action in the Bucks County Court System.” We are constrained to agree with appellant that this was an abuse of discretion.

Pa.R.C.P. 1006(d) permits a court “upon petition of any party” to transfer an action “for the convenience of the parties and witnesses.” In the instant case, there was no petition filed by any party to transfer the case on grounds of forum non conveniens. Although the defendants had filed preliminary objections challenging venue, the only relief requested had been a dismissal of appellant’s action. This was an inadequate basis on which the court could act to transfer venue in view of the fact that venue in Philadelphia was proper. Hosiery Corp. of America, Inc. v. Rich, supra. There has been no allegation in these proceedings, nor has evidence been presented, that it would be more convenient for either the parties or the witnesses to litigate the action in Bucks County. In the absence of such evidence, it was an abuse of discretion to disturb the plaintiff’s choice of a proper forum. Cf. Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 491 A.2d 154 (1985); Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 461 A.2d 805 (1983). See also: Walker v. The Ohio River Company, 416 Pa. 149, 205 A.2d 43 (1964) (it is for plaintiff to choose place of suit); Plum v. Tampax, 399 Pa. 553, 160 A.2d 549 (1960) (same); Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 575, 426 A.2d 635, 643 (1980) (same); Pennsylvania Power and Light Company v. Gulf Oil Corporation, 270 Pa.Super. 514, 539-540, 411 A.2d 1203, 1217 (1979), cert. denied, 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825 (1980).

The transfer of venue by the trial court appears to have been based primarily upon its belief that the plaintiff had been engaging in forum shopping. A prior action between the same parties in Bucks County, the trial court observed, had been discontinued voluntarily by appellant prior to commencing an action in Philadelphia. Whether, under appropriate procedural circumstances, this might be a significant consideration, we need not now decide. It is enough for our purposes that venue had properly been laid by the plaintiff-appellant in Philadelphia County and that no party had alleged or proved that it would be more convenient to the parties and witnesses to proceed in Bucks County. Under these circumstances, the trial court abused its discretion when, acting sua sponte, it transferred venue to Bucks County.

Order reversed.

      . An order changing venue is appealable. Pa.R.A.P. 311(c) provides: "An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.”

      . The preliminary objections suggested otherwise, but the averment therein contained was not verified, and the preliminary objections did not contain a notice to plead.


author: WIEAND, Judge: SPAETH, President Judge,

text:
    501 A.2d 273
    COMMONWEALTH of Pennsylvania, Appellee, v. Roland SMITH, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1985.
    Filed Nov. 29, 1985.

      John A. Halley, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

Roland Smith, Jr. was tried by jury and was found guilty of involuntary deviate sexual intercourse. Timely post-trial motions were dismissed, and the trial court sentenced Smith to not less than six nor more than twelve years in prison. The judgment of sentence was affirmed per curiam by the Superior Court on May 28,1982. A P.C.H.A. petition filed during the pendency of the direct appeal was dismissed because the trial court lacked jurisdiction to hear it. In March, 1983, Smith filed a second P.C.H.A. petition. Counsel was appointed to represent Smith, but thereafter the petition was dismissed without hearing on October 18, 1983. In response to a petition for reconsideration, the P.C.H.A. court vacated its prior order and, on November 9, 1983, gave Smith a period of twenty days within which to file a reply to the answer which the Commonwealth had filed to Smith’s P.C.H.A. petition. A reply was thereafter filed, and an evidentiary hearing was held. On April 30, 1984, the court entered an order denying relief. Smith did not file a timely appeal from the court’s order.

On July 18, 1984, Smith filed a petition for permission to appeal nunc pro tunc from the order denying post conviction relief. Attached to his petition was a copy of a letter which bore the date of May 12, 1984, and contained language directing counsel to file an appeal from the order denying appellant’s P.C.H.A. petition. With respect to the copy of the May 12 letter, the petition recited:

4. By letter dated June 30, 1984, Mr. Smith indicated [to counsel] that he had mailed a request to counsel in May, 1984, asking for an appeal to the Superior Court. Mr. Smith included a copy of a letter he states was sent on or about May 12, 1984, to counsel. Copies of these letters have been attached to the petition and are labeled Exhibits C and D.
5. Counsel did not receive the letter dated May 12, 1984, until he received the June 30, 1984, letter from Mr. Smith.
6. Counsel believes and, therefore, avers that Mr. Smith desired to timely appeal the denial of post conviction relief dated April 30, 1984.

The trial court determined that the reasons alleged in Smith’s petition were inadequate to support an appeal nunc pro tunc and, by order dated July 24, 1984, denied the requested relief without hearing. This appeal followed.

The law is clear that an appeal must be filed within thirty days after entry of the order from which the appeal is taken. Commonwealth v. Molyneaux, 277 Pa.Super. 264, 265, 419 A.2d 763, 764 (1980); Commonwealth v. Gottshalk, 276 Pa.Super. 102, 104, 419 A.2d 115, 116 (1980); 42 Pa.C.S. § 5571; Pa.R.App.P. 903(a). Timeliness of an appeal is jurisdictional. Maxton v. Philadelphia Housing Authority, 308 Pa.Super. 444, 448, 454 A.2d 618, 620 (1982); Commonwealth v. Molyneaux, supra 211 Pa.Super. at 266, 419 A.2d at 764; Commonwealth v. Gottshalk, supra. A court may not enlarge the time for filing a notice of appeal as a matter of grace or indulgence. Bass v. Commonwealth, 485 Pa. 256, 259, 401 A.2d 1133, 1135 (1979); West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Dixon Estate, 443 Pa. 303, 305, 279 A.2d 39, 40 (1971); Maxton v. Philadelphia Housing Authority, supra. “Only where there are circumstances such as ineffectiveness of counsel, fraud, or a breakdown in the court’s operations is an appeal nunc pro tunc justified.” Commonwealth v. Frazier, 324 Pa.Super. 334, 339, 471 A.2d 866, 868 (1984). See also: Bass v. Commonwealth, supra (only fraud or breakdown in the court’s operations may justify an appeal nunc pro tunc); West Penn Power Co. v. Goddard, supra (same); Commonwealth v. Ritchie, 298 Pa.Super. 165, 168, 444 A.2d 712, 714 (1982) (a defendant is entitled to effective assistance of counsel on appeal and such assistance includes counsel’s assistance in perfecting an appeal); Marcinak v. Lavery, 286 Pa.Super. 92, 96, 428 A.2d 587, 589 (1981) (time for filing an appeal can only be extended where there is fraud or a breakdown in the court’s operations). Negligence on the part of the appellant does not justify the granting of an appeal nunc pro tunc. Bass v. Commonwealth, supra; Tarlo v. University of Pittsburgh, 66 Pa.Cmwlth. 149, 151, 443 A.2d 879, 880 (1982).

None of the circumstances which will justify an appeal nunc pro tunc have been alleged in appellant’s petition. He has not alleged that counsel was ineffective; he has not alleged fraud; and he has not alleged that there was a breakdown in the court’s operations. The author of the dissent would remand for a hearing to determine if possibly “someone in the prison ... had been negligent in mailing appellant’s letter to counsel asking that counsel file an appeal.” However, appellant has not alleged that anyone at the prison was negligent. He has merely produced a copy of a letter which, admittedly, his attorney never received and which, according to his later letter, he had placed in a prison mail box. There is no averment any place in Smith’s petition that the letter requesting counsel to take an appeal was placed in an envelope properly addressed and stamped before it was placed in a prison mail box. The only thing that can be determined definitely from appellant’s petition is that his counsel never received a request to file an appeal and that appellant, in a later letter to counsel, produced a copy of an earlier letter which, he said, he had placed in a prison mail box.

To permit an appeal nunc pro tunc under these facts would mark a clear departure from legislative and judicial proscriptions against untimely appeals. See: Bass v. Commonwealth, supra 485 Pa. at 265-266, 401 A.2d at 1138 (Denial of Application for Reargument; Roberts, J., dissenting). In Bass, in a similar context, Justice Roberts observed:

[t]he statutory thirty day filing requirement is a legislative determination that appeals if taken must be within that period. That requirement is a legislative judgment that statutory timely appeals and adjudicative finality advance the quality of our jurisprudence.
... [An] arbitrary departure ... from the fixed statutory time limits for filing appeals will surely come as a startling and unwelcome surprise to the bench, bar and particularly the Legislature.

Id., 485 Pa. at 266, 401 A.2d at 1138. (Denial of Application for Reargument; Roberts, J., dissenting). Because Smith did not allege in his petition the existence of either ineffective assistance of counsel, fraud or breakdown in the court’s operations, the trial court properly enforced the thirty day limitation on the right of appeal. There was no error in the dismissal of Smith’s petition for permission to file an appeal nunc pro tunc.

Affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

I dissent because I should find appellant entitled to a hearing on his petition to appeal nunc pro tunc.

In Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), the Supreme Court reiterated that the period for filing an appeal may be extended where there is fraud or breakdown of the court’s operation. In addition, the Court held that the non-negligent failure of an attorney to file a timely appeal may also provide a basis for allowing an appeal nunc pro tunc. Id., 485 Pa. at 260, 401 A.2d at 1135. Cf. Commonwealth v. Keys, 313 Pa.Super. 410, 460 A.2d 253 (1983) (applying Bass to criminal case but finding that untimely filing was not due to non-negligent conduct). “[I]t has also now been held that where the appellant has not been negligent, negligent acts by a third party not part of the litigation process will also excuse an untimely filing and permit an appeal nunc pro tunc. Walker v. Commonwealth, Unemployment Compensation Board of Review, 75 Pa.Cmwlth. 116, 461 A.2d 346 (1983) (failure of post office to forward notice of referee’s decision allegedly resulted in untimely filing of appeal).” Roderick v. Commonwealth, State Civil Service Commission, 76 Pa. Cmwlth. 329, 332, 463 A.2d 1261, 1263 (1983).

On July 18, 1984, appellant filed a Petition for Permission to File a Notice of Appeal Nunc Pro Tunc from the April 30, 1984, order denying him relief under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. Appellant alleged that “he had mailed a request to counsel in May, 1984 asking for an appeal to the Superior Court”, and that “[cjounsel did not receive the letter dated May 12, 1984, until he received the June 30, 1984, letter from Mr. Smith [appellant].” Petition, Till 4, 5. Attached to the petition were copies of correspondence between appellant and his counsel. In his letter of June 30, 1984, appellant wrote his counsel:

I cannot understand how this letter [letter of May 12, 1984, requesting counsel file appeal] failed to reach your Office. I had placed this letter in the Institution’s [where appellant was incarcerated] Mail Box., somehow, this communique has been lost or misplaced. This of course is not my fault.
Petition, Exhibit C.

In these circumstances I believe that the trial court should have held a hearing on whether appellant’s appeal had been untimely filed because someone in the prison where appellant was incarcerated had been negligent in mailing appellant’s letter to counsel asking that counsel file an appeal. Bass v. Commonwealth, supra; Roderick v. Commonwealth, State Civil Service Commission, supra; Walker v. Commonwealth, Unemployment Compensation Board of Review, supra. If the May 12th letter failed to reach counsel due to the negligence of prison personnel, the court should allow an appeal nunc pro tunc.

The case should be remanded for a hearing consistent with this opinion.

      . Charges of rape and unlawful restraint were dismissed by the court.

      . The paragraph quoted in the dissenting opinion was taken from Smith’s letter to counsel of June 30, 1984.


author: OLSZEWSKI, Judge:

text:
    501 A.2d 277
    Albert J. AIKENS, Richard J. Aikens, Clifford M. Aikens, Michael J. Alloe, Helen Arble, Harold E. Bailey, Eugene Baker, Martha Kay Baker, Donna J. Banyas, Fred Barton, Michael D, Bateman, Dennis Beldin, George Benec, John D. Benec, Reginald Bethune, John Bey, Harold John Blakely, Benjamin Brown, Jr., James P. Bucci, Ronald J. Bure, Alice Burgett, Sigmonda Catalone, Elijah Chapman, Chea Chhim, Richard Chop, Edward D. Collington, Glenn Connell, Juanita E. Con-nor, Annabelle Cooper, Thelma A. Cox, David Creighton, Jesse Cummings, Robert E. Cummings, Robert Earl Cummings, Jr., Eddie Cunningham, Cheryl Delucia, Samuel L. Demark, Claudino T. Devito, Maureen Disiena, Dennis T. Donaldson, William R. Dow, Lois F. Eckenroad, Ronald Far-ren, Michael G. Felton, Jr., Don Fetsick, Richard T. Fetsick, Thomas L. Fetsick, James R. Fields, Jean M. Fields, John R. Finnigan, Ozzie W. Fletcher, Patricia Focht, Robert L. Gay, Ellen Goldsmith, Bryan K. Goodrow, James D. Gregory, Sandra Gregory, Dale Griffith, James Grovanz, David Hallawell, John Harden, Elyah Harrier, Mackina Harrier, Harry D. Hart, Charles J. Hartman, Jr., Paul E. Haviland, Jack A. Helsel, Kiem Hoang, Stephen L. Irwin, Sylvia V. Ives, James L. Jackson, Ada Johnson, Doris A. Johnson, Maxine D. Johnson, Edna S. Jordan, Paul J. Kamats, Marcel L. Kanewski, David Allen Keller, Delores Keslar, Bernard C. Kinner, Susan Kline, Darryl Kountz, Nicholas Krul, Leo J. Kurp, Frank Lamanna, Earl E. Lanious, Alex Lapinski, Alexander Lapin-ski, Jr., Joyce A. Lee, Harry M. Lindsey, Jr., Sara L. Lucas, William Lynch, Lawrence C. Macklin, Harry E. Mansfield, Wayne L. Mapp, Frederick C. Marshall, Victoria L. Marshall, Joseph N. Martis, Stephen A. Maszle, Eugene E. McAdams, Carl A. McCourt, Vivian McFall, Raymond McFeaters, Martha Miller, Ethel Milton, James Milton, Gerald W. Moate, Joyce Moore, Linda K. Moore, Roselie Moore, May Moua, Patrick J. Mullen, Alfred M. Neenan, Phat Nguren, Roger Nichols, Thomas M. Nowakowski, Thomas E. Oliver, Terry J. O’Neill, William H. Pennington, Dennis Pesock, Ricky L. Purchell, William L. Putt, Robert C. Ribich, James R. Richards, Robert S. Ridley, Yvonne Rose, Thomas L. Rossman, Sr., Clarence E. Sabin, Donald L. Schorr, Samuel L. Seabolt, Jayanti K. Shah, Thomas Shirley, Gary Wayne Skowron, Franklin R. Smalls, Jack T. Smith, Norman Smith, Stephen L. Snyder, Frank Staszak, Jr., Charlotte Stevens, Howard Stuart, Linda A. Stuart, Joseph C. Studer, Joseph Szewoow, Janet Tartaglia, John Teates, Arnold J. Thomas, Timothy A. Vargo, Cyril Waddington, Joseph W. Walczak, Jr., Robert R. Walker, Steven Wheatley, Alexander Whitaker, Frank G. Wolfanger, John M. Yahnite, Donald Yoder, Bernard R. Zikefoose, Boa Pham Phuoc, Ronald R. Zimmerman, Lillie L. Beasley, Robert J. Yaremko, Benjamin F. Williams, Frank J. Lach, Leroy Brown, Alfred E. Stunkey, Rita M. Glasser, Hoa Due Pham, Baqphuoc Pham, Wilhelminia Jo Peterson, Martin J. Doherty, Roy F. Titchenell, Joseph W. Mills, William F. Lynch, Joseph Kossarth and Tony C. Doan, Appellants, v. BALTIMORE AND OHIO RAILROAD COMPANY, A Corporation, and its Parent, Chessie System, Inc., and Pittsburgh and Lake Erie Railroad Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Nov. 29, 1985.

      Michele M. Lally, Pittsburgh, for appellants.
    Theresa Homisak, Pittsburgh, for appellees.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

This appeal follows an order by the Court of Common Pleas of Allegheny County, Civil Division, which granted judgment on the pleadings to the appellees and dismissed appellants’ complaint. Appellants, employees of the Motor Coils Manufacturing Company, Inc., brought suit seeking damages for lost wages, alleging that appellees’ negligence caused a train derailment which damaged the Motor Coils plant. As a result of the derailment, production at the plant was curtailed and appellants suffered loss of work and wages. Appellants did not suffer personal injury or property damage from the derailment.

On appeal, the appellants raise two issues. First, appellants argue that Pennsylvania should recognize a cause of action to compensate a party suffering purely economic loss, absent any direct physical injury or property damage, as a result of the negligence of another party. We find this argument to be without merit.

The general rule is stated in the Restatement (Second) of Torts Sec. 766C:

Negligent Interference with Contract or Prospective Contractual Relation. One is not liable to another for pecuniary harm not deriving from physical harm to the other, if that harm results from the actor’s negligently
(a) causing a third person not to perform a contract with the other, or
(b) interfering with the other’s performance of his contract or making the performance more expensive or burdensome, or
(c) interfering with the other’s acquiring a contractual relation with a third person.

Thus, recovery for purely economic loss occasioned by tor-tious interference with contract or economic advantage is not available under a negligence theory. Local Joint Executive Board of Las Vegas v. Stern, 98 Nev. 409, 651 P.2d 637 (1982). A cause of action exists in this situation only if the tortious interference was intentional or involved parties in a special relationship to one another. See Petition of S.C. Loveland, Inc., 170 F.Supp. 786 (E.D.Pa.1959); W. Prosser, Handbook of the Law of Torts Sec. 130 (4th Ed.1971).

The roots of this well-established rule reach back to the United States Supreme Court decision of Robins Dry Dock and Repair Company v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927). Writing for the Court, Mr. Justice Holmes stated:

(A)s a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. The law does not spread its protection so far.

275 U.S. at 309, 48 S.Ct. at 135, 72 L.Ed. at 292. Therefore, negligent harm to economic advantage alone is too remote for recovery under a negligence theory. The reason a plaintiff cannot recover stems from the fact that the negligent actor has no knowledge of the contract or prospective relation and thus has no reason to foresee any harm to the plaintiffs interest. See General Foods Corp. v. United States, 448 F.Supp. 111 (D.Md.1978); Just’s, Inc. v. Arrington Construction Company, 99 Idaho 462, 583 P.2d 997 (1978); Stevenson v. East Ohio Gas Co., 73 N.E.2d 200 (Ohio App.1946).

Recently, the Georgia Court of Appeals was faced with a factual setting quite similar to the case at bar. In Willis v. Georgia Northern Railway Company, 169 Ga. App. 743, 314 S.E.2d 919 (1984), the appellants were employees of a plant which was damaged when eight loaded railcars owned by the appellee railroad broke free and rolled into the plant. The plant employees sued the railroad for lost wages. The Georgia Court held that the employees’ right to wages existed by virtue of their relationship with the plant and not the railroad. Thus, loss of wages was not a probable consequence of the railroad’s negligence and the damages claimed were too remote. Id. We find this reasoning persuasive.

Finally, we note that allowance of a cause of action for negligent interference with economic advantage would create an undue burden upon industrial freedom of action, and would create a disproportion between the large amount of damages that might be recovered and the extent of the defendant’s fault. See Restatement (Second) of Torts Sec. 766C, comment a (1979). To allow a cause of action for negligent cause of purely economic loss would be to open the door to every person in the economic chain of the negligent person or business to bring a cause of action. Such an outstanding burden is clearly inappropriate and a danger to our economic system.

Accordingly, we decline appellants’ invitation to adopt the reasoning of the California Supreme Court in J’Aire Corp. v. Gregory, 24 Cal.3d 799, 157 Cal.Rptr. 407, 598 P.2d 60 (1979), and to extend negligence liability to embrace purely economic loss. Such an extension would clearly lead to problems in consistency and foreseeability, and could be harmful in scope. Instead, we adopt the majority rule of the Restatement (Second) of Torts Sec. 766C, and hold that no cause of action exists for negligence that causes only economic loss.

Appellants' second argument is that the trial court erred in granting appellees' motion for judgment on the pleadings because there were genuine issues of material fact in dispute between the parties. We note that judgment on the pleadings can be awarded on the basis that the appellants failed to state a cause of action. Enoch v. Food Fair Stores, Inc., 232 Pa.Super. 1, 331 A.2d 912, 914 (1974). If appellants attempt to recover on a theory which is not recognized as a matter of law, a grant of judgment on the pleadings is proper. Id. In such case, a trial would surely be a “fruitless exercise.” Keil v. Good, 467 Pa. 317, 356 A.2d 768, 769 (1976). Given this Court’s finding today that no cause of action exists for negligence which results in only economic loss, judgment on the pleadings is proper, and appellants’ arguments are meritless.

Order affirmed.


author: LIPEZ, Judge: WIEAND, Judge,

text:
    501 A.2d 279
    COMMONWEALTH of Pennsylvania v. Barbara GOINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed Nov. 29, 1985.

      Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, POPOVICH and LIPEZ, JJ.
   LIPEZ, Judge:

In a jury trial, defendant was convicted of simple assault, resisting arrest, and obstructing the administration of law. Post-verdict motions were denied, and a sentence of two consecutive one-year terms of probation was imposed for the simple assault and obstructing the administration of law charges. Sentence was suspended on the charge of resisting arrest. In this appeal defendant alleges that (1) the evidence was insufficient to support the verdict; and (2) the trial court erred by refusing to instruct the jury as to the definition of “bodily injury” for the simple assault and resisting arrest charges. We affirm.

Defendant’s sufficiency of the evidence claim is waived since she failed to specifically include it in her post-verdict motions. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983), petition for allowance of appeal denied.

In defendant’s other claim, she argues that without having been instructed as to the definition of “bodily injury,” the jury was forced to “rely on speculation and on individual prejudices to reach a verdict” on the charges of simple assault and resisting arrest. “Bodily injury” is defined as “impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301. Pennsylvania Suggested Standard Criminal Jury Instructions indicate that courts should use this definition in connection with the instructions on the various assault crimes, including simple .assault. Pa. SSJI (Crim) 15.2701A-E. We do not believe, however, that “bodily injury” is a legal term with a meaning “laymen do not necessarily understand without judicial guidance.” Commonwealth v. Robinson, 284 Pa.Super. 152, 156, 425 A.2d 748, 750 (1980). Furthermore, the jury heard testimony that defendant inflicted bruises and scratches upon the arresting officers. Clearly, there was little room for speculation as to whether this constituted “bodily injury.” Therefore, the court’s failure to define “bodily injury” did not prejudice the defendant.

Judgment of sentence affirmed.

WIEAND, J., dissents.

WIEAND, Judge,

dissenting:

Barbara Goins was tried by a jury and was found guilty of simple assault, resisting arrest, and obstructing the administration of law.

Simple assault and resisting arrest are offenses which the legislature defined in a manner to protect against “bodily injury” or the threat thereof. Thus, the infliction of bodily injury or an attempt to inflict the same or put another in imminent fear thereof is an essential element of simple assault; and a substantial risk thereof is an element of resisting arrest. In the instant case, the element of “bodily injury” was an essential element of the crimes charged in the information. The trial court, however, failed to define the term “bodily injury” for the jury and specifically denied a request for such an instruction when made by defense counsel. This, in my opinion, was reversible error.

“ ‘The primary duty of the trial judge in charging the jury is to clarify the issues so that the jury may understand the questions to be resolved.’ ... [F]ailure to fulfill this duty deprives the defendant of a fair trial.” Commonwealth v. Litman, 276 Pa.Super. 114, 118, 419 A.2d 121, 123 (1980), quoting Commonwealth v. Jordan, 407 Pa. 575, 587, 181 A.2d 310, 316 (1962).

“Bodily injury” has been carefully defined by the legislature to mean “[impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301. By virtue of this definition, the term “bodily injury” has a specific meaning in the criminal law which is not necessarily the same as the average layman’s understanding thereof. A definition of the term is essential to a jury’s understanding of the offenses of simple assault and resisting arrest. A definition of “bodily injury” was particularly necessary in this case, for the testimony was that the defendant had “kicked [a policeman] away from her” and had been “slapping, punching, kicking and scratching” as a result of which one police officer said that he had sustained “some scratch marks, some bruises.” Whether the defendant, under these circumstances, was guilty of inflicting or attempting to inflict “bodily injury” and whether she had created a substantial risk of “bodily injury” were not so clear that a definition of “bodily injury” was unnecessary. They were issues for the jury upon adequate instructions from the trial court. By refusing to define the term “bodily injury,” the trial court failed to define fully the offenses for which the defendant was being tried and left the jury to its own devices. This, in my judgment, was error of sufficient magnitude to require a new trial on the charges of simple assault and resisting arrest.

Therefore, I would reverse and remand for a new trial on the charges of simple assault and resisting arrest. The judgment of sentence for obstructing the administration of law, however, should be affirmed.

      . Defendant also failed to raise this issue in her written brief in support of postverdict motions.

      . Simple assault is defined at 18 Pa.C.S. § 2701 in the following language:
      (a) Offense defined. — A person is guilty of assault if he:
      (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
      (2) negligently causes bodily injury to another with a deadly weapon; or
      (3) attempts by physical menace to put another in fear of imminent serious bodily injury.
      Resisting arrest is defined at 18 Pa.C.S. § 5104 as follows:
      A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.


author: PER CURIAM: OLSZEWSKI, Judge,

text:
    501 A.2d 281
    Brian KINTER v. William KINTER. Appeal of Daniel F. GLASSMIRE.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Nov. 29, 1985.

      David B. Fawcett, Jr., Pittsburgh, for appellant.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

This appeal arises from the hearing court’s finding of appellant, counsel for defendant in the underlying custody matter, in direct criminal contempt. The court fined appellant $300.00, had the order reduced to judgment, and the within notice of appeal was filed.

On January 25, 1985, appellant presented an oral motion to have the hearing judge recused from hearing the underlying custody matter. The motion for recusal was premised upon alleged improprieties on the part of the hearing judge. On January 29, 1985, after reviewing the written motion and the transcript, the hearing court found appellant in contempt of court.

Appellant presents three (3) issues for our consideration: (1) whether appellant’s conduct in making a motion for the hearing judge to recuse himself constituted direct criminal contempt; (2) whether the hearing court’s order of contempt denied appellant due process; and, (3) whether the hearing judge was required to recuse himself from consideration of the alleged contempt matter. The following analysis and disposition of appellant’s first assignment of error obviates the need for us to discuss claims two and three above.

Although the hearing court did not issue its order of contempt until four (4) days after the purportedly contemptuous behavior, the manner of issuance renders it a summary adjudication of criminal contempt in accordance with 42 Pa.C.S.A. § 4132(3) which provides:

The power of the several courts of this Commonwealth to issue attachments and to impose summary punishments for contempts of court shall be restricted to the following cases:
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

See also, Commonwealth v. Garrison, 478 Pa. 356, 371, 386 A.2d 971, 978 (1978); In re Johnson, 467 Pa. 552, 557, 359 A.2d 739, 741 (1976).

To sustain a summary adjudication of criminal contempt, the acting court must have before it proof of every element of the offense beyond a reasonable doubt. Matter of Campolongo, 495 Pa. 627, 631, 435 A.2d 581, 583 (1981); Commonwealth v. Reid, 494 Pa. 201, 207, 431 A.2d 218, 222 (1981). The elements of direct criminal contempt are “(1) misconduct in the court’s presence, (2) intent to obstruct the proceedings, and (3) actual obstruction of the administration of justice.” Matter of Campolongo, 495 Pa. at 633, 435 A.2d at 584 (1981), citing Commonwealth v. Reid, 494 Pa. 201, 207, 431 A.2d 218, 222 (1981) (other cites omitted). In evaluating the elements of the offense, it is important to note that:

Mere affront to the trial judge is not enough. Remarks that are injudicious, or even disrespectful or insulting, will not, without more, justify a summary conviction for contempt of court.

Matter of Campolongo, 495 Pa. at 633, 435 A.2d at 584, citing Commonwealth v. Garrison, 478 Pa. at 373, 386 A.2d at 979.

Our review of the record herein reveals that the motion for recusal which resulted in the court’s finding appellant in direct criminal contempt of court does not rise to the level of contumacious behavior contemplated by 42 Pa.C.S.A. § 4132(3) and relevant case authority. Although certain portions of the motion may have been ill-advised, the motion did not significantly disrupt the proceedings, nor can we find sufficient proof of intent to so disrupt.

Accordingly, the order of contempt is vacated, and the judgment of sentence is reversed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

We respectfully dissent.

We wholeheartedly agree with the majority that simply making a motion for a judge to recuse himself is not grounds for criminal contempt.

A careful examination of the record reveals that there was more interaction between appellant and the court than the motion to recuse. For this reason, we would remand this case for a full hearing before a disinterested judge.


text:
    501 A.2d 283
    UNITED STATES NATIONAL BANK IN JOHNSTOWN, Appellant, v. RELIANCE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Dec. 13, 1985.

      E.J. Strassburger, Pittsburgh, for appellant.
    Danial J. Weis, Pittsburgh, for appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of the lower court following a jury trial in which appellant was denied payment under an insurance policy issued by appellee. Appellant contends that the Clause E, Blanket Bond Policy provided for coverage for the defaulted bank loan of Summit Mines Company, owned by Clifford L. Jones and Harold P. Walters, since the signature of Mrs. Jones, wife of co-owner Clifford Jones, was forged. The case presents no contested issue as to the amount of loss or to the authenticity of the signature. The only question is that of determining the effect of the clause fixing liability.

The disputed clause of the insurance policy is contained in a blanket bond, which covers any losses sustained by the bank as a result of a loan given on the faith of a forged signature of a guarantor. The clause, however, was not meant to cover all situations in which there are forged documents. Certain facts must be present to apply the policy. In light of our review of the evidence, we find that the policy does not apply in this situation and we therefore affirm the lower court.

Clause E of the policy is a standard clause that is regularly used. See Fields, Bankers Blanket Bonds: What They Cover and What They Do Not, Ins.Counsel J. 318; Posey, Recent Trends in Clause E Cases — Bankers Blanket Bonds, 33 Ins.Counsel J. 87. See also, Continental Bank v. Phoenix Insurance Co., 24 Cal.App.3d 909, 101 Cal.Rptr. 392 (1972); St. Paul Fire and Marine Insurance v. Leflore Bank and Trust Company, 181 So.2d 913, 254 Miss. 598 (1966). Despite the clause’s popularity, the particular problem before us today is unique to Pennsylvania courts. California, however, has decided a case almost directly on point which was relied upon by the trial court judge in denying appellant’s motion for judgment n.o.v. and motion for a new trial. Continental Bank v. Phoenix Insurance Co., supra, turned on facts strikingly similar to those sub judice. So, too, were the allegations of error and contentions of the appellee. As we propose to do now, the California appellate court upheld the jury verdict in favor of the insurance company.

Upon review of the evidence, Reliance, as verdict winner, is entitled to the benefit of every fact and every reasonable inference of fact arising therefrom, as well as having the evidence viewed in a light most favorable to it and any conflict arising from the evidence resolved in its favor. See Jones v. Three Rivers Management Corporation, 483 Pa. 75, 394 A.2d 546 (1978); Fannin v. Cratty, 331 Pa.Super. 326, 480 A.2d 1056 (1984); Amerofina, Inc. v. U.S. Industries, Inc., 232 Pa.Super. 394, 335 A.2d 448 (1975). The pertinent facts, as found by the trier of fact, establish the following.

In 1979 appellant extended a line of credit to Summit Mines Company, a partnership consisting of Clifford L. Jones and Harold P. Walters. The credit was for $200,000, later increased to $400,000. Collateral for the loan was supplied by the accounts receivable of the business. The amount loaned was not to exceed 70 percent of the amount due Summit from other companies. Part of the paper work involved in obtaining the loans required the signatures of Mr. Jones and Mr. Walters, along with the signatures of their wives. In addition, financial statements were submitted by both men. The record shows that appellant was familiar with Mr. Walters in that several other transactions had been conducted between them. Therefore, it was not difficult to check the signatures of Mr. and Mrs. Walters. The signature of Mr. Jones was also verified. As to Mrs. Jones, the bank had no way to compare her signature, did not inquire into her credit, and had no contact with her regarding this or any other transaction.

Appellant argues that the judge improperly used “reliance” in its charge. The judge instructed the jury that they must find that the bank acted in “reliance” on the forged signature in order for them to recover under the terms of the policy. Appellant contends that “reliance” is an undue burden since the policy language requires the bank merely to act “in good faith” or “on the faith of” the signature. There is not such a stark distinction between the two rendering them incapable of being interchangeable. Citing Roget’s Thesauras as authority, using the terms interchangeably is not improper, although appellant would like us to find so. We will, however, cite an additional reference, one more on point, in which “reliance” was substituted for “on the faith of.” The Continental court interpreted the same Clause E language as meaning reliance when it wrote, “(t)he phrase ‘on the faith of clearly signifies something done ‘in reliance upon.’ ” We therefore agree with the trial court that appellant’s argument has no merit.

In the alternative, the appellant contends that even if “reliance” was the burden of proof to be used, that burden was satisfied. We do not agree. The signature of Mrs. Jones was no doubt' necessary. The bank required the signature to protect itself in case of default. Obviously its method of protection is ineffective. In attempting to be assured of collection in the event that joint assets were needed to satisfy the debt, the bank was completely satisfied with Mr. Jones’ word as to his wife’s signature on the document. “Reliance” and even “acting on the faith of” requires something more. While the signature was necessary for protection purposes, it was not a determining factor in whether or not the loan should have been granted. The probing considerations acted on by the loan committee were the financial statements of each partner; the credit history of Mr. Walters; the financial statement of Summit Mines Company; the accounts receivable of the company; and the signatures of Walters and Jones. Indeed, since no money would be given without accounts receivables and only 70 percent of the accounts receivable would be loaned, this appears to be the factor most heavily relied on or acted upon. Therefore, it seems clear that not only was Mrs. Jones’ signature not “relied on” in giving the loan but that the loan was not given “on the faith of” her signature. Either way, appellant’s argument must fail. It follows, then, that it is not necessary to discuss appellant’s issue as to whether Mrs. Jones’ signature was a “proximate cause” of the loss since the judgment against appellant is supported by the finding that Mrs. Jones’ signature was not relied on in giving the loan.

Lastly, we find appellant’s last two issues, that of an improper example given to the jury and the improper allowance of appellee’s answer to appellant’s request for admissions, to be without merit. As noted by the trial court, the example given was proper since it was made clear to the jury that the example was illustrative only and the ultimate decision as to the verdict was for the jury. In addition, we agree that the trial court did not abuse its discretion in allowing the answer to the request for admissions.

In light of the foregoing analysis, the lower court judgment is affirmed.

      . The applicable provision of the Reliance policy provides coverage when there is:
      Loss ... through the Insured's having, in good faith ... given any value ... on the faith of, otherwise agreed upon, any ... documents ... which prove to have been ... forged as to the signature of any ... guarantor____

      . While we realize that a decision by a California appellate court is not binding, because the facts and issues on appeal were so similar, we find the Continental case to be informative and helpful in coming to our decision today.

      . The financial statement submitted by Mr. Walters was a joint statement of Mr. and Mrs. Walters. The financial statement submitted by Mr. Jones was marked "Personal." Although there was some testimony that a few of the assets were held jointly by Mr. and Mrs. Jones, a proper inference by the jury was that it was the financial statement of Mr. Jones only.


text:
    501 A.2d 285
    COMMONWEALTH of Pennsylvania, Appellant, v. Alex WOOTEN, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed Dec. 13, 1985.

      Stephen B. Harris, Assistant District Attorney, Warring-ton, for Commonwealth, appellant.
    Joseph S. Britton, Langhorne, for appellee.
    Before OLSZEWSKI, MONTGOMERY and LEDERER , JJ.

       Judge William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

This appeal from judgment of sentence is taken by the Commonwealth in an effort to increase appellee’s minimum sentence from three years to five years through the application of the Mandatory Sentencing Act (Act), 42 Pa.C. S.A. Section 9712. The sole issue to be decided is whether the trial court abused its discretion and erroneously held that since appellee’s possession of a firearm was not visible, the Act was not applicable. Because we find that the use of the firearm was visible and that the Act should therefore be applied, we vacate the lower court’s judgment of sentence and remand for sentencing consistent with this opinion.

Under the Mandatory Sentencing Act, a mandatory five year minimum sentence must be imposed in every case in which a person is convicted of certain enumerated crimes if such person visibly possessed a firearm. “Visibly” is not

defined and is the determining element in whether or not the Act will apply.

Litigation concerning the Mandatory Sentencing Act has been sparse. Its constitutionality was recently upheld by the Pennsylvania Supreme Court. The Superior Court also rejected constitutional challenges to the Act in Commonwealth v. Anderson, 345 Pa.Super. 407, 498 A.2d 887 (1985). Since then, this court has had very few chances to interpret the definition of “visibly possessed.” One such case was Commonwealth v. Healey, 343 Pa.Super. 323, 494 A.2d 869 (1985), where visibly possessed was defined as possession “which manifests itself in the process of the crime.” The definition was purposely left broad so that it would apply to situations in which a firearm is hidden but has a visible effect on the victim. By adopting such a liberal definition, the Healey court specifically rejected the argument that the victim must actually see the firearm being used by his assailant.

This decision was reaffirmed in Commonwealth v. Wood-lyn, 345 Pa.Super. 200, 497 A.2d 1374 (1985). Following the definition set out in Healey, this court held that the requirement of visible possession is satisfied “by the smoke, the sound of gunfire, and, of course the gunshot wound.” Once again, it was emphasized that it is not essential for someone to actually see the gun in use in order to sentence under the Act.

The relevant facts to be considered are as follows. After a picnic with friends, appellee and the victim exchanged words. Appellee then noticed the victim coming after him with what he believed to be a pistol on the victim’s hip. The two struggled for the gun with appellee gaining possession and proceeding to shoot the victim five times. Witnesses testified that although they did not see appellee with the gun, they either heard the shots or saw the firing. Appel-lee was not injured.

After throwing the gun in the river and fleeing the scene, appellee, accompanied by his attorney, turned himself in to the police. Appellee pled guilty to Criminal Homicide generally and Possessing an Instrument of Crime. The judge conducted an evidentiary hearing and found appellee guilty of voluntary manslaughter. In doing so, the judge concluded that appellee acted under passion resulting from serious provocation and with an unreasonable belief that the killing was justified. He was sentenced to three to ten years.

The trial court, admitting the issue was close, found that appellee was in possession but that such possession was not “visible.” In reaching this determination, the trial judge, as does appellee, relied on the fact that there was no one who actually saw appellee with the gun. Both the trial judge and appellee are in error. As previously noted, eyewitness(es) to possession of the gun are not required. If they were, it would be difficult to punish those convicted of homicide by applying the Mandatory Sentencing Act since many of the “eyewitnesses” to homicide are the victims. To follow that reasoning is to circumvent the purpose of the Act.

Additionally, appellee argues that the Act does not apply to him because it was not meant for those who kill in the heat of passion. Appellee argues strenuously that the Act was meant to deter criminals who own guns. However, this rationale is contrary to the plain language of the statute. The Act specifically states that it is to apply to persons who visibly possess a firearm. Ownership is not important. Possession is.

Applying the Mandatory Sentencing Act to the case presently before us is consistent with the previous interpretations of the Act by this court. See Commonwealth v. Healey, Commonwealth v. Woodlyn, supra. In those cases, visible possession was found even when the firearm itself was hidden as long as it was evidenced in another manner during the crime. Here we have a situation, however, in which the gun was not hidden but instead it was perceived by both the victim and appellee and, in addition, had an obvious effect on the victim by way of the sound of gunfire and the wounds produced from five shots.

Appellee clearly falls within the category of situations covered by the Act. He freely admitted to the possession of the gun; and while that alone is not sufficient, it is a necessary component. Furthermore, it cannot be said that the victim was not aware that the gun was to be used on him. Indeed, it was for control of the gun that the two struggled. It was obvious to each that whoever gained possession would use it to his advantage. Visibility was apparent. The gun was not concealed or hidden. Both parties unequivocally knew of its existence and knew it was going to be used. Appellee was in control; he did not have to shoot the victim at all, let alone five times! Voluntary manslaughter, regardless of the circumstances, is an enumerated crime under the Act. It is therefore a proper case for mandatory minimum sentencing.

We are satisfied that the Mandatory Sentencing Act has been complied with and that a five year mandatory minimum is a proper sentence. We therefore find it necessary to reject the narrow construction of the Act used by the trial court and argued by the appellee. Accordingly, appel-lee’s judgment of sentence is vacated and remanded for resentencing in accordance with this opinion. Jurisdiction is relinquished.

      . The authority for the Commonwealth’s right to appeal is found in 42 Pa.C.S.A. Sec. 9712(d) which states:
      (d) Appeal by Commonwealth. — If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

      . Sec. 9712. Sentences for offenses committed with firearms
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. Sec. 3701(a)(l)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. Sec. 2702(a)(1) (relating to aggravated assault), or kidnapping, or who is convicted of an attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

      . Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985). Constitutionality is presently not an issue.


author: BROSKY, Judge: WIEAND, Judge,

text:
    501 A.2d 635
    Julia A. CAMBANIS, Administratrix of the Estate of Louis Cambanis, Deceased, Appellant, v. NATIONWIDE INSURANCE COMPANY, a Corporation.
    Superior Court of Pennsylvania.
    Argued March 4, 1985.
    Filed Oct. 11, 1985.
    Reargument Denied Dec. 16, 1985.

      Joseph M. Zoffer, Pittsburgh, for appellant.
    Bradley Dornish, Pittsburgh, for appellee.

      Before: BROSKY, WIEAND and LEDERER, JJ.

       Honorable William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   BROSKY, Judge:

This appeal is from an order denying class certification. We conclude, inter alia, that the trial court erred in holding that precedent establishing liability is inconsistent with class status. Accordingly, we reverse and remand for the case to proceed as a class action.

Facts and Procedural History

Appellant, Julia A. Cambanis, is the administratrix of the estate of Louis Cambanis, her deceased husband. The decedent was struck by a motor vehicle operated by an insured of Nationwide Insurance Company, appellee. As a result, Louis Cambanis died two days later. At the time of his death he was 85 years old, retired and receiving Social Security benefits. The accident was covered, at least in part, by the provisions of Pennsylvania’s No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. Nationwide has paid surviv- or’s loss, funeral and medical expense benefits to appellant.

Appellant submitted a claim for No-Fault work loss benefits, 40 P.S. §§ 1009.201, 202(b); and appellee denied liability for such benefits. Appellant then filed a complaint against appellee on behalf of the estate of her deceased husband and as representative of the class of all others who had been similarly wrongfully denied No-Fault work loss benefits. A hearing on the propriety of class certification was held, following which an opinion and order denying class certification were entered.

Appealability and Scope of Review

An order denying class certification is a final and appealable order. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975); Janicik v. Prudential Insurance Co. of America, 305 Pa.Super. 120, 451 A.2d 451 (1982). The trial court’s decision concerning class certification is a mixed finding of law and fact entitled to “appropriate deference” on appeal. Bell, supra, 465 Pa. at 235, 348 A.2d at 739.

Burden of Proof

The burden of proof in a class certification proceeding is on the party seeking certification. Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1976); Haft v. United States Steel Corp., 305 Pa.Super. 109, 451 A.2d 445 (1982). Once class action allegations are well pleaded, the class proponent must present evidence of the underlying facts from which the court can conclude that the class certification requirements and criteria are met. However, the class proponent need not prove separate facts supporting each requirement; rather, the proponent’s burden is to sufficiently establish those underlying facts from which the court can make the necessary conclusions. Janicik, supra, 305 Pa.Super at 129-30, 451 A.2d at 455. This initial burden is not heavy and is thus consistent with the policy that “decisions in favor of maintaining a class action should be liberally made.” Bell v. Beneficial Consumer Discount Co., 241 Pa.Super. 192, 205, 360 A.2d 681, 688 (1976) (after remand) (class suits enable the assertion of many meritorious claims that might not otherwise be litigated). Accord Janicik, supra. Esplin v. Hirschi, 402 F.2d 94 at 101 (10th Cir.1968) (“in a doubtful case ... any error should be committed in favor of allowing the class action.”)

In Janicik, this Court explained the rationale for the low burden of proof.

[T]he stage of proceedings at which the class certification is to be initially determined and the trial court’s extensive supervisory powers over class actions obviate the need for a strict burden of proof. A court may not make the initial class action determination until after the close of the pleadings to ensure that the class proponent is presenting a non-frivolous claim capable of surviving preliminary objections. Pa.R.Civ.P. 1707____ Throughout the class action, the court has extensive powers to protect absent members and to ensure efficient conduct of the action. See, e.g., Pa.R.Civ.P. 1710 (subclasses and limiting issues); 1713 (conduct of actions); 1714 (approving settlements); 1716 (approving counsel fees)---- The court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied. Pa.R.Civ.P. 1710, 1711....

Janicik, supra, 305 Pa.Super. at 129, 451 A.2d at 455. (Citations omitted).

Trial Court Opinion

The opinion states that all prerequisites for certification but one were met. The trial court did not find that a class action would be a “fair and efficient method of adjudication,” the last of the five prerequisites enumerated in Pa.R. Civ.P. 1702(5).

As the trial court saw it, liability on the part of appellee was a foregone conclusion. This followed from its interpretation of the 1983 Pennsylvania Supreme Court decision in Freeze v. Donegal Mutual Insurance Co., 504 Pa. 218, 470 A.2d 958 (1983). According to the trial court Freeze pronounced liability on the part of the insurance company to pay work loss benefits to estates such as appellant’s. The trial court then concluded that “[t]he issue in this case is not one of liability.” This was seen to reduce the issues in the case to one, damages. As such, it believed the case was not appropriate for class action treatment since it required separate hearings for each member of the class.

Consistent with the trial court’s interpretation of Freeze, there were findings that there was no risk of varying adjudications due to the mechanical and routine processing of work loss benefits as set forth in the No-Fault Act; Nationwide would not be presented with incompatible standards of conduct; and class members’ interests would not be foreclosed or impeded by individual work loss determinations.

The trial court also perceived an inconvenience in requiring estates from across the Commonwealth to litigate their claims in Allegheny County — making the forum inconvenient and inappropriate.

Analysis

The trial court held that the issue of liability was, as governed by precedent, to be decided against appellee. At the time the trial court so held, this was not an accurate statement; for that issue had yet to be decided.

In concluding that appellee was liable to appellant, the trial court relied on the holding in Freeze v. Donegal Mutual Insurance Co., 504 Pa. 218, 470 A.2d 958 (1983)— that an estate of a minor victim of a motor vehicle accident, otherwise covered by the No-Fault Act, was entitled to recover work loss benefits pursuant to the Act. The trial court erred in concluding that Freeze settled all issues of liability in this case and left only the issue of damages.

First, it was yet to be decided, for Freeze did not, whether the loss of the Social Security payments of a retired person was a compensable item in the No-Fault work loss calculation. It remained for our recent decision in Matza v. Allstate Insurance Co., 341 Pa.Super. 166, 491 A.2d 203 (1985) to hold that a decedent’s pension and Social Security benefits are “probable income” which the retiree had a reasonable expectation of receiving and, accordingly, the reduction in such payments as a result of his death, if otherwise covered by No-Fault, is properly compensable as work loss.

Second, even if, as a matter of law, some people have a right to compensation, it would still have to be established, as a factual matter, that appellant is within that category. The case of Minear v. State Farm Mutual Automobile Insurance Co., 309 Pa.Super 53, 454 A.2d 1078 (1983) (holding that an estate of a retired person is entitled to claim No-Fault work loss benefits and, with proper proof, collect such benefits), and Matza, supra, (holding that loss of Social Security and pension benefits are to be included in calculating work loss benefits under No-Fault), merely set appellate precedent which should be followed by this Commonwealth’s trial courts. This precedent does not “establish” liability in any particular case. This precedent is only part of the law which must be applied to the facts as found. In short, Matza gives appellant the right to get into the ring; Matza alone does not deliver a knock-out punch.

When appellant’s claim is denied, as here, then she and all others similarly situated have a right to commence an action to compel payment. Fox v. State Farm Mutual Automobile Insurance Co., 322 Pa.Super. 96, 469 A.2d 199 (1983). Under Matza, the potential for liability is now clear. Whether that potential will be realized must be determined by the court’s application of the law to the facts as established. The issue of liability is, therefore, both unresolved and a common one shared by the class.

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It is not enough that there are issues common to the class in order for class action treatment to be appropriate; those common issues must predominate. Pa.R.Civ.P. 1708(a)(1). The common, predominant issue sub judice is the propriety of appellee’s practice of denying No-Fault work loss benefits to estates of retired persons who have lost Social Security payments due to the accident. In Nye v. Erie Insurance Exchange, 307 Pa.Super. 464, 453 A.2d 677 (1982), this Court considered a similar issue of commonality: where an insurer refused to pay under its No-Fault policy, we held that class action treatment was appropriate for such an issue.

If Nye is not permitted to maintain this suit, all the class members will be forced to file individual suits to vindicate their rights. To thrust numerous members of a class into separate actions would be an intolerable waste of judicial resources when the claims of all plaintiffs may be expeditiously settled in one suit. Class actions can be a fair and efficient method of resolving disputes and to subject the parties and the court system to the hazards of expensive separate litigation in this context would eviscerate the purpose of the class action as a “procedural device designed to promote efficiency and fairness in the handling of large numbers of similar claims.”

Nye, supra, 307 Pa.Superior Ct. at 467, 453 A.2d at 678.

In Allessandro v. State Farm Mutual Insurance Co., 259 Pa.Super. 571, 393 A.2d 973 (1978), a case in many respects similar to the one at bar, we also held that a class action was proper. The cause of action was based on the reduction of uninsured motorist’s payments by the insurer under the medical payments coverage. We can discern no valid ground for distinguishing the instant case from Nye or Allessandro.

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The trial court also denied certification because separate hearings on damages would, in its opinion, defeat the efficiency of the class action. “Since the loss has to be established in each case, it would require separate hearings for each member of the class.”

The trial court was correct in its perception that separate damage determinations will be required; it erred, however, in concluding that this circumstance bars a class action.

It is well-established that questions as to the amount of individual damages do not preclude a class action. ABC Sewer Cleaning, 293 Pa.Super. 219, 438 A.2d 616 (1981); Ross v. Shawmut Development Corp., 460 Pa. 328, 333 A.2d 751 (1975); Janicik, supra; 1 Newburg on Class Actions § 1155(a) and (c). If this were not so, it would be rare, indeed, that a class action would ever be certified. (How often would class members ever suffer identical damages?)

Pennsylvania Rules of Civil Procedure 1710, 1713 and 1714 grant the court extensive powers to manage the class action. These include the ability to limit the class action as to issues, divide the class into subclasses, approve settle ments and monitor the conduct of the action. In Janicik this Court stated that: “The court should rely on the ingenuity and aid of counsel and upon its plenary authority to control the action to solve whatever management problems litigation may bring.” Janicik, supra, 305 Pa.Super. at 142, 451 A.2d at 462. The determination of damages is an appropriate area for the exercise of these powers.

A trial limited to the issue of liability is an efficient method of deciding appellee’s liability, generally, to the estates of Social Security recipients claiming No-Fault work loss benefits. If the issue of liability is decided in favor of the estates, then the question of the amounts of individual damages will be considered.

Where damages may be determined by a mathematical or formula calculation and may be considered a mechanical task, then a class action may be proper. Wind-ham, supra. We leave it to the trial court to determine how the damage issue should be handled, but not without observing that the insurance industry is in the business of creating and utilizing actuarial tables and routinely handles No-Fault work loss claims. The amount of damages due to each estate would appear to be a straight-forward calculation once liability is shown. The damage issue is, therefore, suitable for class action treatment.

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The trial court was also concerned about concentrating the litigation in the Allegheny County Court of Common Pleas and thereby forcing estates located across the Commonwealth to come to Allegheny County to prove their individual damages. The forum may, indeed, seem inconvenient, but, upon careful consideration, we conclude that it is not.

Proof of damages would primarily consist of a showing of documents and not extended testimony from numerous sources. The trial court may also consider the use of Pa.R.Civ.P. 1006, allowing a change of venue for damage determinations should a party so move.

The trial court also supported its denial of certification on the ground that there was no risk of inconsistent adjudication in light of the Freeze decision, supra, and that there was no risk of other class members’ interests being impeded or foreclosed. In Janicik, supra, this Court said that:

Finding such risks is not essential to certifying the class, but ‘if they exist, they will be forceful arguments in support of the approval of the class action.’ The court below held that the principle of stare decisis and proper application of fundamental contract principles would eliminate any risks of inconsistent adjudications. Such reasoning ignores the rule’s exhortation to address this consideration “as a practical matter.” Courts may, and often do, differ in resolving similar questions presenting issues of law or fact. The precedential effect of a decision, even if incorrect, may have a chilling effect on the assertion of similar claims, and, combined with the expiring of statutes of limitation, may often “substantially impair or impede” potential litigants’ ability to protect their interests. Moreover, as with the related criteria concerning the complexity and expenses of litigation, Pa.R.Civ.P. 1708(a)(6), the court may consider the parties’ circumstances and respective ability to pursue separate actions. Appellee conducts business statewide and may thus be subject to inconsistent standards of conduct. Many class members, especially those with smaller claims, may be unable to afford the costs of protecting their interest through separate actions. All claims arise from interpretation of virtually identical contract language, so that even a small risk of inconsistent adjudications is unnecessary. The class action, when compared to separate actions under this criterion, affords the speedier and more comprehensive statewide determination of the claim, and thus, the better means to ensure recovery if the claim proves meritorious or to spare appellee repetitive piecemeal litigation if it does not.

Janicik, supra, 305 Pa.Super. at 143-44, 451 A.2d at 462-463 (citations and footnote omitted.)

For the reasons set forth in Janicik, we conclude that there are risks of inconsistent adjudications where several trial courts may be faced with seemingly identical cases and the resolution of one case may have a chilling effect on others. Such risks can be avoided here by a class action. Accord, Haft, supra.

Conclusion

In summary, we hold that common questions of law or fact predominate over any individual questions; there seems to be no size or management problems; separate actions could yield inconsistent adjudications and incompatible standards for appellee; and the forum is appropriate.

For these reasons we hold that a class action in this case would be a fair and efficient method of adjudication. Accordingly, we reverse, certify the class and remand for the case to go forward as a class action consistent with this opinion.

WIEAND, J., files a dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. I would affirm for the reasons set forth in the opinion of the trial court.

      . 40 P.S. § 1009.205(c).

      . Pennsylvania Rule of Civil Procedure 1710 "requires the court to file an opinion accompanying an order of certification or an order refusing to certify____ The opinion must set forth the basis for decision, including findings of fact, conclusions of law and appropriate discussion of the matters specified in Rules 1702, 1708 and 1709” which set forth the prerequisites and criteria for certification. See Explanatory Note to Pa.R.C.P. 1710. The requirements of Rule 1710 facilitate more meaningful appellate review.

      . Pa.R.Civ.P. 1701.

      . Pennsylvania’s revised class action rules are an attempt to blend the best features of both Federal Rule 23 governing class actions and the Uniform Class Action Act with some novel provisions not found in either. See Explanatory Note preceding Pa.R.Civ.P. 1701. Where Pennsylvania’s class action rules are fashioned upon or taken verbatim from the Federal Rule then federal case law is particularly instructive but not binding. Klemow, supra; McMonagle v. Allstate Insurance Co., 460 Pa. 159, 331 A.2d 467 (1975) (Spaeth, J. dissenting); Bell, supra, 465 Pa. at 231 n. 9, 348 A.2d 737 n. 9.

      . In deciding whether a class action would be a "fair and efficient method of adjudication” the trial court considered the criteria for such a determination as set forth in Pa.R.Civ.P. 1708(a);
      In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth in subdivisions (a), (b) and (c).

        (а) Where monetary recovery alone is sought, the court shall consider
      (1) whether common questions of law or fact predominate over any question affecting only individual members;
      (2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
      (3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
      (i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
      (ii) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
      (4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
      (5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
      (б) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
      (7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.

      . Pursuant to Pa.R.Civ.P. 1710(b), the trial court described the class in its opinion. Appellant would, if successful, represent the class of all unemployed retirees who at the time of death were receiving Social Security benefits. We concur in the narrowing of the class for proper representation based on common characteristics and issues.

      . As will be noted below, even if the trial court had correctly appraised the state of the law, it would not follow that a class action was improper.

      . It is Matza, supra, not Freeze which is relevant here.

      . See also Lillian v. Commonwealth of Pennsylvania, 467 Pa. 15, 354 A.2d 250 (1976); Klemow, supra; McMonagle, supra.

      . Of course, even if the amount of each individual’s damages happened to be identical, they might well require separate evidence of their existence.

      . Pa.R.Civ.P. 1710(c)(1).

      . Pa.R.Civ.P. 1710(c)(2).

      . Pa.R.Civ.P. 1714(a).

      . Pa.R.Civ.P. 1713(a).

      . The issue of liability can be separated from questions of individual damage when deciding if common issues of law or fact predominate over individual questions. City of Philadelphia v. American Oil Co., 53 F.R.D. 45, 67 (D.C.N.J.1971); Frankel v. Wyllie and Thornhill, Inc., 55 F.R.D. 330 (D.C.W.D.Va.1972). See also Kronenberg v. Hotel Clinton, Inc., 41 F.R.D. 42 (S.D.N.Y.1966); Eiser v. Carlisle and Jacquelin, 391 F.2d 555 (2nd Cir.1968); City of New York v. General Motors Corp., 60 F.R.D. 393 (S.D.N.Y.1973); American Trading and Production Corp. v. Fishback and Moore, Inc., 47 F.R.D. 155 (N.D.Ill.1969).
      For a discussion of the use of a bifurcated trial on liability and
      damages see Ouilette v. International Paper Co., 86 F.R.D. 476 (D.Vt. 1980); In re Plywood Antitrust Litigation, 76 F.R.D. 570 (E.D.La.1976); Sommers v. Abraham Lincoln Savings and Loan Assn., 66 F.R.D. 581 (E.D.Pa.1975); In re Master Key Antitrust Litigation, 70 F.R.D. 23 (D.Conn.1975), appeal dismissed, 528 F.2d 5 (2nd Cir.1975); American Trading and Production Corp., supra. See also, 7A C. Wright and A. Miller, Federal Practice and Procedure §§ 1783, 1790; 3 Newberg on Class Actions § 4640, n. 16; ALI-ABA Course of Study: Federal and State and State Class Action Litigation — Recent Developments at 220-4,231-49; Miller, An Overview of Federal Class Actions: Past, Present and Future at 56 (1977); 3B Moore’s Federal Practice 2nd ed. ¶ 23.45[3], n. 35 (1969); Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 831, 835 (1960-1); Bifurcation of Liability and Damages in Rule 23(b)(3) Class Actions: History, Policy, Problems, and a Solution, 36 S.W.L.J. 743 (1982); Of Legalized Blackmail and Legalized Theft: Consumer Class Actions and the Substance — Procedure Dilemma, 47 S.Cal.L.Rev. 842, 861-3 (1974); Reforming Federal Class Action Procedure: An Analysis of the Justice Department Proposal, 16 Harv.J.L. 543.

      . Pa.R.Civ.P. 1708(a)(5).

      . Pa.R.Civ.P. 1708(a)(5).

      . We note again that, if liability is established, damage calculations should be routine and likely a matter for out of court settlement.

      . The concept of considering the desirability of concentrating the litigation in a particular forum was borrowed from the federal statute. Newburg, supra, at Vol. 1, § 1160(d), states that such a concentration has two aspects: first, that it promotes judicial economy by concentrating claims in front of one court; and, second, venue consideration — whether the forum selected is the best forum to hear the claim. With the ability to transfer actions within the federal system, this factor should no longer have much force. In the case at bar there is no one Common Pleas Court which would be better to hear the action, and a limited trial on liability may obviate the concern for the forum’s convenience.

      . We note that Federal courts have disagreed with the rationale expressed in Janicik. In Goldman Theatres Inc. v. Paramount Film Corp., 49 F.R.D. 35, 41 (E.D.Pa.1969) a federal court stated that ‘‘[t]he drafters of Rule 23 ... did not intend to create a right to a class action simply because an opinion in one suit might be cited as precedent ... in another. If this were the rule, then almost every action would be susceptible of being brought as a class action." See also Richardson v. Hamilton International Corp., 62 F.R.D. 413, 420 (E.D.Pa.1974); Landau v. Chase Manhattan, 367 F.Supp. 992, 998 (S.D.N.Y.1973); Alsup v. Montgomery Ward and Co., 57 F.R.D. 89, 92 (N.D.Cal.1972).