author: WICKERSHAM, Judge:

text:
    485 A.2d 1170
    Kathleen McCRERY, Appellant, v. John SCIOLI and Gene’s Restaurant, Inc. and Sarah Capanna and Joseph Capanna.
    Superior Court of Pennsylvania.
    Argued May 10, 1984.
    Filed Dec. 12, 1984.

      Peter S. Kretzu, Philadelphia, for appellant.
    Edwin L. Scherlis, Philadelphia, for Gene’s, appellee.
    Allen H. Silverman, Philadelphia, for Capanna, appellees.
    Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying appellant McCrery’s motion to take off a nonsuit.

On February 3, 1978 at approximately 11:00 p.m., appellant, Kathleen McCrery Bennett, was seriously injured when the car in which she was a passenger hit a utility pole along Holme Avenue in Philadelphia. The driver of the car was appellant’s good friend at the time, Sarah Capanna. Appellant was 17 years old and Ms. Capanna 18 years old at the time of the accident.

On February 1, 1980, appellant filed a complaint in trespass against John Scioli [sic] and Gene’s Restaurant, Inc. In Count I, appellant charged negligence on the part of John Sciolla, in that he allegedly forced Ms. Capanna’s car off the road and into the pole. In Count II, appellant charged negligence on the part of Gene’s Restaurant, Inc., in that it served alcohol to a visibly intoxicated minor, Ms. Capanna, and as a consequence, shortly after leaving the bar, she was involved in the accident that left appellant with severe injuries. Thereafter, Gene’s Restaurant, Inc. joined Sarah Capanna and Joseph Capanna, Sarah’s father, as additional defendants. At some point before trial, John Sciolla was dismissed from the case.

Meanwhile, Gene’s Restaurant, Inc. filed a timely answer to appellant’s complaint, in which it declared that it was not the proper defendant in the action since it did not operate the facility, a bar and restaurant, or possess a liquor license; and that the owner of the liquor license and operator of the bar-restaurant was a distinct corporation named A.J. Sciolla, Gene’s on the Boulevard, Inc. This information was also provided to appellant by way of answers to interrogatories addressed to Gene’s Restaurant Inc., and by depositions taken of Anthony J. Sciolla and Anthony J. Sciolla, Jr., the president and vice president of both corporations.

Rather than seek to amend the complaint, appellant attempted to prove at trial in December 1982 that Gene’s Restaurant, Inc. was vicariously liable for appellant’s injuries because of its role as landlord of the premises. In addition, she entreated the trial judge to pierce the corporate veil and hold liable A.J. Sciolla, Gene’s on the Boulevard, Inc., the unnamed and distinct corporate entity, based upon Gene’s Restaurant, Inc.’s alleged misleading of appellant as to the identity of the proper defendant. These efforts proved to be unsuccessful. At the close of appellant’s case, upon motion of Gene’s Restaurant, Inc., the Honorable Harry A. Takiff entered a compulsory nonsuit in favor of Gene’s Restaurant, Inc. (and therefore the Capannas) against appellant. On November 17, 1983, after argument, Judge Takiff entered an order refusing to remove the compulsory nonsuit. This appeal timely followed.

Appellant raises five issues on appeal:

I. Can plaintiff sue Gene’s Restaurant, Inc. and recover on the basis that the defendant provided and permitted the consumption of alcoholic beverages by a minor and a visibly intoxicated minor even though defendant was not the liquor licensee of the premises but was the owner of the premises and whose president and vice president were actually stationed at the door and permitted the minor to enter the premises for the purpose of the consumption of liquor?
II. Did the trial judge err in not permitting answers to inquiries about the duties of the defendant as landlord of the premises?
III. Did the trial judge err in not disregarding the existence of separate corporate entities where the corporation sued was the former licensee; had the same officers; had a telephone listing; and whose name was Gene’s Restaurant, Inc. and corporate purpose was the dispensing of food and beverages yet purported to be only a landlord?
IV. Did the trial judge err in denying plaintiff’s motion for production of tax records and insurance policies of the defendant?
V. Was a non-suit proper in this case?

Brief for Appellant at 2-3.

Despite their apparent diversity, appellant’s issues all relate to the granting of the compulsory nonsuit against her. Nevertheless, we will briefly address issues 2 and 4 separately.

Appellant argues that the trial court erred in not permitting answers to her inquires about the duties of Gene’s Restaurant, Inc. as landlord of the premises. While questioning Anthony Sciolla, Sr. (who was president of both Gene’s Restaurant, Inc. and A.J. Sciolla, Gene’s on the Boulevard, Inc.), concerning the capacity in which he was present at the bar on the night in question, the following occurred:

Q. (Continued) Were you aware of any duty you had as a landlord of that particular property?
MR. SCHERLIS: Objection.
THE COURT: The objection is sustained.
Q. (Continued) As landlord of the property, did you have any power over the tenant in regard to the lease that you had with the tenant?
MR. SCHERLIS: Objection, Your Honor.
THE COURT: Objection is sustained. These call for legal conclusions. Unless you wish to qualify the witness, you are beginning to intrude on the. Court’s function.
MR. LUCARINI: I tried to ask him if he knew — The question here is duty. I’m asking him what he felt his duty was as a landlord.
THE COURT: That is a legal conclusion. You may ask him what he was doing there, and the balance is a matter for a legal conclusion to be drawn from this.
A. As landlord of this property—
THE COURT: He wasn’t the landlord of this property—
MR. LUCARINI: As president of the landlord.
THE. COURT: That is different.
MR. LUCARINI: Okay.
Q. (Continued) What was your function as president of the landlord of this property?
A. The function of the landlord, we leased the building to A.J. Sciolla, Gene’s on the Boulevard, and once a month we collect the rent. That was the function, the whole thing.
Q. You had no further function to oversee?
A. There was no other function. There were no employees, nothing else.
Q. To oversee what happened on the premises?
A. There was nothing to see what happened over there.
Q. You were physically there, were you not?
A. Yes, I was.
Q. As president of the landlord did you not have a duty to see that the business was operated properly, lawfully?
MR. SCHERLIS: Objection, Your Honor.
THE COURT: Sustained.

(N.T., December 7, 1982, at 74-76).

Generally, the admission or exclusion of evidence is within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983). It is also well settled that admission of incompetent opinion evidence which goes to the legal conclusions to be drawn by the factfinder constitutes reversible error. Taylor v. Fardink, 231 Pa.Super. 259, 331 A.2d 797 (1974). The conclusion that a duty exists is clearly a conclusion of law to by drawn by the factfinder. Therefore, the lower court correctly sustained the objections to those questions of appellant which called for the legal conclusion that the landlord corporation, Gene’s Restaurant, Inc., had a duty to see that the liquor licensee to whom it rented the building operated its business properly. Appellant was afforded ample opportunity to ascertain the duties of Gene’s Restaurant, Inc. as the landlord of the premises. Appellant did ask the witness the function of the landlord corporation and this question was fully responded to by the witness without objection. If appellant desired more information, he could have properly reframed his questions. The questions as asked, however, called for legal conclusions on the part of the witness and the trial court did not abuse its discretion in refusing to allow them.

Appellant also claims error in the denial of his motion for production of the tax records and insurance policies of Gene’s Restaurant, Inc. Approximately one month before trial, appellant filed a motion requesting an order requiring Anthony Sciolla, Sr. to appear for additional depositions and to produce tax and insurance records. This motion was denied.

The power of the trial court to enter an order to compel discovery is to be exercised at the court’s discretion. Pa.R.C.P. 4019. Appellant alleged in her motion that Anthony Sciolla, Sr. failed to appear for a deposition scheduled for October 22, 1982, with the requested tax and insurance information. Gene’s Restaurant, Inc. filed an answer to the motion and stated that no deposition was properly scheduled, or subpoena served. The answer further stated that both Anthony Sciolla, Sr. and Anthony Sciolla, Jr. had already been deposed, and that all the relevant information requested had been furnished in answers to interrogatories, in its response to appellant’s request for production of documents, and in the depositions of the Sciollas. We find no abuse of discretion in the trial court’s denial of the motion to produce the documents.

Furthermore, when Anthony Sciolla, Sr., testified at trial, he brought with him all the relevant tax and employee information requested by appellant. The record shows that the following transpired:

BY MR. LUCARINI:
Q. Did you receive a subpoena from me, sir?
A. Yes.
Q. Did you bring with you the tax records of that corporation?
A. Of who? Which one? A.J. Sciolla, Gene’s on the Boulevard?
Q. Yes.
A. Yes.
Q. In regard to the W-2 forms for the two bartenders that you mentioned—
A. Yes.
Q. —do you have them with you?
A. We have the tax returns. We have the Workmen’s Compensation and Social Security forms.
Q. For?
A. The employees.
Q. Dave Phillips and John Ambler?
A. That is correct.
THE COURT: Do you wish them produced at this time?
MR. LUCARINI: I just' wanted to know whether he had them, Your Honor.

(N.T., December 7, 1982 at 66-67). Appellant’s contention that had she been able to examine these corporate books and records, she could have presented sufficient evidence to pierce the corporate veil, is weakened by the fact that these very records were present in the courtroom and at no time did she request that the records be produced so she could examine them.

Appellant finally questions whether a compulsory nonsuit was proper. Related to this question is whether the'trial court should have pierced the corporate veil of Gene’s Restaurant, Inc., and/or whether Gene’s Restaurant, Inc. itself was liable for appellant’s injuries due to its position as owner of the premises.

In reviewing the propriety of a compulsory nonsuit, this Court will view the evidence in a light most favorable to the plaintiffs and give them the benefit of every reasonable inference arising therefrom. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 371, 372 A.2d 736, 740 (1977); Barney v. Foradas, 305 Pa.Super. 404, 407, 451 A.2d 710, 712 (1982); Adams v. Euliano, 299 Pa.Super. 348, 349-350, 445 A.2d 788, 789 (1982). A nonsuit can only be entered in a clear case. Barney v. Foradas, supra; Adams v. Euliano, supra; Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 403-404, 430 A.2d 665, 666-667 (1981).

Brouse v. Hauck, 330 Pa.Super. 58, 60, 478 A.2d 1348, 1350 (1984).

Based upon our review of the record and after drawing all reasonable inferences from the evidence therein, we agree with the lower court that no viable case of liability can be made out against the named defendant, Gene’s Restaurant, Inc., which was merely the corporate owner of the real estate. There is no legál basis upon which Gene’s Restaurant, Inc. could be found liable under the Pennsylvania Liquor Code or under any other theory.

As the lower court noted, Gene’s Restaurant, Inc. did not possess a liquor license, dispense alcoholic beverages, or employ any persons who dispensed liquor, and therefore cannot be liable for the dispensing of alcohol to Sarah Capanna, or any injuries to appellant resulting therefrom. Appellant sued a corporation that was incapable of the acts upon which its alleged liability was predicated. Even though a defendant is under no duty to inform the plaintiff whom he should sue, see Taylor v. Humble Oil and Refining Co., 225 Pa.Super. 177, 311 A.2d 324 (1973), prompt and frequent disclosure was made by Gene’s Restaurant, Inc.»of the name of the proper party against whom liability might lie in this case.

Nor was there any reason for the court to pierce the corporate veil. A bonafide Pennsylvania corporation is a distinct legal entity; this includes a corporation that is a licensee under the Pennsylvania Liquor Code. Commonwealth v. Price Bar, Inc., 203 Pa.Super. 481, 201 A.2d 221 (1964).

It is a well settled rule in Pennsylvania that a court will only disregard the existence of separate corporate entities in order to prevent fraud, illegality, or injustice, or when the recognition of the corporate entity would defeat public policy or shield someone from liability for a crime. Zubik v. Zubik, 384 F.2d 267, (3d Cir.1967), cert. denied, 390 U.S. 988 [88 S.Ct. 1183, 19 L.Ed.2d 1291] (1968); Sams v. Redevelopment Authority of City of New Kensington, 431 Pa. 240, 244 A.2d 779 (1968). Ordinarily, separate corporations retain their distinct identities .notwithstanding the fact that they may have common stockholders, directors, and officers. Shelburne Sportswear, Inc. v. City of Philadelphia, 422 Pa. 199, 220 A.2d 798 (1966). In the absence of the requisite allegations of fraud, illegality or injustice, or proof thereof, we can discern no basis for piercing the corporate veil.

Lower ct. op. at 4, n. 2. The sole purpose of Gene’s Restaurant, Inc. was the ownership of the real estate in which A.J. Sciolla, Gene’s on the Boulevard, Inc. conducted its restaurant-bar business, and the collection of rent from that corporation for occupying the premises. That both corporations had common officers and the same mailing address is irrelevant. The evidence clearly showed that the employees of the restaurant-bar worked for and were paid by A.J. Sciolla, Gene’s on the Boulevard, Inc. Anthony Sciolla, Sr. and Anthony Sciolla, Jr. were present at the bar on February 3, 1978 in their capacities as employees of A.J. Sciolla, Gene’s on the Boulevard, Inc. only. Gene’s Restaurant, Inc. and Gene’s on the Boulevard were listed separately* and had separate phone numbers in the telephone book. We find no representation to the public that Gene’s Restaurant, Inc. was operating the bar.

Similarly, there was no error in refusing to hold Gene’s Restaurant, Inc., liable for appellant’s injuries due to its status as landlord of A.J. Sciolla, Gene’s on the Boulevard, Inc. Appellant’s theory of liability at trial was based upon Section 4-493(1) of the Pennsylvania Liquor Code, 47 P.S. § 4-493(1), which states that it shall be unlawful for

any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, ... or to any minor, ____

The testimony at trial clearly showed that Gene’s Restaurant, Inc., had no employees and was not involved in the sale or distribution of liquor. However, appellant argues that Gene’s Restaurant, Inc. is liable as “any other person,” and cites as support the recent decision in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983).

In Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973), the Pennsylvania Supreme Court held that civil liability cannot be imposed on unlicensed persons who furnish alcohol for no remuneration. The Liquor Code has no impact or effect on the owner of the building in which the liquor licensee does business; nor is the owner mentioned in the possible categories of “other persons.” See 47 P.S. § 4-493. Ten years later, the same court held in Congini, supra, that a social host is negligent per se in serving alcohol to the point of intoxication to a minor and can be held liable for injuries proximately caused by the minor’s intoxication. However, Congini was brought under two sections of the Pennsylvania Crimes Code rather than the Liquor Code; the Congini court acknowledged this difference and stated that it was not departing from the holding in Manning. Id. 504 Pa. at 163, n. 3, 470 A.2d at 518, n. 3. See also Douglas v. Schwenk, 330 Pa.Super. 392, 479 A.2d 608 (1984). The court in Congini had before it a. completely different set of facts and theory of liability than those in the instant case.

-In her appellate brief, appellant attempts to raise for the first time Sections 306 and 6308 of the Pennsylvania Crimes Code as bases for liability of Gene’s Restaurant, Inc. It is well settled that a different theory of relief cannot be successfully advanced for the first time on appeal. Morgan v. Sbarbaro, 307 Pa.Super. 308, 453 A.2d 598 (1982); In re S.C., 280 Pa.Super. 539, 421 A.2d 853 (1980); Canter v. Canter, 238 Pa.Super. 347, 357 A.2d 659 (1976).

We hold that the lower court did not err in refusing to remove the compulsory nonsuit in favor of Gene’s Restaurant, Inc., the named defendant. Order is affirmed.

      . Appellant has married since initiation of this suit.

      . The actual name of the individual defendant is John Sciolla. By coincidence of otherwise, John Sciolla is the son of Anthony J. Sciolla, who was, at the time of the accident, president of both Gene's Restaurant Inc. and A.J. Sciolla, Gene's on the Boulevard, Inc., the two corporations involved in this case.

      . At the time of the incident, Gene’s Restaurant Inc.’s only apparent role was as owner of the building in which A.J. Sciolla, Gene’s on the Boulevard, Inc. operated the restaurant and bar.

      . Furthermore, we note that Congini, supra, examined an argument similar to the one appellant raises herein, that defendants breached a duty as a landowner to the plaintiff, and found that a possessor of land is not liable to a licensee (the minor) in the absence of willful and wanton injury. As in Congini, such willful and wanton injury was not pleaded by appellant herein.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    485 A.2d 1176
    Barton L. POST, Appellant, v. M. Mark MENDEL.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1984.
    Filed Dec. 12, 1984.
    Petition for Allowance of Appeal Granted July 10, 1985.

      William F. Sullivan, Jr., Philadelphia, for appellant.
    Daniel E. Murray, Philadelphia, for appellee.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order entered by the Court of Common Pleas of Philadelphia County in response to a complaint in trespass filed by the plaintiff-appellant (Barton L. Post, Esquire). We affirm in part and quash in part.

We commence our discussion with the appellant’s filing of a 2-count amended complaint against the defendant-appellee (M. Mark Mendel, Esquire). The first count sounded in libel and the second in slander, and in each the plaintiff sought in excess of $20,000 for compensatory damages as well as an equal amount in punitive or exemplary damages.

In particular, the libel section averred the composition of a defamatory letter by the defendant, copies of which were mailed to a Bucks County judge (before whom the two were embroiled in litigation as opposing counsel), to the Disciplinary Board of the Supreme Court of Pennsylvania and to a William H. Simon, M.D., a supposed client of the plaintiff and a witness in the on-going Bucks County suit. The letter, with the legend “M. MARK MENDEL, LTD.” and a listing of the 7-member firm, read:

September 17, 1981
Barton L. Post, Esquire
Post and Schell
12th Floor
210 West Washington Square
Philadelphia, Pa. 19106
Re: Your Conduct During The Course of This Trial.
Dear Mr. Post:
I have allowed the heat of anger to pass and under calm reflection, I have re-assessed what you did during the course of the examination of Dr. Beller when you insinuated that the doctor had two different reports and that there were two different reports, attempted to convey to the jury by use of the reports that the doctor had done an unethical act by writing two different reports when, in fact, you knew that there were two different reports, one being a supplement to the other. One was requested at the insistence of your partner, Mr. Arthur Toensmeir, and while Dr. Beller was testifying, you objected to my straightening the matter out, refused to stipulate that the three'letters, which are now Court exhibits (Nos. 1, 2 and 3) existed, and refused to stipulate, compounding your nefarious tactics in violation of the Canons in that those letters existed. Thus, your refusal to acknowledge what you had done was a patent, deceptive, nefarious act, calculated to deceive the Court and mislead the jury. There have been since that occurrence five trial days since you comported yourself in an unlawyerlike manner and have now compounded the matter by not only deceiving the Court, but allowing an expert to perjure himself with your assistance and aid. While Dr. Simon was on the stand, upon inquiry whether or not you represented him, you engaged and asked the Court to give him certain instructions or that you wished to confer with him. Dr. Simon elected, after the Court gave him an opportunity to indicate and candidly reveal your representation of him, a fact which would effect his prejudice and bias, to deny such representation when, in fact, you have represented him since March 5, 1981, in the matter of Mildred Wilson v. William H. Simon et al., Court of Common Pleas of Philadelphia County, February Term 1981, No. 4306. You stood idly by while the jury and the Court were deceived. As an officer of the Court, that conduct is abhorrent and is a violation of four Canons — D.R. 1-101 —maintaining of integrity and competence of the profession; D.R. 7-102, Sections 3, 4 and 5, wherein you concealed and knowingly failed to disclose that which you are required by law to reveal where you knowingly used pequred testimony or false evidence and where you knowingly in your presence allowed a false statement of law and fact, and remained silent.
Under the circumstances, I hereby notice [sic] you that I intend to proceed with this matter to the Disciplinary Board irrespective of any outcome of this case. As an officer of the Court, I do not choose to practice with individuals who comport themselves in this manner and you are not fit to share a court room with any lawyer who at least has sufficient respect for the law to be at all times candid.
You may not like my style, but I do not lie, sir — something that you, throughout this trial, have done. This serves notice on you. Since you have said that I “try by intimidation,” I assure you this is not intimidation; this is simply an obligation which I, as an officer of the Court, must fulfill so that piranhas like you are removed from the practice of law.
Respectfully,
/s/ M. Mark Mendel
M. Mark Mendel
MMM/cb
cc: Disciplinary Board of the Supreme Court
Honorable George T. Kelton
William H. Simon, M.D.
As for the content of the slander count, the plaintiff asserted, in relevant part, that:
14. .. at various times and various places during September and October of 1981 defendant orally made statements that were slanderous and defamatory of plaintiff including statements that defendant [sic — plaintiff] in the course of the practice of his legal profession was guilty of nefarious tactics, had intentionally attempted to deceive the Court of Common Pleas of Bucks County and a judge and a jury of that Court, had acted in an unlawyerlike manner, had permitted and encouraged the commission of perjury, that plaintiff was a liar and that plaintiff had lied throughout the course of the trial, that plaintiff lacked the integrity required of those practicing [in] the legal profession, that plaintiff was unfit to practice his profession, and that plaintiff had knowingly presented and used perjured testimony.
15. Plaintiff is advised, believes, and avers that the aforesaid statements were made, inter alia, to other attorneys and to officers and employees of the Court of Common Pleas of Bucks County, whose identities are presently unknown to plaintiff, outside of the course and of the proceedings of the trial referred to [as Edwards v. Hansen, CP Bucks County No. 76-2100-03-2 and being heard by Judge Kelton], from on or about September 16, 1981 to on or about September 25, 1981, and at various times which are at present unknown to plaintiff including inter alia at and during the Bench Bar Conference and thereafter, to various other members of the legal profession and to persons who were clients or potential clients of plaintiff or who had or potentially might have professional associations with plaintiff, the identities of those members and other persons being presently unknown to plaintiff.

The defendant filed preliminary objections in the nature of a demurrer arguing that the “alleged defamatory words [were] absolutely privileged in that they were disclosed in connection with a judicial proceeding.” The court agreed that this was applicable to count I (libel), citing Anno., Libel and Slander: Out-of-Court Communications Between Attorneys Made Preparatory To, Or In The Course Or Aftermath Of, Civil Judicial Proceedings As Privileged, 36 A.L.R.3d 1328, and dismissed with prejudice that portion of the amended complaint.

However, as to count II (slander), the court felt it proper to afford the plaintiff the opportunity to amend the complaint “with respect to the time and place of the alleged defamatory remarks, and to whom said remarks were published ____” This appeal followed.

The first issue to be addressed concerns count I (libel) and whether that portion of the court’s order finding the defamatory matter alleged in the letter absolutely privileged to be a correct assessment. See Dempsky v. Double, 386 Pa. 542, 126 A.2d 915 (1956). We believe it to be.

Whether an attorney’s written communication outside the confines of the courtroom is covered by an absolute privilege appears to be a question of limited review in Pennsylvania. It is not, however, a novel question. See Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984).

The Restatement (Second) of Torts, § 586, provides:

An attorney at law is absolutely privileged to publish defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding in which he participates as counsel, if it has some relation thereto.

Likewise, at 53 C.J.S., Libel and Slander, § 104(7) (“Communications by Counsel”) it is written:

... the general rule is that whatever is published by counsel in a legal proceeding, material, pertinent, or relevant to the matter in controversy is absolutely privileged and no action can be maintained on it, even though false and actuated by improper motives, or vituperative and exaggerated____
* * * * * . *
... it is not absolutely essential, in order to obtain the benefits of the privilege, that the language be spoken in open court or contained in a pleading, brief, or affidavit; and the privilege has been held to extend to a letter written by counsel to an opposing party relating to discontinuance and release of the cause of action, even though such letter was written spontaneously, and not in response to any communication received. (Footnotes omitted)

This view was echoed by the Supreme Court of Idaho in a case strikingly similar to the one at bar. In sustaining the district court’s grant of defendant’s general demurrer to the complaint for libel, the Idaho Court stated:

The reason for the rule [in 3 Restatement of the Law of Torts, 229, Sec. 586—now located at the same section in the Restatement (Second) of the Law of Torts,] is one of public policy in which the law recognizes certain communications as privileged and cannot be used as the basis of actionable libel.
If litigants and attorneys were not privileged in their allegations in judicial proceedings, or if they were to be subjected to prosecution for libel under such circumstances as are here presented, justice would often be defeated.
Proceedings connected with judicature of the country are so important to the public good it is only in extreme cases and circumstances that a libelous publication in a judicial proceeding can be used as the basis for damages in a libel suit. Holdings in which a recovery has been allowed where privilege was pleaded as a defense are not applicable to the circumstances presented.

Richeson v. Kessler, 73 Idaho 548, 552, 255 P.2d 707, 709 (1953). Accord Simon v. Potts, 33 Misc.2d 183, 225 N.Y.S.2d 690 (1962).

In Pennsylvania, this philosophy of permitting libel and slander to go unpunished when privileged is permised upon the theory that it is better that an individual be harmed than the public go uninformed about public business. Biggans v. Foglietta, 403 Pa. 510, 511, 170 A.2d 345, 346 (1961). Certainly, as noted by our Supreme Court in the context of “pleadings”, “[pjublic policy requires this, even if [sic-though] at times the privilege of immunity for false and malicious averments in pleadings is abused. Justice can be administered only when parties are permitted to plead freely in the courts and to aver whatever ought to be known without fear of consequences, if a material and pertinent averment should not be sustained. Wrong may at times be done to a defamed party, but it is damnum absque injuria. The inconvenience of the individual must yield to a rule for the good of the general public.” Kemper v. Fort, 219 Pa. 85, 93-94, 67 A. 991 (1907).

As cited to in Kemper, this rule of absolute immunity from suit for libel is applicable “only when the defamatory words are relevant'and pertinent to the matter or matters to be inquired into by the court____” 219 Pa. at 93, 67 A. 991. “Where the question of the relevancy and pertinency of matters alleged in pleadings is to be inquired into,” the same Court went on to say, “all doubt should be resolved in favor of relevancy and pertinency.” 219 Pa. at 94, 67 A. 991. See also Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied sub nom. Scarselletti v. Aetna Casualty & Surety Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968); Rose v. Wissinger, 294 Pa.Super. 265, 439 A.2d 1193 (1982) and compare with Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927 (1977); Miller v. Hubbard, 205 Pa.Super. 111, 207 A.2d 913 (1965).

We see no reason why the cloak of immunity should not also be draped over an attorney’s communications with the court before whom he is litigating, provided, of course, the matter is relevant and pertinent to the dispute being heard. Simon v. Potts, supra; Richeson v. Kessler, supra; Greenberg v. Aetna Insurance Co., supra; 53 C.J.S., Libel and Slander, § 104(7).

To assist us in determining relevancy, we need not inquire into the truth of the writing complained-of; for if the writing was relevant, it was absolutely privileged, and a person who is absolutely privileged is immune from financial liability even if his statement is a knowing and malicious falsehood. Jennings v. Cronin, 256 Pa.Super. 398, 401, 389 A.2d 1183, 1185 (1978).

We find that Attorney Mendel’s communique, having occurred during the course of trial and having dealt with purportedly perjurious testimony, was relevant and pertinent to the litigation, and, thus, absolutely privileged. Richeson v. Kessler, supra. It cannot be doubted that “if all of the statements made by the defendant[-attorney] ... in his letter ... had been made in open Court they would have been held to be pertinent and privileged.” Simon v. Potts, supra, 225 N.Y.S.2d at 700. Thus, it follows that in the case at bar the witness-Dr. William H. Simon, whose testimony was at issue, had a common interest in the controversy (claim of perjury) that occasioned the letter, since he could be the object of a perjury charge (18 Pa.C.S.A. § 4902). See generally Larmour v. Campanale, 96 Cal.App.3d 566, 158 Cal.Rptr. 143 (1979); Romero v. Prince, 85 N.M. 474, 513 P.2d 717 (1973); Rankin v. Phillippe, 206 Pa.Super. 27, 211 A.2d 56 (1965). Accordingly, the privilege was not lost by the defendant-attorney sending a copy of the letter to Dr. Simon.

Nor do we find that the immunity was neutralized by the same letter being forwarded to the Disciplinary Board of the Supreme Court of Pennsylvania. See Prosser, The Law of Torts, § 114 at 779-780 (4th Ed.1971); Note, Attorneys’ Remedies Against False Accusations of Unethical Practices, 32 Temp.L.Q. 415, 416 (1959); cf. Sullivan v. Birmingham, 11 Mass.App. 359, 416 N.E.2d 528, 534 (1981) (“The Canons of Ethics and Disciplinary Rules provide standards of professional conduct of attorneys and not grounds for civil liability.”).

Turning now to that part of the order appealed covering count II (slander), we find it to be interlocutory.

To begin with, we observe that the law of defamation has led to the survival until the present day of two forms of action for defamatory publications: Libel, which originally concerned written or printed words; the other slander, was usually of an oral character. Prosser, The Law of Torts, § 112 at 751 (4th Ed.1971); Western States Title Insurance Co. v. Warnock, 18 Utah 2d 70, 415 P.2d 316 (1966).

Instantly, the appellant’s 2-count complaint in trespass dealt with separate causes of action. One in libel, as to letters allegedly defaming the appellant; the second, in slander, covered statements supposedly made by the appellant to individuals other than those referred to in count I (libel). Thus, the two counts are not theories in support of recovery for defamation “arising out of the same transaction.” J.A. & W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 470, 350 A.2d 858, 861 (1976); see also Canulli v. Allstate Insurance Co., 315 Pa.Super. 460, 462 A.2d 286 (1983); Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).

Therefore, it is abundantly clear to us that the trial court’s order does not dispose of the entire case or otherwise end the litigation. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). The appellant is not “out of court” since he still may pursue his claim for damages based upon slander (count II), once he amends his complaint to clarify when, where and to whom the statements were made. See Itri v. Lewis, 281 Pa.Super. 521, 422 A.2d 591 (1980). This requirement is not dispensed with by the appellant’s argument that such inquiry can be made, and the information secured brought to the trial court’s attention, after discovery proceedings.

Any information subsequently supplied by the defendant, for instance, during discovery (e.g., depositions) requested by the plaintiff cannot be used to supply the missing allegata of the complaint in trespass. “The sufficiency of the Complaint is governed by the facts alleged therein and the fact that the lacking information subsequently was or could be supplied is not governing.” Gross v. United Engineers and Constructors, Inc., 224 Pa.Super. 233, 235, 302 A.2d 370, 371 (1973).

Consequently, based on the aforesaid, we find the trial court’s order dismissing count II (slander) to be interlocutory. See Stengena v. Madden, 291 Pa.Super. 364, 435 A.2d 1269 (1981); Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 430 A.2d 321 (1981).

Accordingly, we affirm that portion of the order of the court below as to count I (libel); as for count II (slander) of the same order, we quash.

      . There has likely never been a practitioner who has not experienced chagrin, distress and outrage at the hands of an adversary. Certain adversaries are particularly skilled at triggering such a reaction and even rely upon it as an instrument of the profession. However, it ill serves the profession generally, outraged counsel specifically, and his cause particularly, when retort is served in so reprehensible a fashion.
      We are, therefore, somewhat inclined to observe that while the communique of counsel is privileged, we do not condone and, in fact, view with disfavor the manner of his expression of his grievance.


text:
    485 A.2d 1182
    Christina CRIBB, Carolyn Battle, Veronica Ricks, John Watkins, on behalf of themselves and all others similarly situated and Carol Dantzler, Proposed Intervenor, Appellants, v. UNITED HEALTH CLUBS INCORPORATED, and National Credit Corporation.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1984.
    Filed Dec. 12, 1984.
    Reargument Denied Jan. 28, 1985.
    Petition for Allowance of Appeal Denied June 17, 1985.

      Theodore Clattenburg, Jr., Philadelphia, for appellants. Robert W. Maris, Philadelphia,- for appellees.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the June 8, 1983 Order of the Court of Common Pleas of Philadelphia County denying appellants’ Motion for Class Certification. We affirm.

Appellants, Christina Cribb, Carolyn Battle, Veronica Ricks and John Watkins, filed a class action complaint in equity against appellees, United Health Clubs, Inc. (“United”) and National Credit Corp. (“National”). United operates health spa facilities and National serves as United’s collection agency for spa memberships purchased on credit terms. The Complaint contained three counts alleging: 1) violation of the Federal Truth-In-Lending Act and Regulations; 2) violation of the Pennsylvania Goods and Services Installment Sales Act (GSISA) and, the Pennsylvania Usury Law; and 3) violations of the Pennsylvania Unfair Trade Practices Act. After a hearing on the issue of class certification, the trial court issued an order denying such and this appeal followed.

A decision concerning class certification is a mixed finding of law and fact. The trial court’s order in such cases will not be disturbed on appeal unless there was a failure to consider the requirements for certification or an abuse of discretion. ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa.Super. 219, 438 A.2d 616 (1981).

There are five prerequisites to maintaining a class action. One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.
Pa.R.C.P. 1702

The trial court held that appellants failed to meet the first three of these requirements and therefore found it unnecessary to examine the fourth and fifth criteria.

Appellants, in their complaint sought to represent “all customers” of United. The trial court found the definition of the class itself had not been properly established and, therefore, the first prerequisite of Pa.R.C.P. 1702, which is numerosity, could not possibly be met if the court could not even discern who was a potential- members of the class. Appellants argue the complaint, when considered in its entirety in conjunction with the other record evidence, established the general class consisting of all credit customers of United. Appellants further contend the court abused its discretion in failing to establish various sub-classes. We do not agree.

United has only one form of credit membership, a three-year membership. The price for a three year membership is $825.00. National serves as the collection agency for payments made under credit memberships. National also makes the initial determination as to whether credit will be extended to particular individuals.

United obtains its members primarily through referrals by existing members as United does not engage in television, radio or newspaper advertising. United does provide various incentives, such as its “permanent executive membership” which eliminates the yearly renewal fee for members who sponsor four new members within any 60 day period; the “family membership” which offers relatives of members a 25% discount; and, “guest passes” which permits members to invite guests for a one-time free visit to the spa.

Appellants’ claim under the GSISA and the Usury Law alleges hidden and excessive interest charges. In their complaint, appellants aver that the fact that United assigns its contracts to National at discount constitutes a hidden finance charge. They further argue another hidden finance charge, since cash members receive one free renewal after the original three year membership expires and credit members do not receive this free renewal.

The alleged injury would be suffered by all members of the proposed general class with no need to refer to subclasses; however, under the GSISA and Usury Law, unless the violations are willful, a fact not contained in this pleading, recovery is only permitted as to charges or usurious interest paid by the buyer. See 69 P.S. § 2202 and 41 P.S. § 502. Appellant Cribbs’ credit membership was turned down by National. Appellant Ricks made no monthly payments. They have therefore paid no interest charges. Appellants Battle and Watkins have similarly terminated their contracts. Any money damages would be de minim-is.

The trial court found the status of the contractual relationship between all four of the named appellants and United to be critical and found the class action was actually an attempt by each to gain leverage in their own contractual disputes — United having filed counterclaims seeking payment under the contracts. While we will not speculate as to any motivation in filing a class action suit, we also cannot rule appellants are proper representatives of their class.

Appellants argue the trial court, when ruling on the certification issue, impermissibly ruled on the merits by finding them to be in default on the underlying contract. However, the trial court was not deciding the substantive issues but permissibly looking at the status of appellants as representatives of the class of credit customers. We have said:

The typicality requirement is closely akin to the requirements of commonality and the adequacy of representation. Ablin, Inc. v. Bell Telephone Co. of Pennsylvania, supra 291 Pa.Superior Ct. [40] at 40, 435 A.2d [208] at 212 [(1981)]. Its purpose is to determine whether the class representative’s overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that her pursuit of her own interests will advance those of the proposed class members. Id.; Piel v. National Semiconductor Corp., supra [86 F.R.D. 357 (1980)]. Accord, Luitweiler v. Northchester Corp., supra 456 Pa. [530] at 534, 319 A.2d [899] at 902 [ (1974) ] (must appear that relief sought beneficial to all class members); Penn Galvanizing Co. v. Philadelphia, supra 388 Pa. [370] at 378, 130 A.2d [511] at 595 [ (1957) ] (same).
Janicik v. Providential Insurance Co. of America, 305 Pa.Super. 120, 134, 451 A.2d 451, 457-58 (1982) (footnote omitted).

Appellants raise nine different claims under the Pennsylvania Consumer Protection Law. Some of these claims pertain to the. inducements offered such as “permanent executive membership” and “family memberships”. Such claims only apply to certain subclasses of credit members, e.g. those who qualified for the permanent executive membership by recruiting the four additional members or those who purchased discounts under family memberships. Other consumer protection claimjs are concerned with United’s cancellation procedures in Refusing termination through medical or economic hardships. These claims apply to other subclasses, e.g. those who have applied for medical or economic cancellations. Still other of these claims, such as appellees’ debt collection procedures involve yet other subclasses. Appellants have not provided any figures as to possible numbers of members of these subclasses, nor has there been any mention as to how many members would be in default. Appellants interests parallel only the interests of this unspecified percentage of either the general class or various subclasses who are also in default.

We recognize that factual differences with regard to each member of the class does not render the named parties’ claims atypical of the class as a whole. Albin, Inc. v. Bell Telephone Co. of Pennsylvania, supra. Yet neither the complaint, nor the record evidence has established any data, guidelines or definitions of these nebulous subclasses. We cannot therefore find error in the ruling of the trial court that common questions of fact and law did not predominate over the questions affecting individual members. Klemow v. Time, Inc., 466 Pa. 189, 352 A.2d 12 (1976).

Appellants have espoused a third theory for class action recovery, that being under the federal Truth-In-Lending statute. We note that class actions are properly cognizable to redress violations of this Act, See Dzadovsky v. Lyons Ford Sales, Inc., 593 F.2d 538 (3d Cir.1979). However, given our disposition that appellants should not be certified .to represent a class action concerning their state claims, we decline to rule on the remaining federal claim and leave appellants free to pursue any. recourse they feel necessary in the proper forum.

Appellants argue the trial judge abused his discretion by deciding the class certification issue without benefit of oral argument. At the conclusion of the certification hearing, the judge stated he would schedule oral argument if either party so requested. A month later, appellants requested oral argument. The trial court never acted on this request, but some 13 months later, issued the order from which this appeal was taken. There is no dispute that appellants received a full hearing as required by the rules of civil procedure, and appellants do not argue the rules entitle them to oral argument. Rather, they feel the trial judge was committed to granting oral argument because he had previously stated he would so grant. Appellants did not amend their complaint during this time frame, nor do they point to any additional facts or law which they would have included at oral argument. They instead state oral argument “could have been helpful” in clarifying the issues. Given these facts, we cannot find it to be an abuse of discretion to fail to grant argument even in light of the judge’s earlier indication that he would schedule such argument.

Appellants raise an additional issue concerning a Petition to Intervene filed by one Carol Dantzler. Carol Dantzler was also a credit customer of United who defaulted on her contract after United refused to cancel her membership based upon her economic hardship request. No action has been taken by the trial court concerning this petition. Appellants request us to view such non-action as a denial .of the petition and review such denial as part of this appeal. This we cannot do. Pa.R.A.P. 341. If the trial' court had already granted this petition, it still would not have altered our decision in affirming the denial of class certification. Appellate review of the petition to intervene is premature at this point since the trial court still must rule on whether Carol Dantzler may proceed in her own right as a named party.

Order affirmed.


author: PER CURIAM: McEWEN, Judge,

text:
    485 A.2d 1186
    COMMONWEALTH of Pennsylvania v. John JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1983.
    Filed Dec. 12, 1984.
    Petition for Allowance of Appeal Granted May 14, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, HESTER and LIPEZ, JJ.
   PER CURIAM:

A complaint was filed on June 24, 1980, charging appellant John Jackson with simple assault and burglary. Under Pa.R.Crim.P. 1100, December 22, 1980, would have been the last day for the Commonwealth to try appellant. Due to two continuances granted to appellant, the final day for trial was extended to January 23, 1981. Trial was set for December 11, 1980; however, on that date, the Commonwealth’s complaining witness failed to appear, and the case was relisted for January 28, 1981. On December 18, 1980, prior to the expiration of the original 180-day period, the Commonwealth filed a Petition for Extension under Rule 1100(c). A hearing was held on the Commonwealth’s petition on January 20, 1981, at which time the Commonwealth’s petition was granted, and an extension was granted until January 29, 1981. Appellant was tried non-jury on January 28, 1981, and was found guilty of simple assault and burglary. Timely post-trial motions were filed' and denied, and on April 6, 1982, appellant was sentenced to time served to five years on the burglary conviction, with one year of probation running concurrently on the assault conviction.

On appeal to our Court, appellant first argues that the Commonwealth failed to exercise due diligence in bringing appellant’s case to trial within the time required by Pa.R.Crim.P. 1100. It is apparent from the notes of testimony of the hearing on the Commonwealth’s petition for extension of time that most of the delay in bringing the case to trial was attributable to appellant, and to the failure of the Commonwealth’s subpoenaed complaining witness to appear on December 11, 1980; however, since appellant did not raise this issue specifically in his post-verdict motions, we will not consider the issue on appeal. Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983).

The second part of appellant’s argument is more troublesome. Appellant argues that there is nothing on record to show that the case was scheduled for the earliest possible date consistent with the court’s business. As a panel of our Court noted in Commonwealth v. Freeman, 280 Pa.Super. 462, 467, 421 A.2d 814, 816 (1980), “Mayfield’s requirement that the record show that the trial was scheduled for the earliest date consistent with the court’s business has been strictly applied.” Our examination of the record in the case before us has disclosed no such certification. The closest thing to such certification is an allegation by the Commonwealth in its petition for extension of time that the Commonwealth on December 11, 1980, requested the “earliest possible date.”

In reviewing a hearing court’s ruling that the Commonwealth has met its burden, however, we will view the record as a whole. Commonwealth v. Freeman, supra. Unfortunately, an important part of the record has not been provided our Court. The notes of testimony of the December 11, 1980 proceeding have not been included with the original record. At that proceeding, the lower court evidently granted the Commonwealth a continuance until January 28, 1981. It is possible that the Commonwealth carried its burden or that appellant and his counsel sat idly by while the trial judge announced a trial date beyond the last day that appellant, under Rule 1100, could be tried, thereby, under Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981), waiving appellant’s Rule 1100 rights. Or perhaps appellant or counsel was more assertive in approving the scheduling of trial beyond the rúndate. See Commonwealth v. Lee, 297 Pa.Super. 216, 443 A.2d 804 (1982).

These possibilities, however, do not support the Commonwealth’s position, and we will not remand for an evidentiary hearing to determine waiver or whether the Commonwealth carried its burden of proving the commencement of trial on the earliest possible date. In Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 (1984), this Court ruled that the Commonwealth has the burden to prove that it exercised due diligence in bringing the accused to trial at the earliest possible moment. Where there is insufficient evidence that the Commonwealth carried this burden, it must prove that the accused waived his right to speedy trial. Therefore, the Donaldson court opined:

____ it would be procedurally incorrect to remand this case for an evidentiary hearing to establish whether appellant or his attorney objected to the continuance. Aside from the fact that the Commonwealth did not allege to the court below that appellant had waived his Rule 1100 rights, we cannot place the burden on the appellant to prove that he did not waive his Rule 1100 rights without a prima facie showing of a valid waiver.

Id., 334 Pa.Super. at 483, 483 A.2d at 555.

For the above reasons, we are constrained to reverse and vacate judgment of sentence. Appellant discharged.

McEWEN, J., filed a concurring opinion.

McEWEN, Judge,

concurring:

The excellent expression of the majority view reflects a quite careful analysis of the issue and I agree that the record in the instant case fails to reflect compliance with Rule 1100. I write simply to observe that, in my view, the Supreme Court in Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984), declared that the Rule 1100(c)(4) requirement that any scheduled trial date after the expiration of 180 days need be “the earliest date possible” is met if the record reflects either (1) presentation by the prosecution of sufficient evidence to form the basis for a conclusion by the court that the scheduled date is the “earliest possible date”, or (2) a declaration by the hearing judge that such conclusion has been made as a matter of judicial notice.

In Terfinko, supra, the Supreme Court refused to find a violation of Rule 1100 even though, as in the instant case, the record did not expressly contain such a declaration or certification by the hearing judge. Rather, the Court utilized a “totality of the circumstances review” and found that the rescheduled date met the mandate of Rule 1100(c)(4) where the record amply established that the trial court “devoted a reasonable amount of its resources to the criminal docket and that it scheduled the criminal trial [for] the earliest possible date consistent with the court’s business.” Commonwealth v. Terfinko, supra, 504 Pa. at 392, 474 A.2d at 279.

The record here, however, is devoid of any evidence that would indicate that the extended trial date was the earliest date consistent with the business of the court. Nor does the record reflect a declaration to that effect by the hearing judge. Thus, neither method of compliance afforded by Terfinko, supra, has been achieved. It is for that reason that I join in the order vacating the judgment of sentence.

      . December 21, 1980 was the 180th day; however, since that was a Sunday, the last day for trial became December 22, 1980. In adding the 33 days chargeable to the defendant to December 22 thereby extending the last day for trial to January 24, 1981, the parties erred. Thirty-three days should have been added from December 21, 1980.

        . Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976).

      . The issues involved in this appeal are identical to those in Commonwealth v. Donaldson. Donaldson was argued before a Court en banc. It was decided not to adjudicate the issues involved in this appeal until receipt of the opinion in Donaldson. Donaldson was filed on October 12, 1984.

      . Testimony was elicited in Terfinko both from the Lehigh County Deputy Court Administrator as well as from a member of the staff of the Clerk of Court. This testimony demonstrated the limited availability of judges and court rooms during the trial court sessions when appellant was scheduled for trial.


text:
    485 A.2d 1189
    Dennis T. HAAG v. Donna J. HAAG, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1984.
    Filed Dec. 14, 1984.

      Robert C. Rowe, Lebanon, for appellant.
    Keith L. Kilgore, Lebanon, for appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   WICKERSHAM, Judge:

In this case, we are presented with the difficult question of which parent should have primary custody of their minor child. This appeal is taken from the order of the Court of Common Pleas of Lebanon County granting primary custody of Douglas Haag to his father, Dennis T. Haag. Appellant is the boy’s mother, Donna J. Haag.

Dennis (hereinafter “Father”) and Donna (hereinafter “Mother”) were married in April of 1965. Two children were born of the marriage: Denise, presently aged 18 and Douglas, presently aged 10. The marriage was troubled, and on July 21, 1981, mother left the marital home, taking with her some personal items and Douglas. Upon her return from a vacation, Denise remained with Father. Shortly thereafter, the parties entered into a consent agreement for custody, visitation, and support, whereby the custody of Douglas would be with Mother and the custody of Denise would be with Father. In November of 1981, Father began divorce proceedings against Mother.

In February of 1982, Father apparently changed his mind and filed a petition for custody of Douglas with the Court of Common Pleas of Lebanon County. A conference was scheduled and held on February 26, 1982, but left the question of Douglas’ custody unresolved. Home studies of both parties were conducted, and on August 11, 1982, a hearing was held before the Honorable G. Thomas Gates, P.J. Psychological testing and evaluation was ordered and taken of Mother, Father, Denise, and Douglas. After the filing of the psychological reports of the family, another hearing was held before Judge Gates on November 24, 1982. Thereafter, on January 3, 1983, Judge Gates issued the following decree:

AND NOW, to wit, January 3, A.D., 1983, after hearing, and in consideration of all of the testimony, the home study reports and the psychological evaluations we award primary custody of Douglas T. Haag to his natural father Dennis T. Haag. The natural mother Donna J. Haag shall have reasonable rights of visitation as the parties may agree. Failing to agree Donna Haag shall have the following periods of temporary custody away from the home of Dennis T. Haag:
A. Donna Haag shall have temporary custody of her son Douglas T. Haag from 6:00 p.m. on Friday until 6:00 p.m. on Sunday on alternate weekends commencing on Friday, January 7, 1983.
B. The alternate weekend temporary custody shall be suspended during the following major holidays: Thanksgiving, Christmas and Easter. During these holidays, the length in visitation periods shall be equal to the child’s school vacation. Douglas shall spend the morning of each holiday with his father. From Noon until 7:00 p.m. Douglas shall spend the remaining half of the holiday with his natural mother.
C. Douglas shall spend each Father’s Day with his father and Mother’s Day with his mother and this visit shall take precedence in the event it conflicts with the alternate weekend schedule described above.
D. Donna Haag shall have temporary custody for a period of two weeks during the months of either June, July or August upon giving thirty (30) days written notice in advance of the weeks she intends to exercise this right of temporary custody.
E. Nothing in this Decree shall prevent the parties from agreeing to additional periods of temporary custody or visitation.

It is from this order that Mother filed this timely appeal.

It is well established that in all child custody cases, the paramount consideration is the best interests and welfare of the child. All other considerations are deemed subordinate to the child’s physical, intellectual, moral, and spiritual well-being. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983); K.L.H. v. G.D.H., 318 Pa.Super. 330, 464 A.2d 1368 (1983); Hall v. Mason, 316 Pa.Super. 160, 462 A.2d 843 (1983); Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981); Commonwealth ex rel. Lettie H.W. v. Paul T. W., 281 Pa.Super. 262, 422 A.2d 159 (1980); Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979); McCourt v. Meyers, 268 Pa.Super. 152, 407 A.2d 875 (1979); Rummel v. Rummel, 263 Pa.Super. 97, 397 A.2d 13 (1979); Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978).

Our scope of review in child custody cases is broad. Although “we must accept the trial court’s findings of fact, unless they are unsupported by the evidence, ... on those facts we must make such order as our independent judgment persuades us right and justice dictate.” In re Donna W., 325 Pa.Super. 39, 41, 42, 472 A.2d 635, 636 (1984) (en banc). While we do not usurp the factfinding function of the trial court which is premised on a direct assessment of the witnesses’ credibility, we are not bound by the trial court’s deductions and inferences. Harner v. Harner, 330 Pa.Super. 343, 479 A.2d 583 (1984). Accord, In re Donna W., supra (credibility of witnesses and weight to be given their testimony can best be determined by the judge before whom they appeared). Cf. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984) (appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings and, thus, represent a gross abuse of discretion). In order for us to exercise our independent judgment, however, the record must be complete and the trial court’s opinion comprehensive. Harner v. Harner, supra; In re Donna W., supra; Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981).

Our determination of whether the trial court’s findings of fact are supported by the record is made more complicated in the instant case because the trial court made no formal findings of fact or conclusions, but delivered its decision in narrative form. However, upon careful examination, it is plain enough that the findings of fact implied in the court’s narrative are supported by the record and are thus binding upon this court. See In re Donna W., supra. The trial court then drew the following conclusions: (1) the physical characteristics of the two home environments favor Father; (2) Mother’s living arrangements have had an adverse effect on Douglas; (3) Father is basically a warm and caring person, while Mother is highly controlled and evasive; (4) Mother is more interested in her job and her union activities than in her family; (5) Mother shows evidence of instability and is less credible; (6) Father is the more fit parent; and (7) custody by Father would allow Douglas and Denise to live together.

Accepting the findings of fact as binding, we must decide whether the trial court correctly applied to those facts the pertinent principles of law. Mother argues that absent any compelling reasons for change, custody of a child of tender years should remain with his mother, with whom he has resided since birth. We have several problems with this argument. First, Douglas did not reside only with Mother since birth; both Father and Mother were present in the household until July of 1981, when Mother removed herself and Douglas from the home. Also, given the findings of fact, we seriously question Mother’s conclusion that there were no compelling reasons for a change of custody. Finally, the “tender years” doctrine has been abolished in Pennsylvania. Miller v. Miller, 327 Pa.Super. 45, 474 A.2d 1165 (1984); Haraschak v. Haraschak, 268 Pa.Super. 173, 407 A.2d 886 (1979); Rummel v. Rummel, supra; Commonwealth ex rel. Lee v. Lee, 248 Pa.Super. 155, 374 A.3d 1365 (1977); McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).

Mother cites Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982) for the proposition that positive consideration should be given to the parent who has been the primary caretaker of the child, a sort of tender years doctrine in disguise. Jordan does hold that where the natural parents are both fit, and the child is of tender years, the trial court must give positive consideration to the parent who has been the primary caretaker. Id., 302 Pa.Superior Ct. at 425, 448 A.2d at 1115. Furthermore, such a child should not be lightly removed from a parent with whom that child has lived since birth. Id., 302 Pa.Superior Ct. at 426, 448 A.2d at 1115.

Again, Mother seems to ignore several important details. We have already noted that unlike the situation in Jordan, Douglas has lived with both parents since birth, until shortly before this custody suit arose. Second, there is absolutely no evidence in the record that Mother was the primary caretaker of Douglas, and provided for his basic physical and psychological needs since birth. Instead, the record reveals that both parents worked, that Father and Douglas did many things together, including homework, and that Father did his share of caring for both children as they were growing up. We cannot say that the record shows Mother to have been the primary caretaker; rather it seems to demonstrate that, at the very least, both parents were involved in Douglas’ caretaking. Finally, Jordan presumes that both parents are fit. In the instant case, the lower court expressly found Mother less fit than the father as a custodian of Douglas. (Lower ct. op. at 10).

Upon careful review of the record, we must affirm the lower court’s grant of custody to Father. We agree with the court’s conclusion that the physical characteristics of the two home environments favor Father. Mother lives with her boyfriend in a two bedroom apartment in Palmyra, in which Douglas has only a small bedroom. Father lives with Denise in a six bedroom farmhouse, situated on 4.8 acres in Bethel Township, close to where Douglas grew up, and within the same school district that Douglas originally attended before his move to Palmyra with Mother. We note, however, that this advantage is chiefly physical and therefore, not determinative. Commonwealth ex rel. Jordan v. Jordan, supra (superior physical environment is insufficient, standing alone, to justify an award of custody).

Another factor that, by itself, is not determinative, is the preference to keep siblings together. As a general rule, it is preferable to have siblings raised together. In re Davis, supra. However, this rule must yield to the paramount principle that the best interests of each individual child must be the determining factor in custody decisions. Id.; McAnallen v. McAnallen, 300 Pa.Super. 406, 446 A.2d 918 (1982); Sykora v. Sykora, 259 Pa.Super. 400, 393 A.2d 888 (1978); In re Russo, 237 Pa.Super. 80, 346 A.2d 355 (1975). We note that Denise and Douglas are eight years apart in age, but Denise testified that she helped Douglas with his schoolwork and helped to take care of him generally, and that she used to comfort him when their parents fought. Douglas testified that he loved and missed his sister. Mother cites McAnallen v. McAnallen, supra, for the proposition that a court will not disturb a happy and stable relationship that a father has established with one child and a mother with another child. Upon closer examination, we find that McAnallen merely reaffirms the policy that, absent compelling reasons, siblings should not be separated. McAnallen v. McAnallen, supra 300 Pa.Super. at 415, 446 A.2d at 923; Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982). The best interests of the children in McAnallen were served by a separation. In the instant case, inapposite on its facts, we find no compelling reasons to separate Denise and Douglas, with the acknowledgement that this is only one factor to consider in granting custody.

The lower court recognized that Mother’s non-marital relationship with John Breidegan did not, of itself, deprive her of the right to custody. Rather, the issue to be determined is the effect the relationship has upon the child. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983); McAnallen v. McAnallen, supra; G.J.F. v. K.B.F., 284 Pa.Super. 139, 425 A.2d 459 (1981); Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980).

The court must never assume, or infer, that simply because a nonmarital relationship exists, the impact of the relationship on the children has been harmful. The evidence must show that it has been harmful, and this is so whether the nonmarital relationship ... approaches a de facto marriage or ... is more transient.

Robert H.H. v. May L.H., supra 293 Pa.Super. at 437, 439 A.2d at 190. In the instant case, it appears that the lower court wrongly assumed or inferred such an adverse effect. However, upon careful examination of the record, we find evidence that Mother’s relationship with John Breidegan was harmful to Douglas. Both Father and Douglas testified that Douglas saw, and perceived, Mother and John “naughty in the bedroom” together. Douglas testified that they also walked around the house without any clothes on in front of him, and slept in the same bedroom. Compare Robert H.H. v. May L.H., supra, with McAnallen v. McAnallen, supra.

While we do not assign as great weight to the nonmarital relationship of Mother as did the lower court, we find that, in combination with the superior physical environment of Father’s home and the presence of Douglas’ sister Denise in Father’s home, plus the additional well-founded conclusions that Father is a warm and caring person, while Mother is evasive and controlled and that Mother shows serious signs of instability, the award of custody of Douglas to Father was not in error. From our independent review of the record, we find that Douglas’ best interests will be served by allowing him to remain in the primary custody of his father. Accordingly, we affirm the order of the lower court.

      . The custody suit between the parties involves only Douglas. From the time of separation in July 1981 throughout the proceedings in the lower court, Denise has remained, to everyone’s apparent satisfaction, with her father.

      . To the extent that our holding in In re Donna W., supra, and the Pennsylvania Supreme Court’s holding in Commonwealth ex rel. Robinson v. Robinson, supra, conflict, we will, of course, follow the latter case. However, under either rendition of our standard of review, the results in the instant appeal would be the same.

      . In its opinion, the lower court found the following:
      1. Father was 40 years old and Mother was 36 at the time of the hearing. (Lower ct. op. at 3).
      2. Father is employed as an electrician at Bethlehem Steel and earns about $22,800 a year. (Lower ct. op. at 3).
      3. Father has never had any job-related problems with absenteeism, tardiness, or alcohol in over 20 years on the job and is a reliable, steady worker. (Lower ct. op. at 3).
      4. Father works from 7:00 a.m. to 3:30 p.m. weekdays and is home when the children return from school. (Lower ct. op. at 3).
      5. Mother is employed at Hershey Foods and earns about $18,000 a year. (Lower ct. op. at 3).

        6. Mother is active in the union at Hershey Foods and union activities require her to be out of the home many evenings. (Lower ct. op. at 3).
      7. Mother left the marital home in Bethel Township with Douglas on July 21, 1981, without prior warning to Father or Denise. (Lower ct. op. at 3).
      8. Mother and Douglas moved to a two bedroom apartment in Palmyra. (Lower ct. op. at 4).
      9. Father and Denise moved to a twelve room farmhouse, with 6 bedrooms, on 4.8 acres in Bethel Township. (Lower ct. op. at 4).
      10. In January 1982, Mother’s boyfriend, John Breidegan, ("J.B.”) moved in with Mother. J.B. is 52 years old, and separated from his wife of 31 years and one remaining teenage child. (Lower ct. op. at 4).
      11. Mother and J.B. share one bedroom, and Douglas has the other small bedroom. (Lower ct. op. at 4).
      12. Physical characteristics of the two home environments favor Father. (Lower ct. op. at 4).
      13. Douglas told Father that he'd seen Mother and J.B. "naughty in the bedroom.” (Lower ct. op. at 5).
      14. Denise is extremely unhappy about Mother’s relationship with J.B. and refuses to visit Mother. (Lower ct. op. at 5).
      15. The breakup of the family is solely attributable to Mother’s falling out of love with Father and into a relationship with J.B. (Lower ct. op. at 5).
      16. Douglas is a learning-disabled student and needs special attention in reading and spelling. (Lower ct. op. at 6).
      17. Douglas is experiencing intellectual confusion, external pressure, feelings of inadequacy, hostility, and anger. (Lower ct. op. at 6).
      18. Douglas has changed from a quiet well-adjusted boy to one with behavioral problems. (Lower ct. op. at 6).
      19. Douglas and Father did many things together while Douglas was young and growing up. (Lower ct. op. at 6).
      20. Father did his share of caring for Denise and Douglas as they were growing up. (Lower ct. op. at 7).
      21. Father is basically a warm and caring person and father. (Lower ct. op. at 7).
      22. Father is capable of cooking, and bathing, grooming, and taking care of both children. (Lower ct. op. at 7).
      23. Father helps Douglas with his school work, as does Denise. (Lower ct. op. at 7).
      24. Mother is highly controlled and evasive. (Lower ct. op. at 7).
      25. Mother would call Denise foul names in front of others, including Douglas. (Lower ct. op. at 7).
      26. Mother once kicked Douglas in the face when he failed to identify the letter Q. (Lower ct. op. at 8).
      27. Father drinks beer on occasion. (Lower ct. op. at 8).
      28. Mother "flipped out" shortly before the first hearing and walked around holding walls and mumbling. (Lower ct. op. at 9).

      . The lower court stated:
      "While we recognize that social mores have changed over the years, we are not satisfied that they've changed to the extent that a living arrangement such as this will not have an adverse effect on young Douglas.”
      Lower ct. op. at 5.
      "In truth we cannot directly attribute the change in this child to the relationship his mother has with John Breidegan. However, of one thing we are certain; it doesn’t help any.”
      Lower ct. op. at 6.

      . Douglas expressed no preference (“I don’t know”) in favor of residing with either parent during his testimony in chambers. Even if he had expressed such a desire, however, this fact, while to be considered, would not be controlling. See Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984); Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 427 A.2d 1370 (1981).

      . We are unable to agree with the lower court’s conclusion that Mother is more interested in her job and her union activities than in her family. We note that most of the witnesses, including Father’s, conceded that Mother was a good parent who loved her son. We cannot fault Mother for being interested in her job and outside activities without any concrete evidence of resultant harm to Douglas. See In re Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982).


author: BROSKY, Judge:

text:
    485 A.2d 1194
    Cynthia A. VANKIRK v. Alan R. VANKIRK, Appellant.
    Superior Court of Pennsylvania.
    Argued October 2, 1984.
    Filed Dec. 14, 1984.

      Max A. Levine, Pittsburgh, for appellant.
    Kenneth M. Steinberg, Pittsburgh, for appellee.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   BROSKY, Judge:

The question before us in this appeal is whether an agreement calling for the payment of alimony is avoidable by the spouse obligated to make the payment when his former spouse cohabits with a member of the opposite sex. We find that the agreement before us is not avoidable and therefore affirm.

The parties were married on May 12, 1976 and a divorce complaint was filed by appellee wife on January 16, 1981. Following conciliation the parties reached an agreement which is contained in the following consent order:

After conference with all parties, it is hereby ordered, adjudged and decreed that defendant shall pay to plaintiff alimony in the amount of $325.00 per month for 18 months to begin immediately. In consideration, plaintiff will withdraw her claim for equitable distribution of property and counsel fees. The parties agree that this order constitutes a full settlement of all claims between the parties and that the within alimony award is not subject to modification. Wage attachment dissolved. Arrearages are set at $450.00 to be paid off at $75.00 per month. Both parties, and their counsel signed the consent order.

When appellant ceased to make payments, appellee sought enforcement and hearings were held by a hearing officer who made the factual finding that Mrs. VanKirk had cohabited with a man from October, 1981 to at least September, 1982. It was, however, the hearing officer’s recommendation that Mr. VanKirk’s obligation to make the payments called for in the . agreement was unaffected by that cohabitation.

The trial court dismissed exceptions filed by Mr. VanKirk to the hearing officer’s recommendation and this appeal followed.

Appellant contends that his obligation to make what the agreement terms “alimony” payments should cease pursuant to the terms of Section 507 of the Divorce Code. That section provides:

§ 507. Bar to any alimony.
No petitioner shall be entitled to receive any award of alimony where such petitioner has entered into cohabitation with a person of the opposite sex who is not a member of the petitioner’s immediate family within the degrees of consanguinity subsequent to the divorce pursuant to which alimony is being sought.

The alimony payments in this case, while enforceable as a court order, (See 23 P.S. 501(f)), are not the result of an “award” of alimony by the court, but rather are the result of an agreement between the parties. The court did not enter an alimony award pursuant to the terms of Section 501 of the Act; it merely agreed to the entry of an order that reflects the agreement of the parties as to their respective property rights.

In considering appellant’s argument we have been guided by the following well-established principles which were set forth in our opinion in Kleintop v. Kleintop, 291 Pa.Super. 491, 495-496, 436 A.2d 223, 225 (1981):

... [A] property settlement agreement between husband and wife will be enforced by the courts in accordance with the same rules of law applying to determining the validity of contracts generally. 18 P.L.E. Husband and Wives § 21, at p. 47. Next, when construing an agreement involving clear and unambiguous terms, a court need only examine the writing itself to give effect to the understanding. In Re Estate of Breyer, 475 Pa. 108, 115, 379 A.2d 1305, 1309 (1977). Finally, a court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Dept. of Transportation v. Acchioni & Canuso, Inc., 14 Pa.Cmwlth. 596, 324 A.2d 828 (1974).

The agreement in this case made no provision for the cessation of payments in the event appellee cohabited with a man. In fact, the agreement does not call for the termination of payments in the event of her remarriage. Instead, it clearly provides for payments for eighteen months in exchange for Mrs. VanKirk’s promise not to pursue her claim for equitable distribution. There is no suggestion that appellee did not meet her end of the bargain and we will not permit appellant, who benefited from her promise, to renege on his.

We believe that our decision in the instant case comports with our earlier decision in Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981) in which we said of Section 507’s proscription against the payment of alimony to one cohabiting with another of the opposite sex: “This section applies to applications for alimony and does not purport to affect private, contractual obligations.” Id., 289 Pa.Superior Ct. at 409, 433 A.2d at 516.

While the Litwack case differs from the present one in that it involved a separation agreement made prior to enactment of the Divorce Code, we believe that the following principles enunciated by the Court in that opinion apply also to this case.

No assertion of fraud or mistake attendant upon the execution of the separation agreement is made. So long as a separation agreement stands unimpeached, the court cannot alter or change a provision for separate maintenance and support of the wife without the consent of both parties ... [AJbsent such impeachment, there is no authority for the court to cancel a contract made by the parties and in its place substitute one which it thinks proper but which as a matter of fact the parties had never assented to.”

Id., 289 Pa.Superior Ct. at 409, 433 A.2d at 516.

In sum, as in Litwack, we must conclude that if the parties had intended the payments to cease upon cohabitation, they could have so provided.

Order affirmed.

      . Act of April 2, 1980; P.L. 63, No. 26.


author: MONTGOMERY, Judge: DEL SOLE, Judge,

text:
    485 A.2d 1197
    COMMONWEALTH of Pennsylvania, v. Michael John FULLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 1, 1984.
    Filed Dec. 14, 1984.

      George Retos, Jr., Washington, for appellant.
    George B. Stegenga, Washington, for Commonwealth, appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

On January 16, 1982, appellant Michael John Fuller, a Waynesburg police officer, shot and killed Celia JoAnn McGilton while responding to a complaint of “a crazy man ... running around with a deer rifle.” Subsequently, he was convicted of involuntary manslaughter following a jury trial before the Honorable Glenn Toothman. Post-trial motions were denied, appellant was sentenced and this direct appeal was filed. Three issues are raised herein:

1. Whether the entire jury panel should have been excused prior to trial.
2. Whether defense counsel should have been permitted to cross-examine a Commonwealth witness regarding prior incidents of violence to impeach the witness’s credibility.
3. Whether the court should have permitted ¿ppellant to present evidence to show that the jury considered or received knowledge of a prior police brutality case in which appellant was involved.

We reject appellant’s first two contentions; however, for the reasons that follow, we remand for an evidentiary hearing on the third issue.

Appellant’s- first argument, that the entire jury panel should have been excused, is based on the following exchange between the court and a prospective juror:

BY THE COURT: Do any of you have any knowledge of any previous case involving any of the parties in this case, that case occurring in this courtroom in this county?
DAVID HUNTLEY [Prospective juror]: I know that Fuller was just on trial here.
(Tr. 13)

No objection or motion to excuse the jury panel appears in the record. Appellant has therefore not preserved this claim for appellate review since it was not properly raised in the court below. Commonwealth v. Reid, 475 Pa. 54, 379 A.2d 572 (1977); Commonwealth v. Presbury, 475 Pa. 48, 379 A.2d 569 (1977); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Appellant has not preserved his second issue for review either. After' a side bar on whether counsel would be permitted to question the witness about prior violent incidents, appellant’s counsel conferred with appellant and withdrew the question. Further, it is without merit because a witness’s credibility may not be impeached by prior acts of misconduct which have not lead to convictions, Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977), and then only if the convictions involve crimes of dishonesty or false statements. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Appellant’s final argument is not totally without merit. Appellant alleged, and offered to prove through testimony of a juror, that the jury at least had knowledge, and possibly considered, the fact that appellant had been involved in a prior police brutality case. This was despite the fact that the court excused all prospective jurors who admitted to such knowledge on voir dire. No evidentiary hearing was ever held. As a general rule, a juror may not impeach his or her own verdict after the jury has been discharged. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978). The exception to this rule, however, permits discharged jurors to testify as to the existence of outside influences during their deliberation. Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970). Thus, appellant should be afforded a hearing at which he may present evidence of extraneous influences that might have affected the jury during their deliberation. Commonwealth v. Sero, supra.

Case remanded for an evidentiary hearing with respect to the existence of outside influences on the jury during deliberation. Jurisdiction is retained.

DEL SOLE, J., filed a dissenting opinion.

DEL SOLE, Judge,

dissenting:

Appellant raised allegations in his Motion for a New Trial that the jury had knowledge of, and possibly considered, his involvement in an unrelated civil matter wherein the Appellant was found liable for police brutality, malicious prosecution and related charges. These averments are set forth in Appellant’s motion for a new trial as follows:

1. Following the conclusion of the trial of the Defendant in the above referenced matter and the return of the jury’s verdict, it has been learned by defense counsel that certain member(s) of the jury had prior knowledge of the defendant’s involvement in a civil matter concerning Kyle Hallam wherein a civil judgment was returnéd against the defendant, among others, on the liability theory of police brutality, malicious prosecution and related charges.
2. The defendant believes, and therefore avers, that the knowledge of this matter by various jury member(s) would taint and/or prejudice the jury against the defendant.
3. During voir dire, each member of the jury was asked if they had any knowledge of any of the parties in this action having been involved in any litigation. This question was directed to the matter of the Hallam case. Each jury member answered in the negative, however defendant believes, and therefore avers, that certain members of the jury were aware of the civil litigation outcome.

I would require further support for the Appellant’s charge of improper conduct than these allegation's. Merely alleging the consideration of an outside matter which may have influenced the jury’s decision is not sufficient to warrant an evidentiary hearing. There are no affidavits from'jurors; there is nothing in the record to support the charges.

The courts of this Commonwealth have long held that a juror may not impeach his or her verdict after the jury has been discharged. Commonwealth v. Sero, 478 Pa. 440, 447, 387 A.2d 63 (1978); Commonwealth v. Pierce, 453 Pa. 319, 322, 309 A.2d 371 (1973). There is a narrow exception to the “no impeachment” rule: jurors may be competent to testify as to the improper conduct of a third party whose actions may have tended to affect their verdict and deliberations. Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970). This exception is inapplicable to. the present case. But even in these unusual cases when an evidentiary hearing is held, allegations of third party misconduct have been supported by jurors’ affidavits prior to the hearing. See Zlatovich, supra; Welshire v. Bruaw, 331 Pa. 392, 393, 200 A.67 (1938).

Based on the foregoing, I respectfully dissent.

      . Appellant argues that counsel made such a motion at side bar which was not recorded and that the court refused. We cannot, however, consider what is not in the record. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981).