author: BROSKY, Judge:

text:
    478 A.2d 447
    COMMONWEALTH of Pennsylvania v. William McELHENNY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1983.
    Filed May 25, 1984.
    Reargument Denied Aug. 7, 1984.
    See also 273 Pa.Super. 234, 417 A.2d 254.

      Gilbert B. Abramson, Philadelphia, for appellant.
    Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   BROSKY, Judge:

This appeal is taken from judgment of sentence imposed for conviction of third degree murder. The only issue raised which will be addressed here is whether the admission at trial of evidence which was inadmissible at the time the crime was committed violates the ex post facto clauses of the Constitutions of the Commonwealth and of these United States. We find that there is no such violation and, accordingly, affirm.

The evidence in question here is a tape recording of a telephone call made by appellant to the police emergency number. Appellant made some incriminating statements during this call which were automatically recorded. At the time the recording was made it was legally made but could not be used as evidence in court. The then effective statute, 18 Pa.C.S. § 5702(c)(l)(ii), required that appellant give his written consent to the tape coming into evidence. Before this case came to trial that statute was repealed and a new one took its place under which this evidence was admissible. The tape recording was then admitted into evidence at trial.

Appellant contends that the admission at trial of this evidence which was inadmissible at the time the crime was committed violates the ex post facto clauses of the Federal and State constitutions.

The United States Constitution provides that “No state shall ... pass any ... ex post facto law ...” U.S. Const. Article 1, § 10. The basic definition of the ex post facto clause was laid down in 1798 in the landmark case of Colder v. Bull, 3 Dall. (U.S.) 386 at 390, 1 L.Ed. 648 at 650 (1798). The parameters set in Colder have been followed and amplified in the case law of the succeeding 18 decades. One portion of Colder is relevant to the issue before this Court.

I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. ... 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Id.

Under this standard the ex post facto clause was not violated sub judice. The law in question here did, indeed, alter the legal rules of evidence so that different testimony was admissible. A cursory reading of the above quotation might, on that basis, lead to the conclusion that appellant here should prevail. But a more careful reading results in the opposite holding. The law before us did not fit the rest of the quoted requirement. It did not alter the evidence necessary to convict the offender. That is, it did not change the legal definition of the crime; it did not change the prohibited behavior or what the state had to show to prove the commission of the crime. That must be the focus of our enquiry and it did not occur here.

It is understandable that a mere alteration in the admissibility of a piece of evidence does not violate the ex post facto clause when one realizes that “[i]t attempts to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties.” Commonwealth v. Hoetzel, 284 Pa.Super. 623 at 630, 426 A.2d 669 at 672. The fact that the tape recording later became admissible in no way deprived appellant of notice that killing his wife would “give rise to criminal penalties.” In Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), the United States Supreme Court addressed a situation with significant similarities to the one before us. In Hopt a category of witness — a convicted felon — who was incompetent to testify at the time the crime was committed, became competent by the time of trial. The issue treated in Hopt was whether the changed status of a witness violated the ex post facto clause. The first Justice Harlan, writing for the Court, held that there was no violation.

Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime theretofore committed, nor provide a greater punishment therefor than was prescribed at the time of its commission, nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed. The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but — essential to conviction — only removes existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged.

Hopt v. Utah, supra at 589-90, 4 S.Ct. at 210, 28 L.Ed. at 268-9.

The issue in Hopt is, admittedly, different from the one before us; we are concerned with previously inadmissible evidence and Hopt dealt with a previously incompetent witness. Nonetheless, the rationale given in Hopt sheds light, a century later, on our issue. Quite obviously, it does so to appellant’s detriment.

Fourteen years later Justice Harlan again authored an opinion of interest here. That case, Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898), is on point with the case before us. Thompson involved evidence which was not admissible at the time the crime was committed nor at petitioner’s first trial. A statutory change subsequently made the evidence — a handwriting comparison — admissible. It was used in the second trial and an ex post facto violation was alleged. That claim was rejected in language which echoed that in Hopt.

... we adjudge that the statute of Missouri relating to the comparison of writings, is not ex post facto when applied to prosecutions for crimes committed prior to its passage ... we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. The Missouri statute, when applied to this case, did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty. It did not change the quality or degree of his offense. Nor can the new rule introduced by it be characterized as unreasonable; certainly not so unreasonable as materially to affect the substantial rights of one put on trial for crime. The statute did not require “less proof, in amount or degree,” than was required at the time of the commission of the crime charged upon him. It left unimpaired the right of the jury to determine the sufficiency or effect of the evidence declared to be admissible, and did not disturb the fundamental rule that the state, as a condition of its right to take the life of an accused, must overcome the presumption of his innocence, and establish his guilt beyond a reasonable doubt. Whether he wrote the prescription for strychnine, or the threatening letter to the church organist, was left for the jury; and the duty of the jury, in that particular, was the same after as before the passage of the statute. The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the' ultimate, essential fact to be established, namely, the guilt of the accused. ... We cannot adjudge that the accused had any vested right in the rule of evidence which obtained prior to the passage of the Missouri statute, nor that the rule established by that statute entrenched upon any of the essential rights belonging to one put on trial for a public offense.

Thompson v. Missouri, supra at 386-88, 18 S.Ct. at 924-5, 43 L.Ed. at 207-8.

The rule of Thompson disposes of appellant’s Federal constitutional claim against him.

The Pennsylvania Constitution similarly mandates that “No ex post facto law ... shall be passed.” Pa. Const. Article 1, § 17. The provision of the Pennsylvania Constitution can, of course, be interpreted to provide a broader protection than a similar provision in the Federal Constitution. We do not choose to do so here for two reasons.

First, the courts of this Commonwealth have, generally, interpreted the Pennsylvania clause coterminously with the Federal clause. See Myers v. Lohr, 72 Pa.Super. 472 at 474 (1919); Commonwealth v. Hoetzel, supra 284 Pa.Super. at 630, 426 A.2d at 672 (1981).

Second, and more importantly, we find the interpretations of the Federal provision in this context consonant with our concept of justice. Those interpretations, detailed above, fully protect appellant from the mischiefs which the Pennsylvania provision was designed to prevent. Consequently, the disposition of appellant’s claim under the U.S. Constitution applies equally to his claim under the Pennsylvania Constitution.

Judgment of sentence affirmed.

POPOVICH, J., concurs in the result.

      . Five other issues are also raised by appellant. They have been properly disposed of by the trial court on well-settled principles of law, and do not merit publication. The ex post facto issue, while also correctly treated by the trial court, is not covered in the published opinions of this Commonwealth and consequently appears here.

      . Appellant raises a related issue within his ex post facto argument regarding the competency of the suppression court to rule upon the suppression issue on the basis of the new statute and regarding the alleged waiver by the Commonwealth of this ground. We do not treat these arguments on their merits because they are themselves waived through their absence in the post-verdict motions. Commonwealth v. Blair, 460 Pa. 31 at 33, n. 1, 331 A.2d 213 at 214, n. 1 (1975).

      . Under the new law, 18 P.C.S. §§ 5704(3), 5717(b), recordings of telephone calls to police emergency communications systems are admissible.

      . As has been seen, while there is precedent on the point in question vis-a-vis the U.S. Constitution, this particular issue has not been the subject of treatment under the Constitution of this Commonwealth. It is that gap which we fill here.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    478 A.2d 451
    COMMONWEALTH ex rel., Robert D. MILLER and Nellie M. Miller, his wife, v. Cindy MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1984.
    Filed May 25, 1984.

      David B. Reiss, Connellsville, for appellant.

      Murray I. Horewitz, Connellsville, for appellees.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This is an appeal from an Order entered by the Court of Common Pleas of Fayette County awarding visitation rights to appellees, the paternal grandparents of Amanda Miller, appellant’s daughter. Appellant contends that due to the hostility, tension and conflict existing in her relationship with the appellees it would be in the best interests and welfare of the child for the court to deny visitation by the appellees. We disagree, and for the reasons stated below, affirm the Order awarding visitation to the appellees.

This case originated when a petition for visitation of Amanda Miller, born February 26, 1981, was filed by Robert D. Miller and Nellie M. Miller, his wife, the appellees. On January 6, 1983, a hearing on this petition was held before the Honorable Conrad B. Capuzzi of the Court of Common Pleas of Fayette County. Testimony at this hearing revealed that the child, Amanda Miller, was born of the marriage between Alan Miller and Cindy Miller, the appellant, and that this couple had lived next door to the appellees. Testimony further disclosed that Alan Miller was involved in a fatal accident on August 18, 1981. Prior to Alan Miller’s death, the relations between appellant and her in-laws, the appellees, were stable as the parties frequently saw each other when the appellees visited their grandchild. However, shortly after the death of Alan Miller, the relationship between the parties deteriorated due to disagreements regarding which lawyer the appellant should retain to handle the civil lawsuit resulting from her husband’s death, as well as a'disagreement over appellant’s desire to buy a gravesite next to her deceased husband’s gravesite. The parties also bickered over certain items of personal property belonging to the deceased, which appellant wanted returned to her.

Since August 18, 1981, visits between the appellees and their grandchild were few and the ones which occurred were strained. Subsequent to February 26, 1982, the only visit between the child and the appellees was a pre-hearing visit ordered by Judge Capuzzi. This pre-hearing visit was observed by Margaret McGarrity, a caseworker representing Fayette County Children and Youth Services, who concluded that while the relations between the parties remained strained, the interaction between the grandparents and the child was positive.

At the conclusion of the hearing on January 6, 1983, a tentative agreement was reached between the parties for visitation by the grandparents of Amanda Miller on a regular basis. On March 31, 1983, however, a petition for rehearing was filed by the appellees alleging that appellant, while initially complying with the visitation agreement, refused to continue to allow the appellees visitation with Amanda.

On May 19, 1983, a hearing was held before the Honorable Conrad B. Capuzzi pursuant to the petition for rehearing. While no testimony was offered, statements by counsel in the presence of all parties, revealed that the visitation between appellees and Amanda went well for the first three weeks, but then discontinued.

Counsel for appellant contended that visitation had ceased because appellant disapproved of certain things which the appellees permitted the child to do during the visits. It was also alleged that the appellees attempted to extend their visits beyond the time period set by the hearing judge and did not permit appellant to comfort her child during such visits. Therefore, appellant urged the court to deny any further visitation by appellees. Despite appellant’s counsel’s requests, the court, still believing that an amicable resolution could be accomplished, directed Fayette County Children and Youth Services to once again arrange and monitor visits between the parties and to file reports on them. On June 29, 1983, a report was filed and copies were provided to counsel, who made no exceptions to its contents. The report revealed that Mimi McDonough, a caseworker, observed the visits and concluded that while the child reacted well with her grandparents, tension and conflict continued between the parties. It also noted that appellant was agreeable to visits in her home and presence.

On June 29, 1983, the court entered an Opinion and Order continuing visitation and establishing a set schedule based upon its review of the entire record. It is from this Order that the instant appeal has been filed.

The sole issue before us is whether the intra-family discord between the parties requires that the paternal grandparents’ visitation award be denied in the best interests and welfare of the child.

At the outset, we note that the instant case involves a visitation arrangement for short periods of time and not an award of custody. The Supreme Court of Pennsylvania recently differentiated these two arrangements in Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983), when it stated:

... [A]t one end of the spectrum is custody, which is a relatively permanent arrangement that involves keeping and caring for a child on a continual basis and that affords the custodian the greatest degree of day-to-day control over the child. At the opposite end of the spectrum is visitation, which allows for the least amount of control over the child and contacts of a relatively short duration since visits must be held in the presence of the child’s custodian.

Id., 500 Pa. at 260, 455 A.2d at 1182. (footnotes omitted)

Our paramount concern in both custody and visitation cases is the best interests and permanent welfare of the child. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981), “since the goal in each case is to foster those relationships which will be meaningful for the child, while protecting the child from situations which would have a harmful effect.” Commonwealth ex rel. Zaffarano v. Genaro, supra 500 Pa. at 260, 455 A.2d at 1182.

Because of situations like that before us, our legislature enacted the Custody and Grandparents Visitation Act, 23 P.S. § 1001 et seq. (1981). This Act adopts the best interests of the child standard and provides:

If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried child by the court upon a finding that visitation rights would be in the best interests of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.

23 P.S. § 1012.

Therefore, parents of deceased children may obtain reasonable visitation rights with respect to children of such deceased children whenever: “1) such visitation will be in the best interests of the child, and 2) such visitation will not interfere with the parent-child relationship.” Commonwealth ex rel. Shee v. Holewski, 316 Pa.Super. 509, 514-515, 463 A.2d 480, 483 (1983).

In a dispute between a parent and grandparents, the parent has a prima facie right to custody which will be forfeited only if convincing reasons appear that the child’s best interests will be served by an award to the grandparents. In re Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). However, we are not here concerned with an award of custody, but simply a temporary right of visitation. In Commonwealth ex rel. Williams v. Miller, 254 Pa.Super. 227, 385 A.2d 992 (1978), this Court set forth the following “sliding scale” approach in determining the burden of proof on a grandparent or other third party seeking visitation, as opposed to custody:

Since visitation is correlative to custody a similar test should apply when a third party seeks visitation, although the burden on the third party should not be so heavy, for an order granting visitation is a far lesser intrusion, or assertion of control, than is an award of custody.
When seeking visitation, a third party must show reasons to overcome the parent’s prima facie right to uninterrupted custody. However, the reasons need not be so convincing as in a custody case. In a custody case, the third party must convince the court that it is in the child’s best interest to take custody from a parent and award it to the third party. In a visitation case, the third party need only convince the court that it is in the child’s best interest to give some time to the third party. As the amount of time requested moves the visit further from a visit and closer to custody, the reasons offered in support of the request must become correspondingly more convincing.

Id., 454 Pa.Superior Ct. at 230, 385 A.2d at 994 (emphasis in original). Applying the above rationale to the instant case, the appellees need only convince this court that it would be in their grandchild’s best interests to have access to their companionship.

It has been repeatedly stated that appellate courts must exercise an independent judgment when reviewing custody or visitation cases. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981). In discussing the appropriate scope of review for custody and visitation cases, the Supreme Court of Pennsylvania has recently stated that:

[although we have held that the scope of review in custody matters is of the broadest type, and appellate courts are not bound by deductions or inferences made by a trial court, nevertheless, appellate courts “may not, and in fact cannot, substitute their own findings of fact with respect to the parties’ emotional feelings and attitudes towards one another.”

Commonwealth ex rel. Davenport v. Montgomery County Children and Youth Services, 501 Pa. 472, 476, 462 A.2d 221, 223 (1983). (Quoting Commonwealth ex rel. Zaffarano v. Genaro, supra 500 Pa. at 261, 455 A.2d at 1183). The reasoning behind this limitation on our scope of review is that the hearing judge has the opportunity to observe the demeanor of the witnesses and therefore is in the best position to determine their credibility and sincerity. Id. 501 Pa. at 475, 462 A.2d at 223-224.

Appellant relies on Commonwealth ex rel. Zaffarano v. Genaro, supra, a similar factual situation, where the maternal grandparents of the child filed for temporary custody and visitation privileges pursuant to the Custody and Grandparents Visitation Act, 23 P.S. § 1001 et seq. The Supreme Court reversed the order of the Superior Court granting temporary custody and visitation privileges to the grandparents, and reinstated the lower court’s order dismissing the grandparents’ petition. In reaching its decision, the Court pointed out that the record contained ample evidence to support the hearing judge’s finding of bitterness between the parties. The Court also concluded that due to the possible detrimental effects on the child which may result from the hostility between the parties, the benefits to the child from a relationship with its grandparents were outweighed by placing the child “in the crossfire” between the feuding parties. Id. 500 Pa. at 264, 455 A.2d at 1184.

We believe that the instant case is factually distinguishable from Commonwealth ex rel. Zaffarano v. Genaro, supra, in that there, the degree of hostility and bitterness between the parties was extensive and led to the conclusion that the conflict was irreconcilable. Here, the lower court provided a complete record as well as a comprehensive opinion which concluded that while there was animosity between the child’s mother and her grandparents, such conflict was not irreconcilable and an amicable resolution could be worked out between the parties. Moreover, there was nothing in the record to indicate that the grandparents ever acted in a fashion detrimental to the appellant’s relationship with Amanda or criticized appellant’s ability to care for the child, save for one isolated and harmless incident. On the contrary, appellees testified that they loved their grandchild very much and were capable of caring for her. Therefore, we conclude that the instant case is distinguishable from Commonwealth ex rel. Zaffarano v. Genaro, supra, in that the differences between the parties herein are not extensive and that Amanda will not suffer devastating consequences.

The relationship between a child and his or her grandparents is a special one. When a child loses a natural parent at an early age, this relationship becomes even more special as the grandparents can help to fill the void which exists due to the loss of a parent. Since the polestar of our analysis is the best interests and welfare of the child, we cannot overlook the ultimate result that grandparent visitation is beneficial for a child’s development in that it establishes family ties which can continue long beyond childhood. Only when such visitation becomes counterproductive, will we intervene and deny it.

We are aware that in certain situations, the relations between the grandparents and the child’s surviving parent deteriorate to such a degree that the friction between the parties outweighs any benefit to the child from a relationship with his or her grandparents. Commonwealth ex rel. Zaffarano, supra, 500 Pa. at 263, 455 A.2d at 1184. Here, however, we are hard-pressed to find any evidence that the child will not benefit from a continuing relationship with her grandparents. Since the visitation schedule involves only short periods of time, we conclude that it will not interfere with the child’s relationship with her mother.

Thus, we hold that the Order entered on June 29, 1983, granting the appellees’ visitation is affirmed.

Order affirmed.

POPOVICH, J., concurred in the result.

      . Specifically, appellant contended that the appellees allowed Amanda to climb steps leading from the first floor of their home to the second floor, and permitted her to play with a closed pocket knife and bubble solution.

      . Testimony revealed that the appellees were, in addition to visitation, seeking partial custody of their grandchild, but the court concluded that this would not presently be in her best interest. This decision was predicated upon the court’s view of the already delicate relationship between the parties.

      . Pennsylvania recognizes three possible custodial arrangements: “custody", “partial custody" (also called “limited custody” or "divided custody”), and “visitation". Scott v. Scott, 240 Pa.Super. 65, 69, 368 A.2d 288, 291 (1976) (Spaeth, J., Concurring). Pennsylvania Rule of Civil Procedure 1915.1(b), 42 Pa.C.S.A. adopts these terms and provides the following definitions:
      "custody” means the legal right to keep, control, guard, care for and preserve a child and includes the terms "legal custody”, “physical custody” and “shared custody;”
      "partial custody” means the right to take possession of a child away from the custodial person for a certain period of time;
      “visitation” means the right to visit a child, but does not include the right to remove the child from the custodial person’s control. Id.

      . Act of November 5, 1981, P.L. 322, No. 115.

      . In Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983), the differences between the parties were extensive and the conflict was emotionally charged. Each side accused the other of being unfit and incapable of caring for the child. Specifically, the grandparents placed the blame for the death of their daughter on the appellant, who in turn, instructed his in-laws to hide pictures of his deceased wife from the child. Id., 500 Pa. at 265, 455 A.2d at 1184.

      . While our determination regarding visitation is the opposite of that reached in Commonwealth ex rel. Zaffarano v. Genaro, supra, both decisions upheld the findings of the lower court.

      . Our review of the record has disclosed that appellant has created most of the problems between the parties by refusing to cooperate and allow the appellees to visit with Amanda. This conclusion is supported by the reports of the caseworkers which indicate that appellant experiences anxiety whenever she is separated from her child and believes that she is the only one who can care for her child.


text:
    478 A.2d 456
    Anthony DEL TURCO and Rita M. Del Turco, Appellants, v. PEOPLES HOME SAVINGS ASSOCIATION Successor by Merger to Home Protection Savings and Loan Association, and Beaver Valley Intermediate Unit No. 27.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1984.
    Filed May 25, 1984.

      H. Klein, Aliquippa, for appellants.
    George A. Verlihay, Beaver Falls, for appellees.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This appeal arises from an Order of the Court of Common Pleas of Beaver County, dated March 9, 1982, that sustained appellee’s preliminary objections and dismissed appellant’s complaint in assumpsit and trespass. The issues presented on appeal primarily concern the res judicata effect of a judgment suffered by appellants, Anthony and Rita Del Turco, in a mortgage foreclosure action brought by appellee, Peoples Home Savings and Loan Association, upon a subsequent suit brought by appellants against appellee. After thoroughly examining appellants’ arguments, we affirm.

On February 28, 1974, appellants obtained a loan of $475,000 from Peoples Home Savings and Loan Association [hereinafter Peoples Home] to finance the construction of an office building. Pursuant therewith, appellants executed a mortgage covering two parcels of land situated in Beaver County, Pennsylvania and a mortgage note in the amount of the loan. In May 1975, Peoples Home initiated a mortgage foreclosure action against appellants (No. 883 of 1975, Beaver County) since appellants had failed to make the monthly payments required by the terms of the mortgage and mortgage note. Appellants failed to respond to the complaint filed by Peoples Home. See Pa.R.C.P. 1141, 1148. On June 26, 1975, Peoples Home took a judgment against appellants in the amount of $537,784 and caused a writ of execution to be issued upon the subject realty. On August 15, 1975, the two parcels of land securing the loan obligation were sold at sheriffs sale and a schedule of distribution was made. Appellants neither took exception to the issuance of the writ of execution nor petitioned to set aside the sheriffs sale. See Pa.R.C.P. 3181, 3183(e), and 3132. On June 5, 1981, appellants caused to be filed a complaint in trespass and assumpsit against Peoples Home. Counts I-IV of the complaint set forth the following averments:

“COUNT I

“10......

“11. In December, 1974, there remained a $6,987.15 balance available from the proceeds of said $475,000 loan for purposes of paying obligations incurred by plaintiffs in connection with the construction of the office building mentioned above.

“12. At that time, plaintiffs requested defendant Home Pro to use said sum of $6,987.15 to pay Rawding Electric for certain necessary electrical work, and Home Pro, through its President, Earl F. Klear, promised to do so but subsequently failed and refused to do so despite repeated requests.

“13. Nor did defendant Home Pro ever credit plaintiffs’ mortgage loan account in said amount of $6,987.15 up to and including August 15, 1975, the date on which mortgage foreclosure proceedings on said $475,000 mortgage was completed.

“WHEREFORE, plaintiffs request that a judgment be entered in their favor and against defendant, Peoples Home Savings Association, in the amount of $6,987.15, together with interest from August 15, 1975.

“COUNT II

“14......

“15. For the period March 1, 1975 through August 15, 1975, defendant Home Pro, as mortgagee in possession, received rentals from tenants in plaintiffs’ premise totalling $21,938.93 but Home Pro credited only $11,733 to plaintiffs’ loan account.

“16. On or about May 27, 1975, defendant Home Pro received $5,000 from the other defendant herein, Intermediate Unit, for “excess electricity used”, under terms of the Lease between plaintiffs, as Lessor, and the Intermediate Unit as Tenant. A copy of said Lease is attached hereto, marked Exhibit “B” and made part hereof.

“17. Said Lease provides, in pertinent part, as follows:

“ ‘... It is understood and agreed that should the total cost for electrical power furnished to the premises exceed Three Thousand ($3,000.00) Dollars for the twelve (12) month period beginning with the anniversary date of Lessee’s taking possession, then Lessee shall reimburse Lessor in full for that amount by which the cost for electrical power exceeds Three Thousand ($3,000.00) Dollars for such twelve (12) month period____’

“18. Defendant Intermediate Unit took possession of the premises on March 1, 1974.

“19. Billing for electrical power used on said premises leased by the Intermediate Unit reached $3,000 on or about August 1, 1974 and reached $8,000 on or about November 15, 1975, all of which billings were paid to Duquesne Light Company by the plaintiffs.

“20. On or about May 3, 1975, defendant Home Pro charged plaintiffs’ loan account with $4,500 for electricity billed by Duquesne Light but said defendant paid only $3,500 to Duquesne Light for the credit of plaintiffs’ account.

“WHEREFORE, plaintiffs request that a judgment be entered in their favor and against defendant, Peoples Home Savings Association, in the amount of $16,205.53, together with interest from August 15, 1975.

“COUNT III

“21. The provision contained in said $475,000 Mortgage, dated February 28, 1974, calling for a charge against plaintiffs, as mortgagors, for an attorney’s commission of five per cent of the total indebtedness, in case of default and foreclosure, is unconscionable.

“22. The attorney’s commission charged against plaintiffs in the herein mentioned foreclosure proceedings was $25,-609, and was grossly excessive, unfair and unreasonable.

“23. An attorney’s commission of $2,560.90 would have been fair and reasonable compensation for the time, effort and responsibility involved in said foreclosure proceedings; and an attorney’s commission of $5,121.80 would have been a relatively princely sum for same.

“WHEREFORE, plaintiffs request that a judgment be entered in their favor and against defendant Peoples Home Savings Association, in the amount of $20,487.20, together with interest from August 15, 1975.

“COUNT IV

“24.....

“25. In the event that the plaintiffs’ mortgage loan account had been properly and timely credited with the items referred to in said preceding paragraphs, plaintiffs would have been able to timely cure any default and avoid foreclosure.

“26. After foreclosure proceedings were begun but before they were concluded, plaintiffs discussed with defendant Home Pro, in the person of the said Mr. Klear, its President, Chief Executive Officer and Chief Operating Officer, various proposals designed to avert foreclosure and permit plaintiffs to retain their equity in the herein premises, which then was a little more than $100,000.

“27. In July, 1975, plaintiffs called Mr. Klear and advised him that plaintiffs had a bona-fide prospective purchaser for said Lot No. 2, with office building erected thereon, for a price of $350,000, and asked if defendant Home Pro would release the lien of the mortgage on said lot if all of the proceeds of said sale were paid over to Home Pro. Mr. Klear said no on behalf of Home Pro, and further stated that Home Pro would release the lien only if Home Pro would receive $450,000.

“28. In July, 1975, the balance due on plaintiffs’ mortgage loan with Home Pro was approximately $500,000, according to the records of Home Pro.

“29. The fair market value of said Lot No. 3 with restaurant building erected thereon was $275,000 in July, 1975.

“30. Plaintiffs’ property, said Lots No. 2 and No. 3, were sold upon foreclosure by Home Pro for the amount due from plaintiffs, approximately $550,000, including interest, costs and attorney’s commission, although its fair market value was not less than $600,000 at that time.

“31. Home Pro thereupon loaned the purchaser $675,000, including $125,000 to complete the office building.

“32. The fair market value of Lot No. 2 with the unfinished office building thereon in July, 1975 was $325,000, and when completed its market value was not less than $450,-000.

“33. The purchaser from Home Pro resold the combined parcels on the open market, in a willing buyer, willing seller situation, on September 1, 1977, just two years after foreclosure, for $812,500.

“34. It is common practice among lending institutions in the Beaver County area and elsewhere, that when a mortgage covers two or more parcels of separate and distinct real estate, with improvements erected upon each, to release one parcel from the lien of the mortgage when the mortgagor wishes to sell it, provided that all of the proceeds of the sale or a portion of the proceeds, as determined by the lending institution, is paid over to the lending institution, and provided further, that the remaining parcel or parcels provides adequate security for the remaining balance which would then be due on the mortgage loan. “35. Defendant Home Pro, with malicious intent to do injury unto plaintiffs, and with callous disregard of the interests of plaintiffs, its steadfast, faithful customer for 27 consecutive years, refused to permit plaintiffs to sell one parcel as outlined in the preceding paragraph, although Home Pro would have been adequately protected if such a proposal had been approved.

“36. Said refusal was a malicious act on the part of Home Pro, unnecessary to protect the interests of Home Pro, and with the result of destroying plaintiffs financially and thereby wiping out a lifetime effort produced by plaintiffs’ sweat and tears.

“37. As a direct and proximate result of said actions of defendant Home Pro, plaintiffs lost their equity of $100,000 in said real estate, and suffered extreme mental anguish.

“WHEREFORE, plaintiffs request that a judgment be entered in their favor and against defendant, Peoples Home Savings Association, in the amount of $200,000 ($100,000 in compensatory damages, together with interest from August 15, 1975 and $100,000 in punitive damages.)”

Peoples Home responded to the complaint by filing preliminary objections in the nature of a demurrer to each count pleaded. On March 9, 1982, the lower court, finding that Counts I — III were barred by res judicata and Count IV by its failure to state a cause of action, sustained the preliminary objections and dismissed the complaint. Appellants’ petition for reconsideration was denied and this appeal followed.

Initially we note the appropriate standard of review, as expressed in Donnelly v. DeBourke, 280 Pa.Super. 486, 489, 421 A.2d 826, 828 (1980) (Citations omitted):

[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom. ... [Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

Appellants first contend that the defense of res judicata was improperly raised in the form of preliminary objections rather than in a responsive pleading under “new matter” as required by Pa.R.C.P. 1030. It is settled principle that unless the complaint sets forth in detail, either directly or by reference, the essential facts and issues pleaded by the prior suit, the affirmative defense of res judicata must be raised in a responsive pleading under the heading of new matter and not by preliminary objection. Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968); Kiely v. J.A. Cunningham Equipment Inc., 387 Pa. 598, 128 A.2d 759 (1957); Goodrich Amram 2d § 1017(b):11; See also Dunham v. Temple University of Commonwealth System of Higher Education, 288 Pa.Super. 522, 432 A.2d 993 (1981); Duquesne Slag Products Company v. Lench, 44 Pa.Commw. 385, 403 A.2d 1065 (1979), aff’d 490 Pa. 102, 415 A.2d 53 (1980). Where, as here, the complaint makes repeated references to the prior mortgage foreclosure action and contains facts and issues pleaded by the prior action, the affirmative defense of res judicata is properly raised by preliminary objections.

Finding as we do that the affirmative defense of res judicata was properly raised by way of preliminary objections, we next decide whether the lower court properly sustained Peoples Home’s defense of res judicata to the first three counts of appellants’ complaint.

In Martin v. Poole, 232 Pa.Super. 263, 268, 336 A.2d 363, 366 (1975) this court stated:

Res judicata literally means a matter adjudged or a thing judicially acted upon or decided. From long usage it has come to encompass generally the effect of one judgment upon a subsequent trial or proceeding. Two quite distinct aspects are included: first, the effect of a judgment in a subsequent action between the parties based upon the same cause of action; second, the effect on the parties in a trial on a different cause of action. (Citation omitted) (emphasis in original). The first effect is known as merger and bar, “technical” res judicata, or simply “res judicata”; the second is known as collateral estoppel.

For the doctrine of res judicata to apply, a concurrence of four conditions must be shown: (1) Identity in the things sued upon or for; (2) Identity of the cause of action; (3) Identity of persons and parties to the action; and (4) Identity of the quality or capacity of the parties suing or sued. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975); Stevenson v. Silverman, 417 Pa. 187, 190, 208 A.2d 786, 787, 788 (1965), cert. denied 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965); Martin v. Poole, supra.

In the instant matter, it is not easily discernible whether the two actions constitute a single cause of action or two distinct causes of action arising out of a single transaction. Appellants insist upon the latter. In support thereof, they contend that res judicata does not bar the litigation of Counts I — III since Pa.R.C.P. 1148, governing counterclaims in foreclosure actions, does not make compulsory the assertion of a counterclaim arising out of the same transaction or occurrence from which the claim of Peoples Home arose. Absent a statute or rule of court, they continue, the failure to allege certain facts either as a counterclaim or set off in the mortgage foreclosure action does not preclude them from relying upon those facts in a subsequent action brought by them against Peoples Home. Appellants rely upon the case of Martin v. Poole, supra, in support of this proposition.

Martin v. Poole, supra, exposes the tension between res judicata theory and permissive counterclaim pleading practice in Pennsylvania. This tension is made particularly apparent by a situation in which a defendant in the first action, who was the plaintiff in the subsequent suit, fails to interpose a permissive counterclaim in the first action.

Martin, the appellant, initiated a trespass action against Poole, the appellee, for personal injuries allegedly suffered as a result of Poole’s negligence in an automobile accident involving the two. During the pendency of the suit, Poole commenced a separate trespass action against Martin, the case of Poole v. Martin. Martin did not contest this suit and a default judgment against him was taken by Poole. Subsequently, Poole moved for a summary judgment in the first action, Martin v. Poole, on the theory that the default judgment in the case of Poole v. Martin barred the litigation. The lower court granted the motion for summary judgment and Martin appealed to our court. We held that the trespass action initiated by Martin was not barred by res judicata since each suit was a different cause of action. We further held that the issue of Poole’s negligence was not determined by the principle of collateral estoppel since the default judgment taken against Martin by Poole did not actually litigate any negligence issue. In so holding, our court found that the factual situation before it was essentially identical to that stated in Illustration I to comment (b) to § 58 Restatement of Judgments, setting forth the following:

‘A brings an action against B for the negligent driving of an automobile by B resulting in a collision with an automobile driven by A. B fails to plead and judgment by default is given against him. B is not precluded from subsequently maintaining an action against A on the ground that the harm which he suffered was the result of A’s negligence.’ Martin v. Poole, supra, 232 Pa.Super. at 270, 336 A.2d at 367.

Presented with this factual situation, the court quoted with approval the general rule set forth in § 58, Restatement of Judgments pertaining to the effect of the failure to interpose a counterclaim:

‘[wjhere the defendant does not interpose a counterclaim although he is entitled to do so, he is not precluded thereby from subsequently maintaining an action against the plaintiff on the cause of action which could have been set up as a counterclaim.’ Martin v. Poole, supra, 232 Pa.Super. at 270, 336 A.2d at 367.

We could distinguish Martin v. Poole, supra, from the instant suit if we should find, as did the lower court, the requisite identity of cause of action present. In a fundamental way, the subject matter, issues, facts and evidence in the instant suit are so inextricably interwoven with that of the first suit that further judicial consideration would be the relitigation of the same controversy. However, we are persuaded that the situation before us is governed by Restatement (Second) of Judgments § 22 (1980), which is the progeny of § 58, Restatement of Judgments relied upon by our court in Martin v. Poole, supra. This section provides:

(1) Where the defendant may interpose a claim as a counterclaim but he fails to do so, he is not thereby precluded from subsequently maintaining an action on that claim, except as stated in Subsection (2).
(2) A defendant who may interpose a claim as a counterclaim in an action but fails to do so is precluded, after the rendition of judgment in that action, from maintaining an action on the claim if:
(a) The counterclaim is required to be interposed by a compulsory counterclaim statute or rule of court, or
(b) The relationship between the counterclaim and the plaintiffs claim is such that successful prosecution of the second action would nullify the initial judgment or would impair rights established in the initial action.

Subsection (2)(b) encompasses the situation where, as here, two claims have such a measure of identity and are so inextricably intertwined that a different judgment in the second action would operate to nullify or substantially impair rights or interests established by the judgment in the first.

In the instant matter, appellants present a restitutionary theory of recovery that, in essence, challenges the amount of debt paid Peoples Home pursuant to judgment in the mortgage foreclosure action. In Counts I, II, recovery of sums allegedly neither paid by Peoples Home to Rawding Electric nor properly credited to appellants’ mortgage loan account is sought. In Count III, recovery of an amount in excess of what appellants allege to have been the reasonable value of attorney’s services rendered in the mortgage foreclosure action is demanded. Clearly, the litigation of these counts, if successful, would operate to undermine the initial judgment of Peoples Home. See Restatement (Second) of Judgments § 58, Comment F, Illustration 9, 10 (1980); See also, In Re Estate of Banes, 479 Pa. 264, 388 A.2d 319 (1978) (per curiam, equally divided court). Therefore, we conclude that the preservation of the integrity of judgments and the principle of finality underpinning res judicata theory requires preclusion from judicial consideration the averments set forth in Counts I-III. Appellants had full opportunity to make these claims in the mortgage foreclosure action but failed to do so. As such, the preliminary objections to Counts I — III were properly sustained by the lower court.

Appellants’ last contention is that the lower court erred in sustaining Peoples Home’s preliminary objection to Count IV. Appellants allege that in July of 1975, subsequent to their default under the terms of the mortgage agreement, a purchaser for one of the two parcels of land covered by the subject mortgage had been secured by them. They further allege that Peoples Home maliciously failed to follow common banking practice of releasing one of the parcels of realty from the lien of the mortgage so that they could sell it to their purchaser. We concur with the lower court that on its face the paragraphs contained in Count IV do not state a legally cognizable claim against Peoples Home. No allegation of legal duty, breach, causation and injury in fact are set forth therein. With respect to the latter, the injury alleged is based only on speculation and not on events that actually transpired. In addition, the mortgage instrument does not require the mortgagee to release a parcel of land from the lien of the mortgage upon demand by the mortgagor.

Appellants argue, however, that Peoples Home acted fraudulently in the mortgage foreclosure sale of the subject property. Though they acknowledge that their complaint is deficient in setting forth such an allegation, they urge that any pleading inadequacy could have been cured by amendment. Appellants premise this argument upon their discovery, after default and sale of realty, that the subject realty had been sold by Peoples Home to the purchaser with whom they had been dealing. This was alleged in appellants’ brief in opposition to the preliminary objections of Peoples Home and in their petition for reconsideration. Consequently, appellants contend, the lower court abused its discretion by denying them leave to amend.

It is true that appellants failed to exercise their right to amend their pleading within the ten-day period prescribed by Pa.R.C.P. 1028(c). Nevertheless, where it is apparent that a pleading can be cured by amendment, the lower court may not sustain a demurrer that would put an end to a controversy without giving the pleader an opportunity to file an amended complaint, if there exists a reasonable possibility that a cause of action may be sustained. Otto v. American Mutual Insurance Company, 482 Pa. 202, 393 A.2d 450 (1970); Dietrich Industries, Inc. v. Abrams, 309 Pa.Super. 202, 455 A.2d 119 (1982); Harley Davidson Motor Company, Inc. v. Hartman, 296 Pa.Super. 37, 442 A.2d 284 (1982); Framlau Corporation v. County of Delaware, 223 Pa.Super. 272, 299 A.2d 335 (1972). Though the right to amend a pleading is to be construed liberally, amendment will not be permitted after the running of the statute of limitations if it introduces a new cause of action. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981); Kuisis v. Baldwin-Lima-Hamilton Corporation, 457 Pa. 321, 319 A.2d 914 (1974); Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983); Stulz v. Boswell, 307 Pa.Super. 515, 453 A.2d 1006 (1982); Sanchez v. City of Philadelphia, 302 Pa.Super. 184, 448 A.2d 588 (1982); Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978). The purpose of this rule is to prevent prejudice to the adverse party. Daley v. John Wanamaker, Inc., supra; Junk v. East End Fire Department, supra.

As stated in Junk v. East End Fire Department, supra, 262 Pa.Super. at 490-491, 396 A.2d at 1277:

... [A] new cause of action does not exist if plaintiffs amendment merely adds to or amplifies the original complaint or if the original complaint states a cause of action showing that the plaintiff has a legal right to recover what is claimed in the subsequent complaint. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 460, 219 A.2d 676, 678-79 (1966); Arner v. Sokol, 373 Pa. 587, 591, 96 A.2d 854, 855-56 (1953); 3 Standard Pennsylvania Practice 682. A new cause of action does arise, however, if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed. 2B Anderson Pennsylvania Civil Practice, 66 1033.28 and 1033.31.

Here, a new cause of action does arise subsequent to the running of the statute of limitations since an amendment setting forth fraud in the judicial sale would propose a different theory of recovery, and would introduce operative facts not mentioned in the original pleading. Accordingly, the lower court did not abuse its discretion by denying leave to amend.

Having found that the lower court properly sustained the preliminary objections of Peoples Home to all counts contained in appellants’ complaint, we affirm the lower court order of March 9, 1982.

Order affirmed.

      . Peoples Home Savings and Loan Association is the successor entity to a merger in 1980 of Peoples Home Savings and Loan Association and Home Protection Savings and Loan Association.

      . Appellants also joined Beaver Valley Intermediate Unit No. 27, named in the caption of this appeal, in a separate count in its complaint. By its paragraph 39, appellants sought recovery of payments made by Beaver Valley to Peoples Home, as mortgagee in possession, for excess electricity used. We note that the judgment and order appealed from to our court, and the issues raised in the instant appeal, pertain only to Peoples Home. The record before us indicates that Beaver Valley responded to appellants' complaint by filing an answer.

      . Pa.R.C.P. 1148 provides that in an action of mortgage foreclosure:
      A defendant may plead a counterclaim which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose. Goodrich-Amram states:
      It [Rule 1148] restricts every defendant to claims which arise from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose ... No defendant may now set off a claim against the plaintiff simply because its nature is contractual or quasicontractual, as allowed in assumpsit actions.
      The claim must now arise, in some manner, from the mortgage relationship. A counterclaim could be filed, for example, for damages for breach of warranty of title to the mortgaged premises. [Cf. Wacker v. Straub, 88 Pa. 32 (1878).] Also, it has been held that defendant may counterclaim for the balance due from plaintiff on a construction contract in connection with which the mortgage was given. [Genel v. Vacca, 39 Del.Co.Rep. 191 (1952)]. On the other hand, a counterclaim could not be filed for professional services rendered by the mortgagor to the mortgagee, at least if unrelated to the mortgage. [Cf. Bechtel v. Green, 17 Berks Co.L.J. 41 (1924).] 3 Goodrich-Amram 2d, § 1148:1, p. 488.
      In Mellon Bank N.A. v. Joseph et ux., 267 Pa.Super. 307, 317, 406 A.2d 1055, 1060 (1979), a panel of our court affirmed an order striking a counterclaim in an action of mortgage foreclosure because the allegations in the counterclaims "were not part of, or incident to, the creation of the mortgage itself.” Accord, Warden v. Zanella, 283 Pa.Super. 137, 423 A.2d 1026 (1980); Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 410 A.2d 344 (1980). Appellants neither contend nor could they contend that their claims are not incident to the creation of the mortgage itself.

      . See also, Sobol v. Will Allen Builders, Inc., 244 Pa.Super. 486, 368 A.2d 825 (1976).

      . We also stated, as dictum:
      Finally, even assuming arguendo that the two suits did involve the same cause of action, it was appellee, rather than appellant, who was guilty of splitting a cause of action by bringing a separate suit in the same Common Pleas court, rather than interposing a counterclaim in the original suit as allowed under Rule 1046. Martin v. Poole, supra, 232 Pa.Super. at 270, 336 A.2d at 367.
      We note that the concern regarding splitting a cause of action in its usual context refers to a situation where a valid and final judgment in favor of a plaintiff extinguishes that plaintiffs right, pursuant to bar and merger, to maintain a second action against a defendant based upon the same transaction. Restatement (Second) of Judgments § 24 (1980). In Martin v. Poole, supra, it was Poole, the defendant in the first action, who was the plaintiff in the second action, that “split” the cause of action by failing to interpose a permissive counterclaim in the first action. In the instant matter, appellants, likewise, failed to interpose a permissive counterclaim to the mortgage foreclosure action.

      . Even if we were to characterize appellants' claims as defenses to the mortgage foreclosure action, appellants would be precluded from attacking the judgment collaterally. The law provides adequate remedies for obtaining direct relief for defective default judgments and appellants failed to avail themselves of the opportunity. See Roberts v. Gibson, 214 Pa.Super. 220, 251 A.2d 799 (1969).

      . At the time of the instant suit, a six-year statute of limitations governed actions to set aside a judicial sale of property. Act of July 9, 1976, P.L. 586, No. 142, Sec. 2, 42 Pa.C.S.A., Sec. 5527. The limitation period had expired by the time appellants requested leave to amend on March 17, 1982.
      Commencement of this action is now governed by 42 Pa.C.S.A. § 5522(b)(5).


author: POPOVICH, Judge:

text:
    478 A.2d 465
    COMMONWEALTH of Pennsylvania v. Richard A. HENCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed June 15, 1984.
    Reargument Denied Aug. 7, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Paul S. Foreman, Altoona, for appellant.
    Phillip D. Johns, Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence of 6 to 23V2 months imprisonment, imposed by the Court of Common Pleas of Blair County (per Judge Behrens) following a bench trial in which the appellant, Richard Henck, was found guilty of Recklessly Endangering Another Person. 18 Pa.C.S.A. § 2705. We affirm.

The facts, viewed in a light most favorable to the verdict-winner, consist of the following: On February 27, 1982, at 8:27 p.m., Lieutenant Fred W. Schmidhammer was parked in the lot of the Central Pennsylvania National Bank, which is situated at the intersection of 16th Street and Third Avenue in the Borough of Duncansville, Blair County. He observed the appellant driving north on 17th Street and straight through the Third Avenue intersection. Because the intersection is regulated by numerous traffic control devices, which prohibit any kind of movement “other than a right turn,” (N.T. 8/19/82 at 11), when the appellant drove “straight across” the intersection, Lieutenant Schmidhammer pursued with lights and siren operating.

Appellant came to a stop in the Dairy Queen driveway and was asked by the officer to produce a license, registration and proof of no-fault insurance. Appellant was not able to produce any such identification, and, despite his protestation that “he was in a hurry to go to the hospital because his baby was” there (N.T. 8/19/82 at 13), the officer informed him that he would have to remain in the vehicle until the operator’s status was checked with headquarters.

After the officer went back into his automobile, “the defendant put his car in gear and proceeded to move away.” (N.T. 8/19/82 at 14) In particular, the officer testified that:

... the defendant drove very erratically, accelerated very fast on the entrance drive to Dairy Queen. He turned right onto 16th Street ... heading south coming onto Third Avenue, Route 22 ..., there’s a stop sign there. He disregarded the stop sign and accelerated very rapidly across Third Avenue and proceeded south on 16th Street in the borough of Duncansville. (N.T. 8/19/82 at 14-15)

As just recounted by the officer, when the appellant drove south on 16th Street, he drove through an intersection controlled by a stop sign. In doing so, appellant “drove in front of” several vehicles coming off of a roadway controlled by a light, known as the Duncansville intersection — which is a point in the highway located before the intersection of 16th Street and Third Avenue. However, there were several vehicles traveling east on Third Avenue, while a few were approaching the intersection from the opposite direction, i.e., west bound. As the officer recalls the scene:

Two vehicles had to stop that were headed east bound. The first, what I would call the lead vehicle, which would be closest to Mr. Henck’s vehicle braked very rapidly. The second vehicle behind braked very rapidly, just narrowly missing a rear-end collision at that point in time. (N.T. 8/19/82 at 15)

Furthermore, on cross-examination, the officer indicated that when the appellant drove through the stop-sign-controlled-intersection, if the appellant had been traveling any slower “there would have been a collision.” (N.T. 8/19/82 at 24) Even so, it was but a “narrow miss” that an accident did not occur, for when the first vehicle applied its brakes to avoid striking the appellant on the side, “the front end dived down.” Id.

The appellant was chased for over three-quarters of a mile by the officer, at speeds approaching 65-70 m.p.h. on a 35 m.p.h. posted road, before he was apprehended outside the borough of Duncansville. After hearing the aforementioned evidence, the trial judge found the appellant guilty of recklessly endangering another person, as well as other summary offenses. See note 1, supra.

On appeal, counsel for the appellant argues that the “evidence does not support the conclusion, beyond a reasonable doubt, that his [client’s] conduct placed or may have placed another person in danger of death or serious bodily injury.” (Appellant’s Brief at 13)

In support of such a claim, appellant’s counsel directs us to Commonwealth v. Thompson, 292 Pa.Super. 108, 436 A.2d 1028 (1981), which is the only case to touch upon the issue at hand by reversing and remanding a reckless endangerment conviction. Further, counsel points out that “... there is no evidence of the speed of the defendant’s vehicle at the time he crossed Route 22 [ — also known as Third Avenue;] ... no evidence of any injury to any person[;] ... no evidence of any person being thrown about in any vehicle so as to raise the risk of serious bodily injury or death [; and, lastly,] ... no evidence of the distance between the defendant’s vehicle and the two east-bound vehicles.” (Appellant’s Brief at 15)

Thus, counsel postulates, “[i]f this conviction stands, it is hard to imagine any case where a person convicted of reckless driving could not also be convicted of reckless endangerment.” Id. at 16.

We disagree with appellate counsel’s hypothesis, for its premise does not withstand the light of scrutiny, be it in a case law context or in a factual setting.

The statute which appellant complains he did not contravene, beyond a reasonable doubt, reads:

Recklessly endangering another person
A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

Act of 1972, December 6, P.L. 1482, No. 334, § 1, effective June 6, 1973; 18 Pa.C.S.A. § 2705.

Commonwealth v. Thompson, supra, which is offered by the appellant in support of his claim, is unpersuasive.

In Thompson, the facts reveal that the accused was traveling at an excessive speed, “bottomed out” his vehicle, lost control and caused injury to his passenger, himself and the driver of another vehicle while going through an underpass. Thompson was taken to a hospital and purportedly initialed a consent form to have his blood tested for alcohol. At a suppression hearing, the court denied appellant’s contention that the blood test was not voluntarily secured.

At trial, evidence of Thompson’s intoxication was introduced into evidence, and he was convicted of driving while intoxicated and recklessly endangering another. On appeal, a panel of this Court, in a per curiam Opinion, concluded that the seizure of the blood was constitutionally infirm. This had a direct bearing on the Thompson Court’s determination of sufficiency as to the recklessly endangerment conviction; viz.:

Finally, appellant asserts that the trial court had insufficient evidence upon which to convict him of recklessly endangering another. The Commonwealth was required to prove beyond a reasonable doubt that the appellant acted in a manner which involved a conscious disregard of risk.
* * 4c * * *
The evidence had at trial which we have not already held impermissibly admitted — the blood test results — included evidence that Thompson was driving at a high speed, that his car “bottom[ed] out” while passing through an underpass and that a passenger in his car, the driver of another car and he were injured. There [sic] are all circumstantial facts upon which the trial court may base its verdict only where: “ ‘the theme of guilt must flow from the facts and circumstances proved and be consistent with them all.’ Commonwealth v. Clinton, 391 Pa. 212, 218, 137 A.2d 463, 466 (1958).” As appears in Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970).
In light of our determination that the blood test results were improperly admitted into evidence, we are unable to find, from a reading of the entire record, that the trial court drew its decision from facts and circumstances consistent with a finding of guilt beyond a reasonable doubt. Thus, it did not have sufficient evidence to reach its decision.

Id., 292 Pa.Superior Ct. at 116-117, 436 A.2d at 1032-1033.

What is to be gleaned from the preceding is that proof of the “conscious disregard of risk” is a sine qua non to a conviction under Section 2705. Since this element of culpability (“recklessness”) encompasses a “conscious disregard of a substantial and unjustifiable risk ... known to [the actor,]” 18 Pa.C.S.A. § 302(b)(3), the Court’s finding in Thompson that the accused’s “conscious, voluntary consent [was] improbable” as to the blood test, a fortiori it had no choice but to find the absence of the same element necessary to substantiate a conviction for recklessly endangering another person.

Instantly, unlike in Thompson, we have no evidence to indicate that Richard Henck was not conscious that he had disregarded a stop sign at the Duncansville intersection and “narrowly missed” causing a collision with at least one vehicle traveling east-bound on Third Avenue. It was only the defensive driving of the lead vehicle and trailing vehicle that averted a serious accident and not, as counsel for the appellant would have us believe, the excessive speed at which the accused was moving.

Based on the proximity of the vehicles and the speed at which the appellant was traveling through a controlled intersection, we have no hesitation in concluding that Henck “recklessly engage[d] in conduct which place[d] or may [have] place[d] another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. A contrary conclusion would be to allow the appellant, and those in his stead, to act with impunity when the particular circumstances warrant otherwise.

As was so aptly articulated by the sentencing court, “the lack of respect for the safety of others on a busy highway ... [ ]as exemplified by this defendant is absolutely intolerable....” (N.T. 12/2/82 at 13)

Lastly, to appellant’s counsel’s prophetic remarks that henceforth a person convicted of reckless driving could also be convicted of reckless endangerment, we direct his attention to the fact that: 1) an appeal is from a judgment of sentence and not a conviction, see Commonwealth v. Smith, 322 Pa.Super. 389, 469 A.2d 676 (1983); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983); and 2) if such were to occur out of a “single act,” sentences on both would be prohibited. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941).

Judgment of sentence affirmed.

LIPEZ, J., concurred in the result.

      . At the same proceeding, appellant was found guilty of driving while his operating privileges were suspended (1 year probation; 75 Pa.C. S.A. § 6503); fleeing or attempting to elude police ($200 fine; 75 Pa.C.S.A. § 3733(a)); failing to obey traffic control devices ($25 fine; 75 Pa.C.S.A. § 3323(b)); not driving his vehicle at a safe speed ($25 fine; 75 Pa.C.S.A. § 3361). Appellant does not question the sufficiency of the evidence as to these offenses.
      It requires mention that the appellant also was charged with five (5) additional motor vehicle violations arising out of the incident in question, but the Commonwealth’s attorney nolle prosequi these at the time of trial. (N.T. 8/19/82 at 8-9)

       18 P.S. 2705, 18 P.S. 302(3).


author: WICKERSHAM, Judge:

text:
    478 A.2d 469
    COMMONWEALTH of Pennsylvania v. Eden Richard MOYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1983.
    Filed June 22, 1984.

      John A. Bednarz, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   WICKERSHAM, Judge:

On May 21, 1979, appellant was certified for trial as an adult by the lower court, after hearing. Subsequently, appellant entered a guilty plea to the charges of third degree murder and robbery. Appellant thereafter appealed to the Pennsylvania Supreme Court, raising the issue of error in refusing to transfer his case to Juvenile Court. The Pennsylvania Supreme Court affirmed the sentence of the lower court. Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982). In its opinion the court noted that:

On January 29, 1979, appellant, then seventeen years of age, was arrested and charged in connection with the January 16, 1979 robbery-murder of John Kenvin, who was robbed and beaten to death with a blunt instrument. On April 12, 1979, appellant filed a motion to transfer the case from the Criminal Division of the Court of Common Pleas of Luzerne County to Juvenile Court, pursuant to Section 6322 of the Juvenile Act, 42 Pa.C.S. § 6322. The trial court denied the motion to transfer on May 21, 1979, following a counselled evidentiary hearing. The following day, appellant pleaded guilty to charges of murder of the third degree and robbery. On June 27, 1979, appellant was sentenced to concurrent terms of ten to twenty years imprisonment on each conviction.

Id., 497 Pa. at 645, 444 A.2d at 102 (footnote omitted).

On August 8, 1979, the appellant filed a Post-Conviction Hearing Act Petition , alleging ineffective assistance of counsel and an unlawfully induced guilty plea. On October 4, 1979, the lower court entered an order remanding the petition for the purpose of having the appellant set forth which of the alleged facts he knew before and after his guilty plea. The appellant never pursued the PCHA petition of August 8, 1979.

Subsequently, in February of 1982, through his present counsel, appellant filed a second PCHA petition alleging ineffective assistance of counsel, an unlawfully induced guilty plea, lack of factual basis for the guilty plea and after-discovered evidence. In paragraph seven of his second petition, appellant denied having taken a direct appeal from his conviction and denied previous proceedings under the Post Conviction Hearing Act. On July 7, 1982, the Court dismissed the PCHA petition stating in the Order:

(1) In Para. 7(A) the Petitioner answered “NO”. In fact, an appeal was taken on his behalf filed to No. 294 January Term 1978 in the Supreme Court of Pennsylvania. The sentence was affirmed April 23, 1982.
(2) More importantly, the Petitioner answered Para. 7(B) “NO”. This is not true. This Court, on October 4, 1979, following a Post Conviction Hearing Petition of the Petitioner, ordered the Petitioner to file a more specific petition. He subsequently abandoned it. In that Petition, although he marked substantially the same blocks on Page 2 of the Petition, he did not advance the same reasons therefor.

Thereafter, this appeal was timely filed.

On May 22, 1979, Eden Richard Moyer, appellant, appeared before the Honorable Bernard C. Brominski, President Judge in the Court of Common Pleas of Luzerne County, represented by John J. Thomas, Esquire, Assistant Public Defender and Jonathan Blum, Esquire, Assistant Public Defender. At that time a full colloquy was taken in conjunction with a plea of guilty that appellant entered, namely a plea of guilty to third degree murder and a plea of guilty to robbery. On June 27, 1979, appellant again appeared before President Judge Brominski, again represented by John J. Thomas, Esquire and Jonathan Blum, Esquire, Assistant Public Defenders and he was sentenced to penitentiary terms of a minimum of ten years and a maximum of twenty years on each charge, to run concurrently. On June 29, 1979, Attorneys Thomas and Blum filed a notice of appeal to the Supreme Court of Pennsylvania, which appeal was submitted October 20, 1981 and decided April 23, 1982.

Thereafter, on May 14, 1982, E. Richard Moyer filed an affidavit requesting that Attorneys Blum and Thomas withdraw as counsel. Attorney John A. Bednarz, Jr., Esquire, entered an appearance on behalf of appellant Moyer and on June 2, 1982, by court order, the withdrawal of counsel by John J. Thomas, Esquire and Jonathan Blum, Esquire, was permitted of record.

Thereafter, the present petition under and pursuant to the Post Conviction Hearing Act was filed naming Mr. Bednarz as counsel, which petition alleged, inter alia, that trial counsel were ineffective. Specifically, the petition alleged:

1. The confession given and my plea of guilty were unlawfully induced by the following wrongful acts of my counsel: (i) Counsel, Jonathan Blum, refused to discuss possible defenses with me, refused to contact both eyewitnesses and character witnesses, wrongfully advised me to give a confession when I wasn’t sure as to what happened, refused to file and pursue any pretrial motions, especially, but not limited to a Motion to Suppress my confession, refused to bring inaccuracies in my confession transcription to the court’s attention, refused to and was unprepared to try my case, (ii) My counsel unlawfully coerced my confession and thereafter my guilty plea because he was unprepared and unwilling to try my case and was not acting in a manner calculated to advance my interests and only to rid himself of responsibility of my case.
2. My co-defendant, ROBERT MARTINEZ, has declared in a statement, which is annexed hereto, that he alone murdered the victim, that I had no prior knowledge that the crime was to be committed, that I had no agreement with Martinez to commit the crime at any time, that I had absolutely nothing to do with the commission of the crime and received none of the proceeds of the crime, nor did I aid Martinez to escape capture and/or prosecution.
3. There was no factual basis for my plea of guilty in that the testimony indicated a claim of strangulation of the victim by me, however, the medical testimony of County Coroner George Hudock, did not show any evidence of strangulation, bruises, contusions or injury to the neck area.

On July 7, 1982, President Judge Brominski dismissed the present petition without a hearing for the stated reason that the petitioner had improperly responded to question number seven set forth hereinabove. Mr. Bednarz then filed the instant appeal and he argues in his brief:

While it is agreed that the right to an evidentiary hearing is not absolute, unless the Court is certain of the total lack of merit of an issue raised in a Petition for Post-Conviction hearing, a hearing should be held on the issue. Commonwealth vs. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979).
Futhermore, [sic] if a Petitioner seeking Post-Conviction relief alleges facts “which if proven whould [sic] entitle the Petitioner to relief,” an evidentiary hearing is required. 19 P.S. Section 1180-9; Commonwealth vs. Sherard, 483 Pa. 183, 394 A.2d 971 (1978).
Since it is alleged that trial counsel was ineffective and Petitioner is represented for the first time by counsel other than his trial counsel, the issue of trial counsel’s ineffectiveness may be raised at this time. Commonwealth vs. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

Brief for Appellant at 10.

We agree. An evidentiary hearing is required on petitioner’s assertion of ineffectiveness, which assertions are raised for the first time by counsel other than trial counsel.

On the state of the record, we cannot determine what occurred between defense counsel and appellant prior to the entry of the plea of guilty. Clearly a hearing on the issues raised in appellant’s petition is required and a determination by the court of matters such as credibility and whether or not trial counsel were indeed ineffective. Accordingly, the order of the Court of Common Pleas of Luzerne County is vacated and the record remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . 42 Pa.C.S.A., §§ 9541-9551, Act of May 13, 1982, P.L. 417, No. 122, § 2.

      . Appellant raises the following issues on appeal:
      I. Whether Petitioner, who alleged inter alia, ineffective trial counsel, is entitled to an evidentiary hearing prior to a dismissal of his Post-Conviction Hearing Act Petition.
      II. Whether Petitioner waived his right to challenge the Voluntariness of his guilty plea, the effectiveness of his counsel and to present after-discovered evidence.
      III. Whether Petitioner is entitled to an evidentiary hearing on the merits of his allegations that there is after-discovered, evidence which was unavailable at trial, which is exculpatory and which would have affected the outcome of the trial if introduced.
      IV. Whether there was a factual basis for Petitioner’s guilty plea.
      Brief for Appellant at 3.

      . We do not consider it of sufficient significance to warrant a contrary result that petitioner’s second petition did not make reference to his direct appeal nor to a prior proceeding under the Post Conviction Hearing Act although clearly the answer to questions seven a and seven b were inaccurate. We note also in answer to paragraph nine appellant flatly states that “No direct appeal taken.” It is conceivable that appellant was unaware of the existence of the direct appeal. This matter, to the extent deemed relevant, may be pursued at the hearing which will be held in the court below.


author: WIEAND, Judge:

text:
    478 A.2d 472
    DUQUESNE LIGHT COMPANY, v. Ronald A. RIPPEL, Appellant. DUQUESNE LIGHT COMPANY, v. Thomas HARTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1983.
    Filed June 22, 1984.
    Petition for Allowance of Appeal Denied Nov. 12, 1984.

      Lee R. Golden, Pittsburgh, for appellants.
    David R. Cashman, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

On December 23, 1978, a vehicle driven by Thomas Harter negligently collided with and sheared off a utility pole owned by Duquesne Light Co. On February 4, 1979, Ronald A. Rippel’s truck also struck and demolished a pole which was owned and used by Duquesne Light Co. to support a street light, a transformer and transmission lines. On both occasions, the utility company was compelled to dispatch repair crews to the sites of the accidents to replace the poles and make repairs to its system for distributing electric power. Harter and Rippel were sued in separate actions. They admitted liability but contested Duquesne Light Co.’s computation of repair costs. Non-jury trials resulted in findings against Harter for $937.09 and against Rippel for $3,980.85. Appeals to this Court requested review of the trial court’s assessments of damages. Having done so, we affirm.

Appellee itemized damages in the Harter case as follows:

Labor $649.69
Drayage 502.10
Materials 50.58
Pension 51.97
Petty cash (i.e., meals) 22.75
TOTAL $937.09

In the Rippel case, damages were itemized as follows:

Labor $2,616.49
Material 503.83
Drayage 563.46
Pension 209.32
Petty cash 90.75
TOTAL $3,980.85

Damages must be proved by a fair preponderance of the evidence. Wright v. Buckeye Coal Co., 290 Pa.Super. 231, 238, 434 A.2d 728, 731-732 (1981). “Where there is a basis in the evidence for a reasonable computation of the damages suffered considering the nature of the transaction, a verdict may be based thereon, though there may be involved some uncertainty about it.” Golomb v. Korus, 261 Pa.Super. 344, 348-349, 396 A.2d 430, 432 (1978), quoting Myer Feinstein Co. v. DeVincent, 151 Pa.Super. 254, 258, 30 A.2d 221, 223 (1943). Where injury to property is reparable, the measure of damages is the cost of repairs necessary to restore the property to its former condition. Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 483, 424 A.2d 902, 911 (1981). This is the measure of damages generally followed in cases where injury has been caused to property of a utility. See: Pennsylvania Power and Light Co. v. Decker, 31 Leh.L.J. 502, aff'd, 208 Pa.Super. 770, 223 A.2d 126 (1966).

In determining the actual cost of repairing a utility pole, overhead expenses may properly be included. See: 25 C.J.S. Damages § 91(1) (1966); Pennsylvania Electric Co. v. Taube, 10 Pa.D. & C.3d 744 (1978). An electric utility company is required to provide a continuous supply of electricity to its customers. Therefore, damaged poles must be promptly replaced and transmission lines repaired. If the utility were to employ an independent contractor to replace damaged poles, the contractor would most certainly consider and include overhead costs in determining the amount to be charged for his work. In that event, a person called upon to reimburse the utility for damages caused by his or her negligence would not be heard to complain that the utility’s damages included an amount to reimburse the contractor for overhead. Overhead expenses incurred by a utility company which makes its own repairs are as much the natural and proximate result of a wrongful act as if such costs had been passed along to the utility by an independent contractor. See: Younger v. Appalachian Power Co., 214 Va. 662, 664, 202 S.E.2d 866, 868 (1974); Ohio Power Co. v. Johnston, 18 Ohio Misc. 55, 247 N.E.2d 338 (1968).

The utility’s charge for drayage, it was testified, represented the costs of operating and maintaining those vehicles of the utility which had been used in effecting the repairs made necessary by appellant’s wrongful conduct. Drayage was computed by allocating to each function, according to the time involved and the number and type of vehicles used, a portion of the utility’s operating and maintenance costs for all vehicles used in the utility’s business, including labor, depreciation, gasoline, tires, repairs, parts, insurance and overhead related to vehicle maintenance. Drayage charges were reviewed and redetermined monthly by the utility. The allocation of total operating and maintenance costs to individual functions, it was testified, was done according to established accounting principles accepted by the Public Utilities Commission.

This practice is no more inexact than an estimate of vehicular expense based upon a job-specific analysis. We agree with and adopt the holding of a Connecticut court in Hartford Electric Light Co. v. Beard, 3 Conn.Cir.Ct. 323, 213 A.2d 536 (1965) as follows:

[I]f the plaintiff is able to prove with reasonable certainty indirect overhead costs of repairs and that these indirect costs have been correctly ascertained in accordance with sound accounting principles, then these indirect costs are a proper element of damages, and the plaintiff may recover them.

Id. at 324, 213 A.2d at 537. See also: Public Service Electric & Gas Co. v. Stone, 184 N.J.Super. 504, 446 A.2d 578 (1982).

The judgments are affirmed.

      . Damages for delay were added. They have not been contested in this appeal.

      . This computation included $12.17 which represented the cost of services provided by a “troubleman" who for one hour was removed from his regular duties of answering customer complaints to respond to the emergency caused by the damage to appellee’s distribution system. There is no merit in the contention of appellant-Rippel that this charge was improper because the expense would have been incurred even in the absence of damage to the pole.