author: WICKERSHAM, Judge:

text:
    445 A.2d 773
    Edward G. TADDEI, v. Joan M. TADDEI, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1982.
    Filed May 14, 1982.
    Petition for Allowance of Appeal Denied Sept. 9, 1982.

      Michael R. Needle, Philadelphia, for appellant.
    George W. Berkelback, Philadelphia, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   WICKERSHAM, Judge:

On September 12, 1955 Edward and Joan were married and later bought a home at 12427 Tyrone Road, Philadelphia, Pennsylvania where they raised their children. In March of 1975 the couple separated and have not lived together as husband and wife since. Edward Taddei, appellee herein, moved to New Jersey and began divorce proceedings there. In his complaint in divorce Edward Taddei asked for a dissolution of his marriage and an equitable distribution of property acquired during the marriage. The New Jersey court granted the divorce on May 29, 1980, but made no property distribution. In November of 1980 Joan M. Taddei requested the New Jersey court to reopen the final judgment of divorce so that the marital property could be distributed. Dominick J. Ferrelli, a judge of the Superior Court of New Jersey, ruled that the New Jersey courts could not effect an equitable distribution because Joan and Edward never lived as husband and wife in New Jersey; the property involved was situated in Pennsylvania, and Mrs. Taddei never submitted to New Jersey jurisdiction by filing an answer nor an appearance.

Edward Taddei filed a complaint in equity in the Family Division of the Philadelphia Court of Common Pleas on November 17, 1980, seeking a court-ordered partition of the property at 12427 Tyrone Road; the appointment of a master to sell the Tyrone Road property; an accounting from his ex-wife for the reasonable rental value of the property since the divorce; an accounting for all assets previously held by the parties as tenants by the entireties; and finally that waste be charged to Joan and that the proceeds of sale be divided equally between them after waste was so charged. Mrs. Taddei filed an answer to Mr. Taddei’s complaint and admitted that no property distribution had taken place. In her new matter she alleged that she was sick, unable to work and that a partition of the Tyrone Road property would burden her finances and destroy her failing health. By a first defense she argued that Edward’s desertion with their savings should estop him from requesting partition; by a second defense she argued that partition would be inequitable. Joan Taddei also counterclaimed seeking sole ownership of the home at Tyrone Road and an equitable distribution of other marital property; an award of support and back support; alimony, and an injunction restraining Mr. Taddei from disposing of or hiding property in his possession. As she conceded below these claims were based upon the Divorce Code enacted in 1980. 23 P.S. § 101 et seq. Record at 44.

Mr. Taddei then filed a preliminary objection in the nature of a motion to strike, asserting that since the parties were validly divorced partition was the exclusive remedy available with respect to the real estate. Accordingly, he argued that most of Mrs. Taddei’s pleading was irrelevant based as it was on the Divorce Code supra. The Honorable John R. Meade sustained Edward Taddei’s objections and dismissed Joan Taddei’s counterclaim. Judge Meade viewed the issue in the case as whether the Divorce Code of 1980 applied retroactively and decided that the new code did not afford relief to divorced persons. He therefore dismissed Joan Taddei’s counterclaim with prejudice. This appeal followed.

I. DISCUSSION

Joan Taddei’s first appellate issue is:

1. Whether a Pennsylvania resident and citizen who is a defendant in a foreign divorce proceeding in which the court did not and could not determine the parties’ property rights for lack of jurisdiction over such property may maintain a separate action for such relief in the courts of Pennsylvania?

She argues that the New Jersey divorce decree could not dispose of property located in Pennsylvania because the New Jersey court had no jurisdiction over her or the property. It is true that a court cannot exercise in rem jurisdiction over property outside its own state. See, Whitmer v. Whitmer, 243 Pa.Super. 462, 365 A.2d 1316 (1976), cert. denied, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977). Therefore, either Joan or Edward Taddei could bring an action in Pennsylvania to settle their property rights. Edward Taddei has brought such an action; the question is not whether he has the right to do so but rather whether the Divorce Code of 1980 governs his suit.

Joan Taddei’s second issue is:

2. Whether the Divorce Code of 1980 governs such a separate action where brought after the effective date of the Act, notwithstanding the fact that the foreign divorce was decreed prior to the effective date of the Act.

She asserts that the Divorce Code of 1980, supra governs the rights of the parties to the property at Tyrone Road. The lower court decided the new divorce law did not apply to the case. Section 103 of the Divorce Code provides:

§ 103. Construction

The provisions of this act, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments. The provisions of this act shall apply to all cases, whether the cause for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act, or, upon application granted, under the provisions of this act. The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act. This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.

23 P.S. § 103 (emphasis supplied). The Divorce Code became effective on July 1, 1980. Mr. Taddei received a divorce decree on May 29,1980, before the effective date of the Divorce Code. Under the above quoted language of the Code the statute cannot apply to this case because a decree was rendered before July 1, 1980.

Mrs. Taddei believes the sentence “The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act,” actually was “intended to prevent persons who had been divorced and had their property rights fixed by decree on the basis of pre-Divorce Code law from reopening these matters on the basis of the Act’s provisions.” Brief for Appellant at 14. She insists that her broad reading of § 103 is compatible with the remedial purposes of the Code, one of which is to effectuate economic justice between the parties. See, 23 P.S. § 102.

Yet the rules of statutory construction state, “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). The language of § 103 is explicit: the Divorce Code applies only if a decree has not been rendered prior to July 1, 1980. Mrs. Taddei was divorced before the new Code became law and cannot proceed under the Divorce Code.

In Snaith v. Snaith, 282 Pa.Super. 450, 422 A.2d 1379 (1980) we considered an analogous situation. Mrs. Snaith sued in equity on a theory of express and implied contract seeking, inter alia, an accounting of her husband’s assets and imposition of a trust upon one-half of those assets, as well as an injunction against any transfer of assets, relief available under the Divorce Code. Mr. Snaith’s preliminary objections were sustained and Mrs. Snaith’s complaint dismissed. Similarly, Mrs. Taddei is asking for relief available only under the Divorce Code by way of a counterclaim to a suit in equity. In Snaith, we affirmed the lower court and said:

In closing we note that we are aware of the real issue in this case. Appellant believes, quite possibly correctly, that her efforts contributed to the financial success of appellee as her husband, and she therefore seeks a share of the assets held in his name. What appellant seeks is, in essence, what she would be entitled to in a property settlement following a divorce granted under the Divorce Code of 1980, Act of April 2, 1980, P.L. 26, § 401. However, this is not an action under the Divorce Code; it is an action in equity filed before the Code was enacted. In arguing to us all of her theories in support of relief ... what appellant has asked us to do is to hold that under the law as it was before the Code was enacted she is entitled to the same—or substantially the same—relief as under the law as it is after the Code was enacted. Plainly, however, that is not so; under the law as it was before the Code was enacted appellant is not entitled to the relief provided for by the Code.... Indeed, the fact that she is not was a principal reason for enacting the Code. The only way in which we could decide in appellant’s favor would be to overrule the many cases settling the law against her, thereby declaring, in effect, that it was unnecessary for the Legislature to enact the Code. Such a declaration would be a manifest abuse of judicial power.

Id., 282 Pa.Super. at 457, 422 A.2d at 1383.

Mrs. Taddei’s third contention on appeal is:

3. Whether a spouse who institutes a foreign divorce proceeding, in which he prayed for equitable distribution of the parties’ property and won by default, is estopped from denying the applicability of equitable distribution principles in a case commenced by him in Pennsylvania to adjudicate the parties’ rights in property in consequence of the divorce but which the foreign court could not determine for lack of jurisdiction over such property?

Joan Taddei asserts that the doctrine of equitable estoppel applies to matrimonial actions and directs us to Rosen v. Sitner, 274 Pa.Super. 445, 418 A.2d 490 (1980). Rosen, supra, held that a man who marries a woman with knowledge that she had obtained a Mexican divorce is estopped from a later attack on the validity of the foreign divorce. From this case Joan Taddei argues that her ex-husband cannot deny the applicability of equitable distribution in his Pennsylvania suit and that he should “now be estopped from contending that he wanted a divorce but did not really intend to seek or submit to an equitable distribution of the parties’ property.” Brief for Appellant at 19.

While it is true that Mr. Taddei sought an equitable distribution of property in his New Jersey divorce complaint it does not follow that he must seek equitable distribution in a Pennsylvania equity complaint in partition. The estoppel principle enunciated in Rosen, supra, would prevent Edward Taddei from attacking a New Jersey decree making an equitable distribution of property if such a decree was obtained at his request. But here, the New Jersey court did not, and indeed could not, make any property distribution because it lacked jurisdiction. Mr. Taddei is not attacking his New Jersey divorce or asserting that equitable distribution was unavailable under New Jersey law. He merely asserts that under the law of Pennsylvania, the only forum with jurisdiction over the subject property, equitable distribution is not applicable. That he took a position consistent with the law of New Jersey when he sought a divorce there does not estop him from taking a position consistent with the law of Pennsylvania as he seeks a partition here.

Finally, Joan Taddei argues:

4. Whether the court below acted properly in dismissing defendant’s counterclaim for equitable distribution with prejudice, assuming the Divorce Code of 1980 does not apply to this case, where defendant had a cause of action for an accounting and partition of property jointly held by the parties which could have been made in an amended Counterclaim?

Review of the record shows that Mrs. Taddei made no effort to amend her counterclaim or ask the trial court for leave to amend her counterclaim to state a cause of action for an accounting. As was well said in Di Sante v. Russ Financial Co., 251 Pa.Super. 184, 380 A.2d 439 (1977):

The appellants ... argue also that even if their complaint was properly dismissed, the lower court erred by failing to allow them to amend their complaint so that a cause of action could have been made out upon a better statement of the facts. The record, however, reveals that the appellants never requested leave from the court below to amend their complaint. As we stated in Eastgate Enterprises, Inc. v. Bank and Trust Co. of Old York Road, 236 Pa.Super. 503, 508-09, 345 A.2d 279, 282 (1975):
“A liberal right of amendment is afforded all litigants, Pa.R.Civ.P. 1033, and a complaint may be amended even if doing so changes the cause of action, provided the statute of limitations has not run. (citation omitted) Appellant could have filed an amendment ‘as of course within ten (10) days after service of a copy of preliminary objections.’ Pa.R.Civ.P. 1028(c). Or it could have asked the lower court for leave to amend. Pa.R.Civ.P. 1033.”
Instead, the appellants in the instant case, as did the appellant in Eastgate Enterprises, Inc. v. Bank & Trust Co. of Old York Road, supra, opted to appeal to this court and to ask us for leave to amend. Because the issue was not raised below, we will not consider it on appeal. E.g., Eastgate Enterprises, Inc. v. Bank & Trust Co. of Old York Road, supra; Blose v. Martens, 173 Pa.Super. 122, 95 A.2d 340 (1953).

Id., 251 Pa.Super. at 189-90, 380 A.2d at 441-42.

See also, Snaith v. Snaith, supra.

Following these cases, we will not consider this issue, unraised below.

Order affirmed.

      . This appeal was taken by Joan M. Taddei from an Order dated July 22, 1981; the Order, by Judge Meade of the Family Court Division of the Philadelphia County Court of Common Pleas, sustained Edward G. Taddei’s Preliminary Objections and dismissed Joan Taddei’s New Matter, First Defense, Second Defense and Counterclaim with prejudice. An Order sustaining Preliminary Objections and dismissing a complaint is a final, appealable order. See, Estate of Gasbarini v. Medical Center of Beaver County, 487 Pa. 266, 409 A.2d 343 (1979). Joan Taddei filed her notice of appeal on July 28, 1981 within the 30 day period allowed by Pa.R.A.P. 903.

       Since the appellants did not properly present the issue for our consideration, we need not decide whether or not the defective complaint could in fact be cured.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    445 A.2d 778
    Edrick McKNIGHT, a minor, by his parent and natural guardian, Bernice McKnight, and Bernice McKnight, in her own right v. The CITY OF PHILADELPHIA and The School District of Philadelphia. Appeal of The SCHOOL DISTRICT OF PHILADELPHIA. Edrick McKNIGHT v. Santee RUFFIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 12, 1980.
    Filed May 14, 1982.

      Robert T. Lear, Philadelphia, for the School Dist. of Philadelphia, appellant (at No. 2452).
    Leon A. Mankowski, Philadelphia, for Ruffin, appellant (at No. 84).
    Daniel L. Thistel, Philadelphia, for appellees (at No. 2452).
    Before BROSKY, CIRILLO  and HOFFMAN, JJ.

       At the time this case was submitted, Honorable VINCENT A. CIRILLO of the Court of Common Pleas of Montgomery County, Pennsylvania was sitting by designation.

   BROSKY, Judge:

This action was commenced by Edrick McKnight to recover damages for injuries he suffered when he was cut by a saw during a wood shop class. Appellants in these consolidated appeals were among the defendants named below. The jury returned a verdict in the amount of $95,000 and following the denial of post-trial motions, these appeals followed. Mr. Ruffin and the School District argue that appellee did not meet his burden of proof as to either their negligence or as to damages. They also contest the admissibility of certain expert testimony. We affirm the decision of the trial court.

The accident occurred in 1970 while Edrick McKnight was an eleventh-grade student at Germantown High School in Philadelphia. He was using a circular saw to cut strips of wood when somehow the finger of one hand was amputated and another was severely injured. Mr. McKnight testified that he could not remember exactly how the accident happened, but it is clear that it was caused by the saw. The guard with which the saw had been equipped had been removed by the wood shop instructor earlier in the semester and remained off at the time of the accident.

Appellant, Ruffin, sought a judgment n. o. v. alleging that appellee had failed to meet his burden of proving that Mr. Ruffin had been negligent or that his negligence had caused the injury.

Our standard of review of the denial of motions for' judgment n. o. v. was explained in Posh Construction, Inc. v. Simmons & Greer, Inc., 292 Pa.Super. 149, 436 A.2d 1192 (1981), as follows:

Further, we must be mindful that judgment n. o. v. will be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper, and any doubts should be resolved in favor of the verdict. See Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980); Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Bottorf v. Waltz, 245 Pa.Superior Ct. 139, 369 A.2d 332 (1976). In the resolution of this appeal, we must consider the evidence available to the lower court in the light most favorable to the verdict winner, giving it the benefit of every reasonable inference of fact arising therefrom, and we must resolve any conflict in evidence in the favor of the verdict winner. See Broxie v. Household Finance Company, supra.

It is axiomatic that in order to recover damages on a negligence theory, a plaintiff must prove the existence of a duty, breach of that duty and that the breach was the proximate cause of the injury. See Engel v. Friend’s Hospital, 439 Pa. 559, 266 A.2d 685 (1970); O’Neill v. Batchelor Bros., Inc. Funeral Homes, 421 Pa. 413, 219 A.2d 682 (1966).

The concept of proximate cause was explained in Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978):

Proximate cause is a term of art denoting the point at which legal responsibility attaches for the harm to another arising out of some act of defendant, Fleckinger Estate v. Ritsky, supra [452 Pa. 69, 305 A.2d 40]; W. Prosser, Law of Torts, § 41 (4th ed. 1971); and it may be established by evidence that the defendant’s negligent act or failure to act was a substantial factor in bringing about the plaintiff’s harm. (Citations omitted.)

Appellant, Ruffin, contends that the only evidence relating to his possible negligence was given by Mr. Scriven, who had succeeded him as principal of Germantown High School. That testimony, he argues, provided insufficient evidence that he had a duty which was breached. Appellant also contends that Mr. Scriven’s testimony should not have been admitted against him.

Mr. Scriven testified that in 1970 he was not connected with Germantown High School, but that at the time of the accident he was employed as Administrative Assistant to the Superintendent of Schools. He said that he knew what were the responsibilities and duties of a high school principal in 1970 and that they included a responsibility for the safety of the students and ordinarily, for “everything in the building, in concept.”

There was also testimony that for several months prior to the accident, the guard was not on the saw.

Based on this evidence, the trial court concluded the jury could conclude that Mr. Ruffin was negligent in not correcting the dangerous situation created by the absence of the guard. We agree.

Appellant also argues that Mr. Scriven’s background was not explored in enough detail to provide a foundation for his testimony. However, no objection was made to the qualification of the witness at trial and that issue is therefore waived. See Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Appellant, School District, also claims that appellee failed to meet the burden of proving that negligence by it caused his injury. They contend that since appellant cannot recall exactly how the accident occurred, the jury had no basis for finding that the absence of the guard on the saw caused it to happen.

It is true that appellee testified that he had no specific recollection of his fingers being amputated. In fact, he seemed confused as to exactly what operation he was performing when the accident occurred. However, the lower court found that appellee had nonetheless sustained his burden. We agree.

Mr. Chaitkin, the shop teacher, testified that the purpose of the guard, which had been removed, is to protect the operator from injury by keeping his fingers away from the saw. He agreed that when the saw is not equipped with a guard, the “last line of defense” has been removed.

Additionally, a photograph of the actual saw was introduced, and Mr. Chaitkin explained how it differed from the model constructed by Dr. Keyt.

Professor Keyt constructed a model of a saw with a guard that he said would not afford protection as good as the one on the actual saw. He opined that even if the guard on his model were on, the accident would not have occurred. Appellee met its burden.

Mr. Ruffin and the School District object to the admission of testimony of a witness who testified as to the operation of a model saw which he constructed. Dr. Keyt is a professional engineer. He stated that most of his experience with wood cutting came from his personal use of saws rather than professional experience. However, he did add,

Of course, I’ve applied what I’ve known as an engineer in the use of my wood saw in the basement. I would not approach the saw exactly the same way as a person who had not had the engineering experience.

He stated that he has applied the laws of physics which he learned as a mechanical engineer in his work with wood.

In Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981), our Supreme Court explained:

The Pennsylvania standard of qualification for an expert witness is a liberal one. “If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify and the weight to be given to this evidence is for the jury. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974).
(437 A.2d at 1201).

Although Dr. Keyt’s experience with wood cutting seems to have been acquired at his home, rather than on the job, the lower court could have found that his engineering background gave specialized knowledge that would aid the jury.

Both appellants seek a new trial contending that appellee did not meet the burden of proving damages. Specifically, they point to alleged inadequacies in the testimony of two experts called by appellee.

Our Supreme Court discussed the question of proof of damages in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027, 1030 (1980):

The “law does not require that proof in support of claims for damages or in support of compensation must conform to the standard of mathematical exactness.” Lach v. Fleth, 361 Pa. 340, 352, 64 A.2d 821 (1949). All that the law requires is that “(a) claim for damages must be supported by a reasonable basis for calculation; mere guess or speculation is not enough.” Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 453-54, 197 A.2d 721, 727 (1964). See also, Small [Smail] v. Flock, 407 Pa. 148, 180 A.2d 59 (1962); Getz v. Freed, 377 Pa. 480, 105 A.2d 102 (1954). “If the facts afford a reasonably fair basis for calculating how much plaintiffs entitled to, such evidence cannot be regarded as legally insufficient to support a claim for compensation.” Western Show Co., Inc. v. Mix, 308 Pa. 215, 162 A. 667 (1932).

The first witness, Dr. Leshner, was an employment counselor who testified at length as to appellee’s employment and salary history and future prospects. He outlined the kind of work for which appellee is qualified and opined as to the range within which his salary is likely to fall. He compared that range to one in which he believed appellant would have fallen if the accident had not occurred.

Obviously the witness cannot say with certainty exactly what appellee would have earned if his hand were not injured; he did, however, outline a reasonably fair basis for his calculations.

Leonard Goodfarb, an actuary, also testified as to damages. He reduced to present worth the salary losses likely to be suffered by appellee over what Goodfarb estimated to be in a 38-48 year work life expectancy. He utilized the method of discounting future damages by computing interest at six percent simple interest. This method is the one required by our courts. See Kaczkowski, supra. However, as appellant notes, the calculation of present worth is complicated. Mr. Goodfarb’s expert testimony, rather than confusing the issue, offered aid to the jury.

Judgment affirmed.

      . Compulsory nonsuits were entered in favor of the other defendants.

      . Appellant had moved for compulsory nonsuit at the conclusion of appellee’s case and he argues that denial of the motion was in error. However, as he notes in his brief, the subject of this appeal is the denial of motions for judgment n. o. v. or new trial.

      . Mr. Ruffin refers us to an exchange that took place between the trial judge and counsel concerning Mr. Scriven’s testimony. Mr. Scriven had been called by appellee’s counsel as a records custodian. At trial, however, appellee’s attorney announced that he wished also to question him “as of cross.” Appellant’s counsel objected to this procedure, but the lower court permitted it saying that the testimony was not to be used in the case against Mr. Ruffin. Later in the trial, appellee’s counsel requested that the testimony be incorporated into that case. Appellant’s attorney stated that he did not think the motion was necessary since the testimony had “been developed.” By his statements in opposition to the motion, counsel indicated that he understood Mr. Scriven’s testimony to have been part of the case against his client. He cannot now rely on the judge’s earlier limitation on its use as grounds for excluding the testimony. This is particularly so in view of the fact that he alleges no prejudice from the procedure.


text:
    445 A.2d 782
    COMMONWEALTH of Pennsylvania v. Julian DUMAS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1980.
    Filed May 14, 1982.

      Athena M. Dooley, Philadelphia, for appellant.
    Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, CIRILLO  and HOFFMAN, JJ.

       At the time this case was argued, Honorable Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania was sitting by designation.

   BROSKY, Judge:

Appellant, Julian Dumas, was convicted at a non-jury trial of bribery, tampering with a witness and criminal conspiracy. He filed post-verdict motions which were denied. Dumas was sentenced to three to eleven months imprisonment in Philadelphia County Prison on each charge. His sentences were to run concurrently. This appeal followed. We affirm.

Dumas contends on appeal that: (1) his trial counsel was ineffective; (2) the trial court abused its discretion in imposing too severe a sentence; (3) there was insufficient evidence to support a conviction; (4) his demurrers were improperly denied; (5) the trial court erred in admitting prejudicial evidence and the trial court abused its discretion in not granting a mistrial on the basis of the improperly admitted prejudicial evidence.

The record indicates that Dumas and his codefendant, David Bell, conspired in an attempt to bribe Police Officer Edward Krystopa to testify falsely at a suppression case in which Bell was a defendant. On February 7, 1977 and on February 14,1977, Dumas met with the police to arrange for a bribe. On February 24, 1977, Dumas and Bell were arrested immediately after Bell gave Officer Krystopa $500 in an envelope. This comprised one-half of the bribe payment.

Dumas contends that his trial counsel was ineffective because counsel failed to request a severance of his case from that of codefendant. We do not agree.

In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967), our Supreme Court said:

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, implying a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.

(Emphasis added.)

A trial court may be petitioned for severance of a trial. The decision of that court lies within its discretion and that decision will not be reversed absent an abuse of discretion by the court. The critical factor we examine in determining whether the court has abused its discretion is whether the moving party is prejudiced as a result of the trial court’s decision. Commonwealth v. Iacino, 490 Pa. 119, 415 A.2d 61 (1980); Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980).

In Commonwealth v. Sindel, 205 Pa.Super. 355, 364, 208 A.2d 894, 899 (1965), we said:

As to Kulik, the statement charges him with the crime of abortion and not conspiracy to have Dr. Sindel perform an abortion, but there is nothing in the statement to establish a conspiracy between him and Dr. Sindel. Therefore any tacit admission by Kulik of the crime with which the statement charged him could not affect Dr. Sindel or the cases before us. However, we need not decide its effect on the defendant Kulik since we believe the ends of justice require that both appellants should be retried together and a new trial will include him as well as Dr. Sindel. Although coconspirators may be tried separately, Heine v. Commonwealth, 91 Pa. 145 (1879); Commonwealth v. Brown, 23 Pa.Super. 470 (1903), separate trials are not warranted under the circumstances of the present case.

It is apparent that had Dumas’ counsel moved for severance of his client’s trial from that of Bell, his likelihood of success was very small.

Nevertheless, trial counsel quite reasonably could have opposed making a request for tactical reasons. Dumas was being tried for conspiracy. Trial counsel could have determined that the joint trial would reflect favorably on his client. The record clearly indicates that counsel engaged in extensive cross-examination to prove that Dumas’ role in the alleged crimes was significantly less than that of Bell. This distinction would be particularly clear at a joint trial. Accordingly, we are unable to find trial counsel ineffective.

Next, Dumas contends that the sentence he received was too severe. “The imposition of sentence is a matter vested in the sound discretion of the trial judge whose determination will not [be] disturbed in the absence of a manifest abuse of discretion.” Commonwealth v. Williams, 274 Pa.Super. 464, 475, 418 A.2d 499, 505 (1980). See Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979); Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978). “Under the Sentencing Code, a sentence must be imposed for the minimum amount of time that is consistent with the gravity of the offense, the rehabilitative needs of the defendant and the protection of the public.” Commonwealth v. O’Brien, 282 Pa.Super. 193, 196, 422 A.2d 894, 896 (1980). See also Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). “We may only order reconsideration where the sentencing judge has failed in his duties, either in a procedural sense, as for example failing to state the reasons for the sentence, or in a substantive sense, by imposing a manifestly excessive sentence.” Commonwealth v. Doyle, 275 Pa.Super. 373, 390, 418 A.2d 1336, 1345 (1979). See Commonwealth v. Straw, 238 Pa.Super. 535, 361 A.2d 427 (1976). While the sentence received by Dumas was within the legal limits established in the sentencing code, we will not reach the merits of this issue having determined that Dumas failed to comply with Pa.R.Cr.P. 1410, which requires that a motion to modify a sentence be filed within ten days of the imposition of sentence. Accordingly, the issues is waived. Commonwealth v. Koziel, 289 Pa.Super. 22, 432 A.2d 1031 (1981).

Dumas also contends that there was insufficient evidence to convict him of all counts. In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975), our Supreme Court said:

The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all the elements of the crime had been established beyond a reasonable doubt . .. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced .... The fact-finder is free to believe all, part, or none of the evidence .... (Citations omitted.)

The evidence read in such a light reveals that on February 7, 1977 Dumas approached Officer Stokes asking if he could do anything for Bell. Dumas told Stokes that in return for his help the officer could be helped in City Hall or given money. Stokes told Dumas he was not on Bell’s case. Dumas asked Stokes if he would speak to the arresting officer. Stokes introduced Dumas to the arresting officer, Officer Krystopa, on February 14,1977. Then, the arrangements for a bribe were made. Dumas orchestrated this meeting. An agreement was arranged. On February 24, 1977, Bell paid Krystopa a $500 bribe.

Bribing is defined at 18 Pa.C.S.A. § 4701 as:

§ 4701. Bribery in official and political matters
(a) Offenses defined.—A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
(1) ...
(2) any benefit as consideration for the decision, vote, recommendation or other exercise of official discretion by the recipient in a judicial, administrative or legislative proceeding; or ...

The evidence is clear that Bell conferred upon Officer Krystopa a $500 bribe. Bell was properly convicted of bribery. Dumas played an integral role in arranging for the payment of the bribe by Bell. Dumas was properly convicted under 18 Pa.C.S.A. § 306(c)(l)(i) and (ii).

Tampering with a witness was defined at the time of the commission of the offense as:

§ 4907. Tampering with witnesses and informants
(a) Offense defined.—A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a witness or informant to:
(1) testify or inform falsely;
(2) withhold any testimony, information, document or thing except on advice of counsel; ...

We are satisfied that Dumas’ guilt was properly proven, on this count under 18 Pa.C.S.A. § 306(c)(l)(i) and (ii).

Conspiracy is defined in the Crimes Code at 18 Pa.C. S.A. § 903 as:

§ 903. Criminal conspiracy
(a) Definition of conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

We have repeatedly held that an agreement may be inferred from the acts and circumstances of the parties. Commonwealth v. Charles, 270 Pa.Super. 280, 411 A.2d 527 (1980); Commonwealth v. Kwatkoski, 267 Pa.Super. 401, 406 A.2d 1102 (1979); In Interest of Gonzalez, 255 Pa.Super. 217, 386 A.2d 586 (1975); Commonwealth v. Adams, 254 Pa.Super. 62, 385 A.2d 525 (1978); Commonwealth v. Kidd, 251 Pa.Super. 140, 380 A.2d 416 (1977); Commonwealth v. Horvath, 187 Pa.Super. 206, 144 A.2d 489 (1958). We are convinced that the record supports a finding of a conspiratorial agreement. Therefore, we hold the conspiracy was proven by sufficient evidence.

Dumas asserts that the trial court improperly denied his demurrers to the charges of bribery and tampering with a witness. In a demurrer, a defendant admits all the facts which the Commonwealth’s evidence tended to prove and all inferences reasonably deductible from those facts. 19 P.S. § 481 (repealed effective June 27, 1980).

In Commonwealth v. Petrie, 277 Pa.Super. 239, 243, 419 A.2d 750, 752 (1980), we said:

Furthermore, the Commonwealth has failed to demonstrate that the trial court erred in sustaining Petrie’s demurrer to the robbery charge. To avoid a demurrer in a criminal prosecution, the Commonwealth must come forward with evidence which establishes beyond a reasonable doubt each element of the crime charged. Commonwealth v. Mason, 483 Pa. 409, 397 A.2d 408 (1979). Therefore, the test to be applied in ruling on a demurrer to evidence by a defendant is whether the Commonwealth’s evidence and all reasonable inferences arising therefrom are sufficient to support a verdict of guilty beyond a reasonable doubt of the crime under consideration. Commonwealth v. Smith, 262 Pa.Super. 258, 396 A.2d 744 (1978).

We have already determined that sufficient evidence existed to support the court’s verdict. Accordingly, we hold that the demurrers were properly denied.

Next, Dumas argues that the trial court erred in admitting prejudicial evidence. Dumas states in his brief:

The court below erred in admitting certain prejudicial evidence and abused its discretion in not granting a mistrial on the basis of that evidence,
A. When the testimony regarding the amount and type of narcotics seized from the co-defendant and other details of the co-defendant’s previous narcotics charge, was unnecessarily introduced at the outset of the trial, unnecessarily tainting the court in hearing the rest of the case and the subsequent sentencing of the defendant:
B. When the testimony regarding the defendant’s February 7,1977, conversation with the officer was improperly admitted, having occurred outside the scope of the conspiracy charged on the bill of information for alleged conduct on February 24, 1977, and tending to show evidence of other alleged criminal conduct by the appellant;
C. Despite testimony being admitted indicating material misrepresentation by the Commonwealth’s witnesses.

(Appellant’s brief, page 19.)

Our scope of review herein is very narrow. We will only reverse the decision of the trial court not to grant a mistrial where there has been a flagrant abuse of discretion. Commonwealth v. Green, 287 Pa.Super. 220, 429 A.2d 1180 (1981); Commonwealth v. King, 287 Pa.Super. 105, 429 A.2d 1121 (1981); Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975).

Our Supreme Court has stated that testimony relating to the prior criminal acts of a defendant may be introduced if it is relevant to prove motive, intent, absence of mistake or accident, common scheme, plan or design or identity. In Commonwealth v. Brown, 489 Pa. 285, 296-297, 414 A.2d 70, 75-76 (1980), our Supreme Court stated:

Appellant complains that the testimony rélating to the robbery of John Gallen was improperly introduced at his trial. He argues that this testimony was not only irrelevant but also highly prejudicial.
“ ‘It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that the purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit the crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence’ .... ” Commonwealth v. Spruill, 480 Pa. 601, 606, 391 A.2d 1048, 1049-50 (1978) quoting Commonwealth v. Terry 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975). See also Commonwealth v. Clark, 453 Pa. 449, 309 A.2d 589 (1973).
However, where the evidence is most relevant, the mere fact that testimony of another crime may be prejudicial will not prevent its introduction into evidence. Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1973). Thus, evidence of other crimes has been admitted where that evidence tends to prove motive or intent, Commonwealth v. Terry, 462 Pa. 595, 600, 342 A.2d 92 (1975), absence of mistake or accident, Commonwealth v. Peterson, 453 Pa. 187, 197-8, 307 A.2d 264, 269 (1973), common scheme, plan or design (embracing commission of two or more crimes so related to each other that proof of one tends to prove the others) Commonwealth v. Wable, 382 Pa. 80, 82, 114 A.2d 334, 336-337 (1955), and to establish the identity of the person charged with the commission of the crime on trial, Commonwealth v. Rose, 483 Pa. 382, 396 A.2d 1221, 1230 (1979). Although it is the prejudicial nature of this evidence that prevents it from being harmless error, Commonwealth v. Spruill, supra [“evidence or prior criminal activity ... is probably only equalled by a confession in its prejudicial impact upon a jury,” 480 Pa. at 606, 391 A.2d at 1050-51], when introduced in a trial, its relevancy to the proceeding in question determines its competency.

Apparently, Dumas intends to argue, though he does not clearly do so, that the testimony of Bell’s previous narcotics charge and the type of narcotics seized from Bell insinuates that Dumas was involved in the criminal conduct entered into by Bell. Accepting, arguendo, that this is a valid conclusion, we are persuaded that the evidence was relevant. It supplied the court with evidence of Dumas’ motives for committing the crimes with which he was charged. The court did not abuse its discretion in admitting this evidence.

In Dumas’ statement of questions set out above, he indicates at “B” that the testimony concerning his conversation with Officer Stokes was improperly admitted. Dumas, however, presents no argument concerning this claim in his brief. Accordingly, the issue is waived. Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981); Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981).

Dumas also contends that his request for a mistrial should have been granted when, on reopened rebuttal, Officer Krystopa and Officer Davis retracted earlier Commonwealth testimony that Bell had written out a property receipt for $780 which was seized from him. In Commonwealth v. Conti, supra, we discussed the question of a trial judge’s impartiality at a non-jury trial. We said:

It is plain from the cases cited that in some instances due process requires that we not simply rely on the fiction of a judicial blindside. It is also plain, when cases like Berkery[] and Mangan[] are compared with cases like Rivers,[ ] that at least in Pennsylvania no fixed rule has been announced for determining when a trial judge will be regarded as having been able to maintain his impartiality after hearing incompetent evidence. We do not undertake to announce such a rule now. Instead, we shall continue to decide each case according to its particular facts. In so doing, however, we do explicitly recognize that two factors will be considered of critical import. One factor will be the inherently prejudicial quality of the specific evidence involved. This, as indicated, was determinative in Rivers. There the evidence was “so prejudicial” that the risk of improper adjudication could not be ignored. In contrast, when the risk is not of emotional impact but rather of intellectual error in tracing a chain of inferences or in recognizing the pitfalls of double hearsay, greater weight will be given to judicial expertise. See Levin and Cohen, supra;[] Davis, supra.[] The other factor will be the importance of the evidence to the particular case. Suffice it to say that when, as in Berkery, the other evidence is overwhelming, we shall be less sensitive to the risk of harmful prejudice below.

Id. 236 Pa.Super. at 501, 345 A.2d at 245.

We are convinced that the trial judge, sitting as fact finder, was able to maintain his impartiality. The impact of the retraction was clear. The statement was retracted in full. If anything, the trial court would have questioned the testimony of the officers after the retraction because their retraction clearly impeached them. Additionally, the retraction did not involve evidence of significant importance. The record indicates that the court was presented ample evidence proving Dumas’ guilt. While, this evidence, in substantial part, came from the testimony of Officers Krystopa, we are satisfied that the trial judge’s impartiality was not prejudiced sufficiently for us to hold that he flagrantly abused his discretion.

Thus, we are unable to find fault with the decision of the trial court. Judgment of sentence is affirmed.

      . Dumas and Bell were tried as codefendants. Bell has appealed to this court his conviction on the same charges. We affirmed the trial court. Commonwealth v. Bell, 296 Pa.Super. 564, 438 A.2d 635 (1981).

      . Dumas did not request the notes of testimony from the sentencing hearing. Rather, he relies upon the opinion of the trial court. The court said in its opinion:
      Finally, a note concerning the sentence imposed by this Court should be made. This Court sentenced the defendant to not less than three (3) months nor more than eleven (11) months in Philadelphia County Prison. The defendant argues that since the sentencing guidelines suggest probation for this defendant, the sentence imposed by this Court is too severe. This Court feels, however, that participation in an attempt to bribe a police officer to change his testimony in a criminal matter is a serious offense which strikes at the very heart of our system of justice. To allow a defendant convicted of such an offense to return to the community with nothing more than probation would be even a greater miscarriage of justice.
      (Trial Court Opinion pages 6 and 7.)
      We are unable to find that Dumas’ reliance on the trial court’s opinion in any way preserves the issue for our review.

      . Commonwealth v. Berkery, 200 Pa.Super. 626, 190 A.2d 572 (1963) allocatur refused, cert. denied, 375 U.S. 966, 84 S.Ct. 484, 11 L.Ed.2d 415.

      . Commonwealth v. Mangan, 220 Pa.Super. 54, 281 A.2d 666 (1971).

      . Commonwealth v. Rivers, 218 Pa.Super. 184, 279 A.2d 766 (1971).

      . Levin and Cohen, The Exclusionary Rule in Nonjury Criminal Cases, 119 U.Pa.L.Rev. 905 (1971).

      . Davis, Hearsay in Nonjury Cases, 83 Harv.L.Rev. 1362 (1970).


author: BROSKY, Judge: CIRILLO, Judge,

text:
    445 A.2d 788
    Dolores Y. ADAMS, Polly Feidler and Sally Bojarski, Appellants, v. Adeline EULIANO.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1982.
    Filed May 14, 1982.

      Richard T. Ruth, Erie, for appellants.
    Dennis V. Williams, Erie, for appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   BROSKY, Judge:

Appellants, Adams, Feidler and Bojarski, appeal from the order of the trial court denying their motion to take off a compulsory nonsuit. We reverse and remand for trial.

In PeAir v. Home Ass’n of Enola Legion No. 751, 287 Pa.Super. 400, 403-404, 430 A.2d 665, 666-667 (1981), we said:

A nonsuit should be entered only in a clear case. McMillan v. Mountain Laurel Racing Inc., 240 Pa.Super. 248, 367 A.2d 1106 (1976); DiGiannantonio v. Pittsburgh R. Co., 402 Pa. 27, 166 A.2d 28 (1960); Dunmore v. McMillan, 396 Pa. 472, 152 A.2d 708 (1959). In describing how clear the case must be, it has been said that a nonsuit can be entered only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordánce with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved. Borisoff v. Penn Fruit Company, Inc., 165 Pa.Super. 572, 574, 69 A.2d 167 (1949).
Also, it has been said that a nonsuit should be entered only where the facts and circumstances lead unerringly to the conclusion that the plaintiff has failed to prove his case. Korpa v. Stuyvestant Life Ins. Co., 236 Pa.Super. 581, 351 A.2d 682 (1975).

When so viewed, the evidence is as follows:

On January 27, 1979, appellant, Dolores Adams, visited appellee, Adeline Euliano's house with a possible aim of purchasing it. A tour of the building disclosed, upon inspection, several holes in floors. Euliano explained to Adams that the holes were in one situation caused by a leaking garbage disposal or water leaks, and in another circumstance was caused by faulty wiring. A real estate appraiser who detected some of the holes was told that they were caused by a dishwasher which overflowed. Appellants purchased the house and one month after moving in they discovered, when they engaged a repairman to fix the holes in the floor, that the house was infested with termites. An exterminator was then employed to inspect the house for termites. He determined the house was infested. He stated also that in his opinion an untrained person would not have been able to determine that there was a termite problem.

Adams claimed, below, that Euliano fraudulently misrepresented to her the condition of her house. Our courts have consistently held that a false representation is fraudulent only when by clear and convincing evidence it is demonstrated that the representation was made knowingly with the intent to deceive or in reckless disregard for the truth or falsity of the matter. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981); Brentwater Homes, Inc. v. Weibly, 471 Pa. 17, 369 A.2d 1172 (1977); Thomas v. Seaman, 451 Pa. 347, 304 A.2d 134 (1973); Bachman v. Artinger, 285 Pa.Super. 57, 426 A.2d 702 (1981); Glanski v. Ervine, 269 Pa.Super. 182, 409 A.2d 425 (1979); Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498 (1974); Shane v. Hoffmann, 227 Pa.Super. 176, 324 A.2d 532 (1974). The lower court granted the compulsory nonsuit because it held that the appellants had failed to establish the requisite scienter to prove that a fraudulent misrepresentation had occurred.

The appellants submitted the following evidence, which the record supports, to the trial court concerning Euliano’s intent to deceive. First, after the appellants purchased the house and discovered the termites, they confronted Euliano about the condition of the house. Euliano stated that she had seen tunnels in the walls at one time and had sprayed and put out mothballs to correct the condition. Second, Euliano supplied varying descriptions about the origins of the holes at different times and to different people. Third, that the real estate appraiser who looked at the house noted the basement was, to the extent he saw it, very clean. Adams testified that she noted the tidiness of the cellar, however, after closing, she discovered a broom handle in the basement which was infested with termites. Appellants argue this evidence, when viewed most favorably to them, demonstrates knowledge of the termite condition and an intent to deceive. We are unable, under these circumstances, to hold that the appellants had so failed in proving their case that the facts and circumstances unerringly lead to a conclusion in favor of Euliano. Thus, the trial court erred in denying appellants’ motion to take off the compulsory nonsuit as to fraudulent misrepresentation.

Appellants argue alternatively that sellers of real estate in Pennsylvania are not free to make innocent misrepresentations to buyers of real estate where the seller is under a duty to know the condition of his house. Thus, it would follow that the trial court should have determined whether such a duty existed herein. The lower court held that no such duty can potentially exist under Pennsylvania law.

In Glanski v. Ervine, supra, we held that a seller was liable for failing to disclose a termite infestation of which he had knowledge. That case involved a real estate broker who materially misrepresented facts and was held liable. The seller of the house claimed that any misrepresentation he made was entirely innocent. In holding that the seller was responsible for damages arising out of his failure to disclose, we said:

There was also sufficient evidence to support the verdict against appellant Graff. The credibility of his statements that he did not know about the termites was for the jury to decide, especially given Ervine’s statement that he had told Graff about them. See Highmont Music Corp. v. J. M. Hoffman Co. [397 Pa. 345, 155 A.2d 363], supra (proper jury inference); Shane v. Hoffman [227 Pa.Super. 176, 324 A.2d 532], supra (tenant’s testimony that he had told owner of problems held sufficient to support finding that owner knew of problems. Furthermore, even if Graff’s misrepresentation was innocent,
[a] material misrepresentation may be found whether [seller] actually knew the truth or not, especially where, as here, it was bound to ascertain the truth before making the representation.
Highmont Music Corp. v. J.M. Hoffman Co., supra, at 397 Pa. at 350, 155 A.2d at 366.
Accord, Berger v. Pittsburgh Auto Equipment [387 Pa. 61, 127 A.2d 334] supra, [footnote omitted]

Id., 269 Pa.Super. at 192, 409 A.2d at 430. Therefore, the lower court incorrectly held that no cause of action would lie if the seller was proven to be under a duty to know about a dangerous condition in the building and innocently failed to disclose information to which that duty applied, especially when inquiry was made and a response was given by the owner.

Accordingly, we reverse the order of the trial court and remand for a new trial.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. Fraud, or the intent to defraud is never presumed, and must be proved by evidence that is clear, precise and convincing. Snell v. Commonwealth, State Examining Board, 490 Pa. 277, 416 A.2d 468 (1980). The appellants argue that the evidence demonstrates knowledge of the termite condition and intent to deceive. Yet, there is no indication by the evidence presented that the appellants did indeed establish the requisite scienter necessary to prove fraudulent misrepresentation on the part of the appellee.

The expert testimony of an exterminator who was hired by the appellants, revealed that only a specially trained person could detect the presence of termites in a house. A real estate appraiser, upon seeing the holes, was unable to determine that they were caused by termites. Even the appellants, who had dealt extensively in the real estate field, had no reason to suspect the presence of termites in the house. Therefore, to expect the appellee to have such knowledge would be beyond the boundaries of reasonableness as it would hold the appellee liable for knowledge she could not have.

The appellee explained upon inquiry that the floor damage had been caused by leakage from a garbage disposal, water leakage from a dishwasher and burns from faulty wiring. These explanations are plausible, they certainly seemed believable to the appellants and an independant real estate appraiser, and there is no evidence which supports the contention that the appellee did not believe these explanations to be correct.

Even if a misrepresentation is innocent, a material misrepresentation could be found where one is bound to ascertain the truth before making the representation. Glanski v. Ervine, supra. In the case of Highmont Music Corporation v. J. M. Hoffmann Company, supra., the plaintiff stated, prior to leasing the building, that the storeroom must have a strong floor and the tenant had a limited amount of money to spend for any necessary improvements. The landlord represented that the floors were strong, that they would support any weight, and that the building was in excellant condition and would not need much money to improve it so that it could be used. The tenant subsequently discovered that the floors of the building were not capable of supporting any kind of business permitted under the City Code and that at some places the floor was not sufficiently safe even for persons to stand upon it. The Court held that the landlord had knowledge of these conditions and the tenant did not. The representation of conditions, which required no expertise to discover, were of material facts, were fraudulent, and were justifiably relied upon by the tenants.

In the present case, there is no evidence that the appellee ever knew the premises were infested with termites. The appellants never made any inquires as to the presence of termites on the property and testified that the various holes found on the premises were “no big deal” and really did not matter. Presumably, had the appellants asked if there were termites in the house or had stated that the deal was off if there were termites on the premises, then the appellee would have been bound to have the premises inspected to ascertain whether or not there was a termite problem. However, this is not the case.

In termite cases, for there to be fraudulent misrepresentation, a statement or representation must be made with the intention to deceive another, or there must be a failure to disclose a latent defect which was known to the seller, or there must be an intentional hiding of the defect by covering over the damage so that the purchaser cannot discover it. See: Glanski v. Ervine, supra; Shane v. Hoffmann, supra; National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977). Any of the above are lacking in this case. To hold otherwise would bring about the total abandonment of the doctrine of Caveat Emptor and create absolute liability in all cases of after-discovered termite damage.

The large number of termite exterminating companies in Pennsylvania is an indication of the high incidence of termite infestation in the Commonwealth. A buyer can protect himself by demanding from the seller a certificate from a reputable exterminating company that the premises are free from infestation. Such a provision is common today in agreements of sale.

Although the damage to the property was readily observable, none of the parties apparently even suspected that termites were on the property. To say that these circumstances create a duty to know that which cannot be reasonably determined, would be to say that a homeowner is required to know everything about his home and to say nothing when asked. Such a burden cannot be placed on the appellee in this case.

I respectfully dissent.

      . Adams, Feidler and Bojarski are in the business of owning and managing real estate. They own six residential properties.

      . The appellants also asked: “Did the trial court abuse its discretion in denying plaintiffs’ [appellants herein] motion to reopen plaintiffs’ case after closing to introduction additional evidence?” Appellants’ brief, page 2. We find it unnecessary to address this issue having ordered a new trial.


author: BROSKY, Judge.

text:
    445 A.2d 792
    Sharon L. FISHER v. Raymond L. FISHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1982.
    Filed May 14, 1982.

      Raymond L. Fisher, appellant, in pro. per.
    Neil Jay Marcus, Monongahela, for appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   BROSKY, Judge.

The instant appeal is interlocutory and therefore is quashed. This is a divorce case in which the trial court vacated a decree in divorce, which it had previously entered, and granted Sharon L. Fisher’s application to proceed under the Divorce Code of 1980. Raymond L. Fisher contends that the trial court erred in holding that a final decree in divorce would have been ordered under the Divorce Law of 1929 had it not permitted Sharon L. Fisher to proceed under the Divorce Code and that the court improperly granted Sharon L. Fisher’s application to proceed under the Divorce Code.

First, we note that there is no final decree in divorce entered in the instant case. As such, there is no order from which Raymond L. Fisher has appealed. Thus, he cannot raise now any issue concerning the divorce decree entered and subsequently vacated in the court below. Pa.R.A.P. 301 et seq.

We have very recently held that an appeal from the granting of an application to proceed under the Divorce Code is interlocutory. Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981). Furthermore, there is no claim by Raymond L. Fisher that the lower court certified its order pursuant to 42 Pa.C.S.A. § 702(b). Conrad v. Conrad, 293 Pa.Super. 558, 439 A.2d 717 (1981). Accordingly, this appeal is not properly before us. The appeal is quashed.

      . The Divorce Code, Act of April 2, 1980, P.L.63, No. 26, 23 P.S. § 101 et seq.

      . The Divorce Law, Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 1 et seq. (repealed).

      . We note that under Pa.R.A.P. 311(a)(1) that an order vacating a judgment is interlocutory but may be appealed from as a matter of right. However, Raymond L. Fisher does not claim to appeal from the vacation of the order granting a divorce decree, rather, he appeals from the merits of the vacated order which granted a divorce under the Divorce Act. Clearly, such an appeal is interlocutory.


author: WIEAND, Judge:

text:
    445 A.2d 793
    F. Robert DOUGHERTY, Administrator of the Estate of Theresa A. Dougherty, Deceased, v. SADSBURY TOWNSHIP and Stephen A. Devereux, Jr. and Albert Bair, and Larry D. Humphrey. Appeal of SADSBURY TOWNSHIP. F. Robert DOUGHERTY, Administrator of the Estate of Theresa A. Dougherty, Deceased, Appellant, v. SADSBURY TOWNSHIP and Stephen A. Devereux, Jr. and Albert Bair, and Larry D. Humphrey.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1981.
    Filed May 14, 1982.
    Petition for Allowance of Appeal Denied Sept. 9, 1982.

      Stephen H. Palmer, Media, for Sadsbury Township, appellant (at No. 1214) and appellee (at No. 1218).
    Keith S. Erbstein, Philadelphia, for Dougherty, appellant (at No. 1218) and appellee (at No. 1214).

      Robert S. Gawthrop, Jr., West Chester, for Devereux, appellee.
    Thomas G. Gavin, West Chester, for Bair, appellee.
    R. Stephen Shibla, Harrisburg, for Humphrey, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this action to recover damages for the death of a motorcycle passenger who was killed in a collision at a busy intersection, the jury absolved the drivers from liability and awarded damages against the policeman who had been directing traffic, as well as his employer, Sadsbury Township. The trial court found the damages inadequate and awarded a new trial limited to damages only. Appeals were filed by the plaintiff-administrator and also by the defendant township. We affirm the grant of a new trial but modify the trial court’s order by expanding it to award a new trial generally against all defendants.

“[T]o support the granting of a new trial for inadequacy, ‘the injustice of the verdict should stand forth like a beacon.’ So long as the verdict bears a reasonable resemblance to the damages proved, it is not the function of the court to substitute its judgment for that of the jury. Elza v. Chovan, [396 Pa. 112, 118, 152 A.2d 238, 240 (1959)]; Morris v. Peckyno, 202 Pa.Superior Ct. 490, 492, 198 A.2d 396 (1964). In the latter case, [the Superior Court,] quoting 15 AmJur., Damages, § 231, stated ‘ “As a rule, a verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or that the jury disregarded the instructions of the court, or in some instances, where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or, according to some of the cases, where, otherwise, there has been an evident failure of justice to the plaintiff, or where the award is so inadequate that it should not be permitted to stand. Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more.” ’ ” Rutter v. Morris, 212 Pa.Superior Ct. 466, 469-70, 243 A.2d 140, 142 (1968).

The grant of a new trial because of inadequacy of the verdict is a matter peculiarly within the competence of the trial court, and its discretion is considerable. Its action, therefore, will not be disturbed on appeal except where there has been a clear abuse of discretion. Wilson v. Nelson, 437 Pa. 254, 256, 258 A.2d 657, 658-59 (1969); Hose v. Hake, 412 Pa. 10, 14, 192 A.2d 339, 341 (1963); Elza v. Chovan, supra. However, appellate courts do not abdicate their powers of review and will reverse where a clear abuse of discretion exists. Hose v. Hake, supra.

In the instant case, the decedent, Theresa A. Dougherty, had been a guest passenger on a motorcycle operated by Larry D. Humphrey when it collided with a vehicle operated by Stephen A. Devereux, Jr. at the intersection of U.S. Route 30 and Wilmington Road in Chester County. At the time of her death, Miss Dougherty was twenty-two years of age, in good health, had been graduated from Immaculata College, and was a third grade teacher in the Coatesville Area School District. Her salary was $6,700 per year and would have been increased to $7,500 per year the following year. At the time of trial, teachers having tenure comparable to that which decedent would have had were earning $12,718 per year. Wages lost prior to trial were in excess of $45,600. Her future wages, reduced to present worth after deducting expected costs of maintenance, were estimated to be in excess of $173,500. The jury awarded damages of $5,000 in the survival action.

Under these circumstances, we are unable to find that the trial court abused its discretion when it determined the verdict to be inadequate. Compare: Prince v. Adams, 229 Pa.Superior Ct. 150, 324 A.2d 358 (1974).

The Supreme Court has previously held that where a substantial conflict exists on the question of liability, such that a low verdict indicates that the jury probably has compromised the liability issue with the amount of damages awarded, it is an abuse of discretion for the trial court to award a new trial limited to the issue of damages. Gagliano v. Ditzler, 437 Pa. 230, 232, 263 A.2d 319, 320 (1970); Berkeihiser v. DiBartolomeo, 413 Pa. 158, 196 A.2d 314 (1964). New trials may be limited to specific issues only when this procedure will be fair to the parties involved. “Where the question of negligence ... is not free from doubt, it is an abuse of discretion for the trial judge to grant a new trial on the issue of damages alone.” Gagliano v. Ditzler, supra, quoting from Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 60, 192 A.2d 689, 692 (1963).

In the instant case, the negligence of the drivers of the respective vehicles and the negligence of the traffic control officer were much in dispute and vigorously contested. There can be little, if any, disagreement that in this case, more than most, the question of damages was heavily intertwined with the issue of the negligence of the several defendants. Because of this we are compelled to conclude that it was an abuse of discretion to limit the new trial to the issue of damages only.

It is argued by the operators of the vehicles that they were absolved from negligence by the jury and should not be required to undergo the rigors and uncertainties of another trial. A similar argument was heard in Mains v. Moore, 189 Pa.Superior Ct. 430, 150 A.2d 549 (1959). Here, as there, a real issue of fact existed concerning the negligence of all defendants. Here, as there, the inference was strong that the award of inadequate damages had been the result of a compromise by the jury involving the question of liability. We conclude, therefore, as did the Court in Mains, that the award of a new trial should have been general and should have included all parties.

The order awarding a new trial, as modified herein, is affirmed.

      . Plaintiff-appellant contends, inter alia, that the trial judge delivered inadequate jury instructions on the issue of causation and erred in various evidentiary rulings, e.g., by refusing to allow certain rebuttal evidence; by allowing a diagram of the accident scene to be received in evidence without sufficient proof of accuracy; and by refusing to allow the entire written statement of a witness to be used for purposes of cross-examination where only a small part thereof was contradictory of his trial testimony. There is no merit in these arguments. The case was well tried and fairly submitted to the jury for determination.

      . The trial was completed prior to the Supreme Court’s decision in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980) which held that juries should no longer be instructed to reduce awards to present worth.

      . An award of $3,000 in the wrongful death action approximated funeral and medical expenses.


text:
    445 A.2d 796
    COMMONWEALTH of Pennsylvania v. William HARDWICK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 14, 1981.
    Filed May 14, 1982.

      John Halley, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   WIEAND, Judge:

William Hardwick was tried by jury and was found guilty of simple assault and making terroristic threats. Post trial motions were denied, and Hardwick was sentenced to serve a term of imprisonment for not less than one nor more than two years. After the time for appeal had expired, a P.C.H.A. petition was filed. Following hearing, the trial court granted leave to file an appeal nunc pro tunc. Consequently, the matter is before this Court on direct appeal. The only argument made by appellant is that the evidence was insufficient to sustain the findings of guilt. There is no merit in this argument; and, therefore, we affirm the judgment of sentence.

“In appraising the sufficiency of evidence, we must apply a two-step test. First, we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could properly have based its verdict; then we must ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Herriott, 265 Pa.Super. 143, 147, 401 A.2d 841, 843-44 (1979), quoting from Commonwealth v. Eddington, 255 Pa.Super. 25, 26, 386 A.2d 117, 117-18 (1978).

The facts proven by the evidence are recited in the opinion of the Honorable Ralph Cappy, trial judge, as follows: “On the morning of July 31,1978, several guards employed at the Allegheny County Jail were alerted to an altercation taking place in the Tower circle’ of the jail.... The argument turned into a physical ‘wrestling match’ between Hardwick and [Corrections Officer Gary] Morrison, and two other inmates, as well as Officers Milcic and Sweeney, and Lieutenant Faiello intervened to break up the fight. The officers proceeded to subdue the residents, and then Lieutenant Faiello and Officer Milcic assisted Morrison in transporting Hardwick to a Special Housing Unit in the jail called the ‘SHU.’ En route, Morrison and Hardwick again began to exchange words. A heated argument broke out during which Hardwick took a swing at Morrison, missing him. Officer Milcic immediately grabbed the defendant, and pulled him away from Morrison towards the ‘SHU,’ whereupon Hardwick struck Milcic twice in the head area with his fist. The Officers finally got Hardwick securely into the SHU, and proceeded to the jail’s medical department where they were advised to go to a hospital for x-rays. The officers went to the Central Medical Pavillion Emergency Room, where they were examined, x-rays were taken and they were both released with instructions to take a couple of days off from work.

“On August 11, 1978, Officer Milcic was assigned to the ‘SHU’ area of the jail. While he was in the process of [delivering] food . . ., the defendant approached him, stating, as Milcic testified, that ‘he’s going to get out of jail some day. When he does he’s going to get a gun, and come after me and Officer Morrison.’ ... The defendant admitted to the ‘wrestling match’ with Morrison, but denied striking or threatening Milcic at any time. He alleged that each physical altercation was instigated by Morrison.”

The crime of simple assault is defined in 18 Pa.C.S. § 2701(a) and includes an attempt to cause or intentionally, knowingly or recklessly causing “bodily injury to another.” “Bodily injury” is defined as an “impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301. The evidence in the instant case was clearly sufficient to sustain the jury’s finding that appellant caused bodily injury to Milcic with the required mens rea.

A more interesting question is whether appellant, on August 11, 1978, committed the crime of making a terroristic threat in violation of 18 Pa.C.S. § 2706. This section of the Crimes Code provides in pertinent part, as follows:

A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another ... or in reckless disregard ... of causing such terror ....

“The purpose of the section is to impose criminal liability on persons who make threats which seriously impair personal security .... It is not intended by this section to penalize mere spur-of-the-moment threats which result from anger.” Comment, Joint State Government Commission (1967). The offense does not require that the accused intend to carry out the threat; it does require an intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another’s sense of personal security. See Model Penal Code, revised comments, § 211.3. “[A] single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize . .. . ” Toll, Pennsylvania Crimes Code Annotated, § 2706, p. 332.

As here pertinent, to prove a violation, the Commonwealth was required to prove “(1) a threat to commit a crime of violence, and (2) that such threat was communicated with an intent to terrorize.” Commonwealth v. Holguin, 254 Pa.Super. 295, 305, 385 A.2d 1346, 1351 (1978). In the instant case, there was a threat made. The clear implication of that threat was that defendant, upon release from prison, would find Milcic and shoot him. Moreover, the circumstances under which the threat was made were such that a jury could infer that it was appellant’s intent to terrorize. Indeed, it is difficult to discern any other reason for making such a threat to Milcic on August 11, eleven days after the altercation in which Milcic had intervened.

The threat made by appellant was not one of those “spur-of-the-moment threats which result from anger,” which this Court held insufficient in Commonwealth v. Sullivan, 269 Pa.Super. 279, 409 A.2d 888 (1979). Rather, the facts were more nearly analogous to those in Commonwealth v. Ashford, 268 Pa.Super. 225, 407 A.2d 1328 (1979), where the defendant, while being arrested, threatened to hunt down the arresting officers and kill them and their families. Such a threat was held sufficient to sustain a conviction. See also State v. Daley, Me., 411 A.2d 410 (1980), where the Supreme Court of Maine held that a communicated threat to kill a police officer was a sufficient averment of fact to sustain a complaint charging the offense of making a terroristic threat.

The threat made by appellant to Milcic was pregnant with the promise of violence. It was made under circumstances suggesting that the maker intended to induce alarm or anxiety in the hearer. As such, it was a terroristic threat; and the Commonwealth’s proof thereof was sufficient to sustain the conviction.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 2706.

      . Appellant’s argument is cloaked in an assertion that trial counsel was ineffective for failing to preserve the sufficiency of the evidence for appellate review. This is difficult to comprehend. The sufficiency of the evidence issue was preserved in post trial motions and is properly before this Court on direct appeal.

      . Appellant was found not guilty of assaulting Officer Morrison.


text:
    445 A.2d 798
    COMMONWEALTH of Pennsylvania, Appellant, v. James LEWIS, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. William WALSTON, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1981.
    Filed May 14, 1982.
    Petition for Allowance of Appeal Denied Aug. 23, 1982.
    Petition for Allowance of Appeal Denied Sept. 23, 1982.

      Vram Nedurian, Jr., Deputy District Attorney, Media, for Commonwealth, appellant.
    Andrew J. D’Amico, Media, for Lewis, appellee in No. 1185.
    David Breen, Woodlyn, for Walston, appellee in No. 1186.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this juvenile proceeding, the trial court sustained demurrers and dismissed criminal complaints alleging robbery and theft by unlawful taking because the Commonwealth’s evidence showed only theft by receiving stolen property. We reverse.

James Lewis and William Walston, together with Lloyd Rochester and Ronald Walston, were arrested and charged with homicide, robbery, aggravated assault, theft by unlawful taking and conspiracy in connection with a mugging in Chester, Delaware County. The charges against James Lewis and William Walston, the appellees herein, were subsequently transferred for disposition to the Juvenile Division. At the conclusion of the Commonwealth’s case, the hearing court sustained demurrers to all charges, holding that the Commonwealth’s evidence was sufficient to show only theft by receiving stolen property. The Commonwealth appealed.

An order sustaining a demurrer to the Commonwealth’s evidence is appealable. Such an order presents a legal issue and not a factual one. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976); Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961); Commonwealth v. Danchision, 270 Pa. Superior Ct. 112, 410 A.2d 1274 (1979); Commonwealth v. Green, 210 Pa. Superior Ct. 482, 233 A.2d 921 (1967). “On appeal the proper test to apply in determining the validity of a demurrer is whether the evidence of record and the inferences reasonably drawn therefrom would support a verdict of guilty. ... In making such determination we must read the evidence in the light most favorable to the Commonwealth’s case.” Commonwealth v. Green, supra, 210 Pa.Super. at 484, 233 A.2d at 922.

So construed, the evidence presented at the adjudicatory hearing established the following. The victim, John McGinn, was attacked by several black youths while walking to work at the Atlantic Steel Company in Chester on the evening of December 26, 1979. His wallet was taken by his attackers, who quickly fled from the scene. Although there were several witnesses to the incident, none were able to identify the appellees as being among the assailants. However, there was testimony that shortly after the incident, appellees and their two companions, Lloyd Rochester and Ronald Walston, returned to the home of the appellee, William Walston. Rochester carried McGinn’s wallet and announced a successful mugging. The four men, including appellees, thereafter divided money removed from the wallet. The wallet was later found on a trash pile near the Walston home. McGinn, the victim, was hospitalized as a result of injuries received in the incident and subsequently died.

On appeal, the Commonwealth argues that it was error to sustain demurrers to delinquency charges where, as here, there was evidence that moneys taken from the mugging victim had been distributed in part to appellees, who had knowledge of its source. The hearing judge conceded that the Commonwealth’s evidence was sufficient to permit a finding of theft by receiving stolen property but sustained appellees’ demurrers because theft by receiving stolen property had not been specifically charged.

Section 3925(a) of the Crimes Code, 18 Pa.C.S. § 3925(a) provides: “A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.” The evidence presented by the Commonwealth, if believed, was sufficient to show a violation of this section.

That evidence could properly be received by the hearing court. Moreover, the Commonwealth was entitled to have it considered by the court despite the fact that the petition had charged theft by unlawful taking. Section 3902 of the Crimes Code, 18 Pa.C.S. § 3902, is very clear. It provides:

Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

This statute means that a specific charge of theft will permit evidence showing another type of theft; provided only, that the defendant must be given adequate opportunity to respond so that he or she will not be prejudiced or surprised. See Commonwealth v. Morin, 237 Pa. Superior Ct. 533, 541-2 n.3, 352 A.2d 189, 193 n.3 (1975), rev’d on other grounds, 477 Pa. 80, 383 A.2d 832 (1978). See also Commonwealth v. Adams, 236 Pa. Superior Ct. 534, 345 A.2d 192 (1975) (Concurring Opinion by Hoffman, J.), aff’d, 479 Pa. 508, 388 A.2d 1046 (1978). It has also been held that because theft is a lesser included offense of robbery, an indictment charging robbery will support evidence of theft committed in any manner specified in the chapter of the Crimes Code which defines the several offenses of theft. See Commonwealth v. Stevens, 237 Pa. Superior Ct. 457, 465-66, 352 A.2d 509, 513-14 (1975).

We conclude, therefore, that the court below erred when, despite prima facie evidence of theft by receiving stolen property, it sustained appellees’ demurrers to charges of delinquency.

Reversed and remanded.

      . The Commonwealth has not argued the sufficiency of the evidence to establish prima facie that appellees participated in the actual mugging. We observe, however, that there was evidence that immediately prior to the incident, while numerous persons were gathered in the Walston home, an announcement was made that a white man was walking down the street. Thereupon, appellees and two other youths left the home. They returned a short time later, breathing fast, with the victim’s wallet. One of them announced, “We just iced the mother fucker;” whereupon, the four divided the money which had been removed from the wallet.

      . 18 Pa.C.S. § 3901 et seq.


text:
    445 A.2d 801
    Gene REUBEN, Appellant, v. James L. O’BRIEN and Lawrence Rosenwald, a/k/a Lawrence Wm. Rosenwald and Aetna Casualty and Surety Co.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1981.
    Filed May 14, 1982.

      Louis Lipschitz, Philadelphia, for appellant.
    Robert Morris Cohen, Wyncote, for appellees.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

In this trespass action, in which the complaint contained counts of libel and negligent infliction of emotional distress, it was alleged that Lawrence Rosenwald, a constable, had posted a notice for the judicial sale of Gene Reuben’s property after the underlying judgment had been paid. Rosenwald filed preliminary objections to Reuben’s complaint, including a demurrer which asserted, inter alia, that the actions were barred by the six month statute of limitations contained in 42 Pa.C.S. § 5522(b)(1). The trial court agreed and entered judgment for Rosenwald. Reuben appealed.

“Because the lower court sustained [appellee’s] preliminary objections in the nature of a demurrer to [appellant’s] complaint, '[f]or purposes of appellate review, we must regard the allegations in [appellant’s] complaint as true and accord them all the inferences reasonably deductible therefrom.’ National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 372, 381 A.2d 963, 964 (1977).” Brockett v. Carnes, 273 Pa.Super. 34, 36, 416 A.2d 1075, 1076 (1979).

The complaint contains allegations as follows: On November 18, 1978, Eric Klein (not a party to the instant action) filed a complaint in assumpsit against Reuben in Magistrate’s Court 38-1-02 in Elkins Park, Montgomery County, to recover the sum of $138.00 allegedly due and owing for dry cleaning services. On December 6, 1978, judgment was entered by District Justice James L. O’Brien against Reuben for the amount of the claim. Thereafter, on March 29,1979, Klein filed a Request for an Order of Execution, and this was issued the same day by District Justice O’Brien. On the following day, Lawrence Rosenwald, the Constable of Cheltenham Township, served appellant with the Order of Execution and a “Schedule of Property Levied Upon and Set Aside.” On April 3, 1979, Reuben went to the office of the District Justice and paid the entire amount of the judgment, plus costs. Despite this payment, on April 7, 1979, Rosenwald posted a notice of Constable’s Sale on Reuben’s mailbox. Appellant’s complaint alleged further that appellant had suffered mental distress and embarrassment as a result of the constable’s posting of her property and requested general and punitive damages. The complaint was filed on March 17, 1980. Preliminary objections in the nature of a demurrer challenged the existence of a cause of action for negligent infliction of emotional distress and asserted that, in any event, appellant’s causes of action were barred by the statute of limitations contained in 42 Pa.C.S. § 5522(b)(1).

The relevant portion of 42 Pa.C.S. § 5522 provides: (b) Commencement of action required.—The following actions and proceedings must be commenced within six months:
(1) An action against any officer of any government unit for anything done in the execution of his office, except an action subject to another limitation specified in this subchapter.

Initially, we observe that unless a statute of limitations is a non-waivable defense, it is properly raised as new matter in a responsive pleading and not by means of preliminary objections in the nature of a demurrer. Royal Oil & Gas Corp. v. Tunnelton Mining Co., 444 Pa. 105, 282 A.2d 384 (1971); Ziemba v. Hagerty, 436 Pa. 179, 259 A.2d 876 (1969); Pa.R.C.P. 1017(b)(4). The limitation in 42 Pa.C.S. § 5522(b)(1), however, is not a waivable statute of limitations requiring affirmative pleading. It is a limitation which qualifies a substantive right by a condition of the time within which an action can be maintained. See Kovachick v. Jennings, 34 D. & C.2d 25 (C.P.Fay.1964), aff’d, 205 Pa.Super. 748, 209 A.2d 432 (1965); Sahd v. Kiscaden, 57 Lanc.L. Rev. 203 (1960). Moreover, appellant has not objected to the issue being raised by way of preliminary objections either in the trial court or on appeal, and it has been held that in such circumstances, we may proceed to a determination of whether appellant’s action is barred by the statute of limitations. Conaway v. 20th Century Corp., 491 Pa. 189, 420 A.2d 405 (1980); Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976); Cooper v. Downingtown School District, 238 Pa.Super. 404, 357 A.2d 619 (1976).

Appellant argues that the statute of limitations in 42 Pa.C.S. § 5522(b)(1) has no application to suits against constables. This argument is not persuasive. It is contrary to the language of the statute, as well as its legislative development and the goal of statutory consolidation manifested in the Judicial Code.

The statute of limitations by its terms applies to actions “against any officer of any government unit.” A government unit is defined as “[t]he General Assembly and its officers and agencies, any government agency or any court or other, officer or agency of the unified judicial system.” 42 Pa.C.S. § 102. Included within the unified judicial system are “[a]ll courts and district justices and their jurisdiction .. .. ” 42 Pa.C.S. § 301. A constable, charged with the responsibility of serving process and enforcing the judgments of the district court, is an officer of the unified judicial system. See, e.g., Rule 2 of Proposed Rules Governing Standards of Conduct of Constables, printed in the Appendix following 13 P.S. § 15. We conclude, therefore, that an action against a constable for anything done in the execution of his or her office is subject to the six month statute of limitations found in section 5522(b)(1).

Our interpretation of the statute of limitations is consistent with the statutory law which governed actions against constables prior to the enactment of the Judicial Code. The official source note following 42 Pa.C.S. § 5522(b)(1) suggests that that provision was intended as a generalization of several prior statutory limitations, among them a separate statute of limitations applicable to Justices of the Peace and Constables. This prior statute of limitations was as follows:

No action shall be brought against any justice of the peace, for anything done in the execution of his office, or against any Constable or other officer, or person or persons acting as aforesaid, unless commenced within six months after the act committed. (Emphasis added.) Act of March 21, 1772, 1 Sm.L. 364, § 7, 42 P.S. § 1017.

The statute which we construe today is derived from and is intended to be a re-enactment of this provision. It seems unlikely that a legislature intending to consolidate prior laws affecting the judiciary and the judicial system would eliminate actions against constables from this statute of limitations. We conclude, therefore, that appellant’s action for negligent infliction of emotional distress is clearly barred by this statute of limitations.

The second count of the complaint alleges that appellee’s conduct was an intentional and malicious libel committed for the purpose of exposing appellant to contempt and ridicule and reflecting adversely on her integrity and credit. According to these averments, if they be factually correct, appellee exceeded the authority of his office and under cover thereof committed an intentional tort. See 80 C.J.S. Sheriffs and Constables §§ 52, 146. Cf. Moseby v. Fleck, 242 Pa. 154, 88 A. 940 (1913); Oliver v. Wheeler, 26 Pa.Super. 5 (1904). An action for a willful and malicious libel of this type is not subject to the limitation contained in 42 Pa.C.S. § 5522(b)(1). Such an action is subject to the one year limitation specified in 42 Pa.C.S. § 5523(1) for an action of libel.

Because appellant’s complaint was filed within one year of the alleged libel, the trial court erred in dismissing the second count of the complaint.

The order dismissing the first count of the complaint is affirmed. The order dismissing the second count (for libel) is reversed, and the matter is remanded for further proceedings.

      . Appellant’s complaint also named as defendants the District Justice before whom the judgment had been recovered, and Aetna Casualty and Surety Company, who was the surety on Rosenwald’s bond. The causes of action alleged against these parties are not at issue on the instant appeal. The action against District Justice O’Brien was dismissed because of judicial immunity, and no appeal, was taken. Following argument of the instant appeal, preliminary objections which had been filed by Aetna Casualty and Surety Company, were sustained by the court below on grounds that' the insurance company was an improper party.

      . This statute was repealed absolutely by the Judiciary Act, Repealer Act, 42 Pa.C.S. § 20002(a)(19).

      . The trial court also concluded that the first count of the complaint, which alleged a negligent infliction of emotional distress, had failed to state a cause of action cognizable at law. We find it unnecessary to decide this issue.

      . Appellee’s preliminary objections in the nature of a demurrer did not challenge the sufficiency of this cause of action, and we express no opinion with respect thereto.