author: MONTEMURO, Judge:

text:
    435 A.2d 610
    John G. BICKELL, Appellant, v. Harold STEIN, Frank Ciccarone, indv. and t/a Town and Country Realtors, Elmer Resnick, and Woodbine Park Apartments, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1981.
    Filed Sept. 25, 1981.

      Robert M. Reibstein, Narberth, for appellant.
    Barry M. Miller, Norristown, for Stein, appellee.
    Douglas Breidenbach, Norristown, for Ciccarone, appellee. Howard B. Zavodnick, Philadelphia, for Resnick, etc., appellees.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order sustaining appellee, Frank Ciccarone’s preliminary objections and demurrer to the second amended complaint of appellant, John Bickell. The court below dismissed the complaint because the statutory limitation had run as to both causes of action against him. We affirm the Order for the reasons stated below.

On June 21, 1974, appellant bought an apartment building from Woodbine Park Apartments, Inc. (hereinafter, “Seller”). Negotiations leading to the agreement of sale were handled through the agency of appellee, who acted as Seller’s real estate broker, and Harold Stein, whom appellant had retained under an exclusive agency contract to find properties for investment. Stein was entitled under his contract to a finder’s fee of 6%. However, he was not a licensed broker and therefore not legally qualified to share in a regular real estate commission.

On November 19, 1979, appellant commenced the present action against appellee, Stein, Seller, and Seller’s president and majority shareholder, Elmer Resnick. The first cause of action alleges that appellee and Seller caused Stein to make fraudulent representations to appellant about the property’s structural soundness and profitability, in return for a share of the commission appellee would receive from Seller if appellant purchased the property. The second cause of action alleges that appellee and Seller intentionally interfered with the contractual relations of exclusive agency between Stein and appellant. Finally, the complaint alleges that appellant did not discover the fee-splitting agreement between appellee and Stein until April 15, 1978.

Appellee raised the statute of limitations as a preliminary objection in the nature of a demurrer, asserting that the alleged fraud and interference occurred prior to the date of sale, and that the present action was not commenced within the two-year period provided by the applicable statute, 42 Pa.C.S.A. § 5524(3) and (4).

After a hearing the court below sustained appellee’s demurrer, because . ..

the only fact in the record of this case to support plaintiff’s claim that the Statute of Limitations should be tolled is his bare allegation in the complaint that “He did not discover the existence of the aforementioned fee-splitting agreement until on or about April 15, 1978. The burden of proving that the Statute should be tolled is not supported by facts in the record. (Opinion below at pg. 3; emphasis supplied.)

Appellant contends first that the lower court erred in determining that the statutory limitations on his causes of action against appellee had expired.

Initially we note the applicable standard of review, as expressed in Donnelley v. DeBourke, 280 Pa.Super. 486, 489-490, 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.

Next, we note that as a general rule the start of the statutory limitation on an action in tort may be delayed by plaintiff’s ignorance of his injury and its cause, until such time as he could or should have discovered it by the exercise of reasonable diligence. Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895); Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428, 431-435 (1981) (and cases cited therein); Gee v. CBS, Inc., 471 F.Supp. 600, 617 (E.D.Pa., 1979).

The plaintiff has the burden of justifying any delay beyond the date on which the limitation would have expired if computed from the date on which the acts giving rise to the cause of action allegedly occurred. He must allege and prove facts which show that he made reasonable efforts to protect his interests and which explain why he was unable to discover the operative facts for his cause of action sooner than he did. Patton v. Commonwealth Trust Co., 276 Pa. 95, 99, 119 A. 834 (1923). Where the facts are neither disputed nor close, the decision on reasonableness is made by the court as a matter of law, instead of by the jury as a matter of fact. A. J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 385, 420 A.2d 594 (1980).

As to the action for fraud, appellant alleges that he was told the apartment building was structurally sound and would yield a certain profit, but that in fact the roof and structure were seriously defective, nor was the rental income enough to realize a profit. These are facts which appellant was in a position to discover as soon as he came into possession of the property and the account books. Yet the complaint does not state when or how appellant became aware of the building’s alleged defects. No facts are alleged which show that appellant exercised due diligence in protecting his interests. There are no allegations which show that the operative facts were impossible to discover despite the exercise of due diligence. Appellant’s awareness of the building’s condition and profitability did not depend in any way on discovery of the fee-splitting agreement. Therefore, the complaint’s first count was clearly insufficient on its face to justify tolling the statutory limitation, and it was not necessary to submit the question of appellant’s diligence to a jury.

The same conclusion applies to the second count for contractual interference. Upon discovery of the alleged misrepresentations, due diligence would have dictated inquiries that could have led to discovery of the fee-splitting agreement. Yet appellant does not allege that he made any inquiries whatever.

Appellant next contends that the lower court erred when it refused to extend the statutory limitation in order to relieve “fraud or its equivalent.” 42 Pa.C.S.A. § 5504(b). However, appellant does not allege sufficient facts to show the existence of “fraudulent concealment” or otherwise justify the extension, which may not be granted as a “matter of indulgence.”

Next, appellant contends that the lower court committed error by spontaneously raising the issue of res judicata. The lower court took notice of an opinion in the Delaware County Court of Common Pleas, which Seller attached to its Answer in the present action. Said opinion denied appellant’s petition to open judgment after judgment was confessed against him for defaulting on the mortgage which Seller had taken back pursuant to the agreement of sale. However, the lower court did not decide that appellant’s present action was res judicata. The lower court only looked on the Delaware County opinion as “evidence that plaintiff was or should have been aware of his legal rights long before November of 1979.”

Finally, appellant asserts that the lower court erred in declining to rule on the other preliminary objections which appellee raised. We agree with the lower court that the limitations issue is dispositive.

Accordingly, the lower court’s order of July 30, 1980, is hereby affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . With respect to 'Resnick and Seller the suit has been settled and discontinued. Stein and Ciccarone filed separate preliminary objections. The third count of the complaint alleges that Stein breached his fiduciary duty to act exclusively for Bickell by entering into the fee-splitting agreement with Seller’s agent, by making knowing misrepresentations about the property for the purpose of inducing Bickell to buy it, and by persuading Bickell not to inspect the property.

      . Although appellant has not raised the following issue, we wish to observe that the statutory limitation applicable to actions for trespass (42 Pa.C.S.A. § 5524) is a waivable defense, and that it therefore should not be raised by Preliminary Objection. Pa.R.C.P. 1017(b)(4). Rather, it should be raised under New Matter. Pa.R.C.P. 1030. In the interest of economy we will nevertheless reach the merits where, as here, the limitation issue was briefed and argued below, and appellee’s right to judgment on the pleadings should be clear once the statutory limitation was raised under New Matter. Donnelley v. DeBourke, 280 Pa.Super. 486, 491, 421 A.2d 826, 828 (1980); Cooper v. Downington School District, 238 Pa.Super. 404, 357 A.2d 619, 621 (1976).

      . Appellee cites Smith v. Blachley, 198 Pa. 173, 179, 47 A. 985 (1901) and Turtzo v. Boyer, 370 Pa. 526, 528, 88 A.2d 884 (1952) for the proposition that in actions for fraud, the statutory limitation may only be tolled by proof of “fraudulent concealment” of the original fraud. The doctrine of fraudulent concealment appears somewhat narrower than the discovery rule, because it requires a showing that defendant himself prevented plaintiff from discovering the facts by acts of deception which were independent of the acts giving rise to cause of action. However, the doctrine of fraudulent concealment has been relaxed considerably with regard to the deceptive intent of defendant’s acts and their independence of the underlying, operative facts (see Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1952); Schwab v. Cornell, 306 Pa. 536, 106 A. 449 (1932); Gee v. CBS, Inc., 471 F.Supp. 600, 617-634 (E.D. Pa., 1979); Hedges v. Primavera, 218 F.Supp. 797 (E.D. Pa., 1963)), so that the practical difference between the two rules is much reduced. Furthermore, Smith and Trutzo are reconcilable with the discovery rule, because both are cases in which the court observed that the fraud was obvious or easily discoverable by a prudent individual.


source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    435 A.2d 614
    Joseph G. DeFRANCESCO and Frank Crea T/D/B/A Mt. Washington Ornamental Iron Works Company and Frank G. DeFrancesco and Frank Crea, as Individuals v. WESTERN PENNSYLVANIA WATER COMPANY, a Corporation, Appellant. Joseph F. LOY and Bernice Loy T/D/B/A Joseph F. Loy Tire Service Inc. v. WESTERN PENNSYLVANIA WATER COMPANY, a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1981.
    Filed Oct. 2, 1981.
    Petition for Allowance of Appeal Granted Jan. 11, 1982.

      George I. Buckler, Pittsburgh, for appellant.
    C. Robert Keenan, III, Pittsburgh, for appellees.
    Before CERCONE, P. J., and MONTGOMERY and VAN der VOORT, JJ.
   CERCONE, President Judge:

This case involves an appeal taken by Western Pennsylvania Water Company (hereinafter West Penn) challenging, inter alia, the jurisdiction of the court of common pleas to hear this case. Finding that initial jurisdiction over this controversy is vested in the Pennsylvania Public Utility Commission, we vacate the judgments of the lower court awarding damages to the appellees herein.

On August 11, 1973, a fire erupted in a large pile of tires located in the rear of property owned by Joseph F. Loy Tire Service, Inc. (hereinafter Loy) at 1655 through 1659 Saw Mill Run Boulevard, Pittsburgh, Pennsylvania. The Fire Department of the City of Pittsburgh promptly arrived on the scene while the flames were still confined to one area. However, due to a problem with both the volume and the sporadic nature of the water supply being pumped from the fire hydrants at that location, the firemen were unable to confine the fire which then spread across the Loy property and onto the adjoining property of Joseph G. DeFrancesco and Frank Crea, trading and doing business as Mt. Washington Ornamental Iron Works Company and Joseph G. DeFrancesco and Frank Crea as individuals (hereinafter DeFrancesco). Both businesses were completely consumed by the fire.

On March 13, 1975, Loy filed a complaint in trespass and in assumpsit in the Court of Common Pleas of Allegheny County alleging that West Penn failed to provide adequate and sufficient water service to combat the blaze. On March 26,1975, DeFrancesco filed a similar complaint. Throughout the trial, West Penn objected to the admission of any evidence regarding the adequacy or sufficiency of the water supply, asserting that this matter was not within the jurisdiction of the courts to adjudicate but within the exclusive jurisdiction of Pennsylvania Public Utility Commission. Appellees, Loy and DeFrancesco, contend this case does not involve the adequacy or sufficiency of water service but is one involving the law of negligence in which the traditional tort obligations and principles are applicable. The lower court, however, entertained jurisdiction over this controversy and the jury returned verdicts in favor of appellees Loy and DeFrancesco awarding damages in the amounts of $173,000 and $72,000 respectively, plus interest in the amounts of $1,663.39 and $692.28 respectively. After West Penn’s motions for new trial and for judgment notwithstanding the verdict were denied by the court en banc, this appeal followed.

It is well-settled law that initial jurisdiction over matters involving the reasonableness, adequacy or sufficiency of a public utility’s service, facilities or rates is vested in the PUC and not in the courts. See Elkin v. Bell Tel. Co. of Pennsylvania, 491 Pa. 123, 420 A.2d 371 (1980); Allport Water Auth. v. Winburne Water Co., 258 Pa.Super. 555, 393 A.2d 673 (1978). As early as 1961, the Pennsylvania Supreme Court stated:

Although we still possess the right of judicial scrutiny over the acts of the PUC, no principle has become more firmly established in Pennsylvania law than that the courts will not originally adjudicate matters within the jurisdiction of the PUC. Initial jurisdiction in matters concerning the relationship between public utilities and the public is in the PUC—not in the courts. It has been so held involving rates, service, rules of service, extension and expansion, hazard to public safety due to use of utility facilities, installation of utility facilities, location of utility facilities, obtaining, alerting, dissolving, abandoning, selling or transferring any right, power, privilege, service, franchise or property and right to serve particular territory.

Lansdale Boro. v. Phila. Elec. Co., 403 Pa. 647, 650-651, 170 A.2d 565, 567 (1961) (footnotes omitted).

In Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977), however, the Court held that the PUC does not have jurisdiction over suits for damages based upon the failure to provide adequate and sufficient services and, therefore, such matters can initially go to the courts. Finally, and most recently, the Court has decided Elkin v. Bell Tel. Co., 491 Pa. 123, 420 A.2d 371 (1980) in which the Court approved a bifurcated procedure of referring damage cases involving utility services, facilities or rates to the PUC to make an initial determination of whether the utility has or has not met up to statutorily mandated standards. According to this procedure, a pending action for damages in the court of common pleas is either rendered moot if the PUC finds that the services are reasonable and adequate, or the action proceeds forward based upon the PUC findings of the inadequacy and unreasonableness of the service. See also Feingold v. Bell of Pennsylvania, 477 Pa. 1, 18 19, 383 A.2d 791, 799-801 (1977) (Pomeroy, J., dissenting). Moreover, the Court in Elkin decided that Feingold did not oust the PUC of jurisdiction “for all purposes in any cases involving an action for damages.” 491 Pa. at 130, 420 A.2d at 375 (emphasis in original). The decision stated that such an “interpretation of Feingold is too broad and would ‘virtually strip’ the PUC of all jurisdiction merely by framing the allegations in contractual and/or trespassing terminology, and demanding damages.” Id. The Elkin decision cited extensively from Justice Pomeroy’s “insightful dissenting opinion in Feingold which expressed concern for such a sweeping interpretation.” Id. In fact, it is Justice Pomeroy’s dissent espousing the bifurcated procedure which is now expressly vindicated by Elkin:

. . . And, of course, the PUC is endowed by the Public Utility Code with authority to enforce compliance by public utility companies with the standards of service to which legally the companies must adhere. See Act of May 28, 1937, P.L. 1053, art. IX, § 901, 66 P.S. § 1341 et seq. The PUC, accordingly, is the agency which the legislature has created both to interpret the standards of service of a public utility and to enforce them. The only power which the Commission lacks in the present case is the ability to award damages for past breaches of duty by the Telephone Company, assuming such breaches have occurred and entail damages. This lack, however, is not such as oust the PUC of its primary jurisdiction. Resort to the courts may well be based on PUC findings which will then be in hand. The majority, however, would virtually strip the PUC of all jurisdiction merely because a demand for damages is contained in appellant’s complaint. Such a result is unwarranted.
The proper procedure in a case such as the instant one is, I suggest, to stay the proceeding in the court of common pleas until a determination of the questioned standards of service can be had by the PUC in accordance with Section 412 of the Public Utility Code (66 P.S. § 1182). This course of procedure is necessary because the dispute is uniquely within the expertise of the PUC; it is only the relief sought, i. e., the allowance of damages, which is beyond the legislative grant of powers to the Commission. The proposition is succinctly put in Professor Davis’ authoritative treatment of administrative law:
“(1) On the question whether the doctrine [of primary administrative jurisdiction] applies to problems or relief which are beyond administrative jurisdiction, the theory seems reasonably clear. The test is not whether some parts of the case are within the exclusive jurisdiction of the courts; the test is whether some parts of the case are within the exclusive jurisdiction of the agency. Because of the purpose of the doctrine—to assure that the agency will not be by-passed on what is especially committed to it—and because resort to the courts is still open after the agency has acted, the doctrine applies even if the agency has no jurisdiction to grant the relief sought.” (Emphasis added.)
Davis, Administrative Law Treatise, § 19.07, p. 39 (1958). See also Davis, Administrative Law of the Seventies, § 19.07, pp. 444-45 (1976); Annotation, Doctrine of Primary Administrative Jurisdiction as Defined and Applied by the Supreme Court, 38 L.Ed.2d 796, § 8 (1974); Jaffe, Judicial Control of Administrative Action, pp. 138-39 (1965). Accord: United States v. Michigan National Corp., 419 U.S. 1, 5, 95 S.Ct. 10, 12, 42 L.Ed.2d 1, 5 (1974); Pan American World Airways, Inc. v. United States, 371 U.S. 296, 313, n.19, 83 S.Ct. 476, 486, n.19, 9 L.Ed.2d 325, 337, n.19 (1963); Hewitt-Robins v. Eastern Freight-Ways, Inc., 371 U.S. 84, 83 S.Ct. 157, 9 L.Ed.2d 142 (1963); Elkins (sic) v. Bell Telephone Co., 247 Pa.Super. 505, 372 A.2d 1203 (1977) ....
Once the administrative tribunal has determined the issues within its jurisdiction, then the temporarily suspended civil litigation may continue. The direction and scope of the litigation will of course be guided and determined by the nature of the agency adjudication.

477 Pa. at 18-22, 383 A.2d at 799-801 (Pomeroy, J., dissenting). He further stated in footnote five that:

It may be worth noting, however, that should the claimant seek review of the PUC determination, his right to do so would not be affected by the procedure here advocated. See Section 508(e) of the Appellate Court Jurisdiction Act of 1970, July 31, P.L. 673, No. 223 (17 P.S. § 211.508(e)) which transferred to and vested in the Commonwealth Court all appeals from the PUC which were originally vested in the Superior Court pursuant to §§ 1101-1106 of the Public Utility Code, 66 P.S. §§ 1431-1437. Thus review of the PUC action should proceed through the normally existing route of review (see Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973)). The pending action in the court of common pleas will not, of course, be used to relitigate the question of adequacy of services, but only to litigate such questions as were not resolved through administrative channels and to grant such relief, if any, including damages as may be appropriate in light of the administrative determination.

Id., 477 Pa. at 22 n.5, 383 A.2d at 801-802 n.5. (Pomeroy, J., dissenting).

Thus, our Supreme Court has arrived at an “accommodation of the respective spheres of adjudicatory authority of the PUC and the Courts of Common Pleas where each has jurisdiction over some facet of the controversy.” Elkin, supra, 491 Pa. at 128, 420 A.2d at 374. See also Feingold, supra, 477 Pa. at 22, 383 A.2d at 802 (Pomeroy, J., dissenting) (“a balancing of the roles of the courts and administrative tribunals is necessary to insure fairness to the parties while effectuating the public concern that utility companies be regulated in an efficient and consistent manner”).

We, therefore, conclude that the present state of the law in this volatile area can be accurately summarized in the following manner. When a case involves issues unrelated to utility services, facilities or rates, then obviously the courts of general jurisdiction can exercise their dominion over the matter. On the other hand, if the matter is one which does concern services, facilities or rates, then the PUC has initial jurisdiction over the controversy. The exclusiveness of the PUC’s jurisdiction, however, depends upon the adequacy of the administrative remedies available to the complaining party: Where the administrative remedies are adequate and complete, then the PUC is the exclusive forum to hear the case and there is no recourse to the courts of general jurisdiction. But, when the available administrative remedies are inadequate to make the complainant whole, then the bifurcated procedure of referral adopted by Elkin should be implemented. In accordance with these principles, the particular facts of the instant case must be closely examined to determine the outcome of the jurisdictional question presented.

The allegations in the instant case were couched in trespassory and contractual language, but the basis of the claim was the insufficiency of the water supply and pressure to put out the fire, and the inadequate maintenance of the pipes, valves and other facilities. Both complaints were replete with the following types of allegations:

FOURTH: At all times material hereto, defendant was under a duty to maintain in good and proper working order all things necessary for the supplying of water to the users thereof in the City, including, but not limited to pipes, fire hydrants, valves and sufficient water and water pressure to meet the ordinary needs of the City.
NINTH: During the aforesaid period, plaintiffs have relied upon defendant to provide adequate and sufficient water services.
ELEVENTH: As a result of defendant’s failure to provide proper pipes, fire hydrants, valves and sufficient water and water pressure, the firemen were unable to extinguish the fire or confine it to the site of its origin; and the fire spread to plaintiff’s aforesaid place of business and destroyed their property. (Emphasis added).

The pleadings here, like the pleadings in Allport Water Auth. v. Winburne Water Co., supra, Bell Telephone Company v. Sanner, 248 Pa.Super. 273, 375 A.2d 93 (1977) and Elkin v. Bell Telephone Company, 247 Pa.Super. 505, 372 A.2d 1203 (1977) affirmed, 491 Pa. 123, 420 A.2d 371 (1980), concern the reasonableness or adequacy of the service provided by a utility, in which case jurisdiction is in the PUC. A contrary result was reached in Behrend v. Bell Telephone Company, 242 Pa.Super. 47, 363 A.2d 1152 (1976) vacated and remanded on other grounds 473 Pa. 320, 374 A.2d 536 (1971) because the pleadings did not deal with adequacy or reasonableness of utility service. In Allport, we held that Feingold, supra, is on all fours with Behrend because it involved a utility’s performance of its contractual or tort law obligations, rather than its statutorily imposed duties as a public utility. 258 Pa.Super. at 563, 393 A.2d at 677. See Feingold, supra, 477 Pa. at 11 n.7, 383 A.2d at 796 n.7. We cannot, however, say that this is true in the present case. Rather, this case is more akin to Elkin, Allport, and Sanner because the contention is that the water supply and water pressure were insufficient to enable the firemen to effectively combat the blaze.

[I]n both Elkin and Sanner, we recognized the need for an initial PUC adjudication, for it was only after such an adjudication by the PUC that a court could proceed to determine the issues of liability and damages that are unquestionably within its jurisdiction.

Allport, supra, 258 Pa.Super. at 560-561, 393 A.2d at 676.

Moreover, this case also involves a claim that the water company turned down a water supply valve in the appellees’ block in order to enable its workers to perform necessary repairs on the lines. In this regard, we note that the Public Utility Law, in addition to requiring that utilities provide reasonable and adequate service, facilities and rates, also mandates that utilities provide service which is “reasonably continuous without unreasonable interruptions or delay.” Public Utility Law, Act of May 28, 1937, P.L. 1053, art. IV, § 401, 66 P.S. § 1171 (1959) now Public Utility Code, Act of July 1, 1978, P.L. 598, No. 116, § 1, 66 Pa.C.S. § 1501 (1980). Likewise, the Act imposes upon a public utility the duty to provide safe services and facilities as well. Id. See Midland Borough v. Steubenville, etc., Co., 300 Pa. 134, 150 A. 300 (1930); Reading Co. v. Pa. P.U.C., 188 Pa.Super. 146, 146 A.2d 746 (1958); Postal Telegraph—Cable Co. v. Pa. P.U.C., 154 Pa.Super. 340, 35 A.2d 535 (1944). This duty also comes into play in the present situation. Thus, like the courts in Elkin, Allport and Sanner, we hold that initial jurisdiction over this controversy is vested in the PUC.

On the basis of the foregoing analysis, we conclude that the court of common pleas lacked jurisdiction to hear this controversy initially. However, because the PUC lacks the power to fashion an award of damages which would be necessary in the present case to make the plaintiffs whole, its jurisdiction is not exclusive and the court below will, therefore, be able to conduct another trial in order to adjudicate the plaintiffs’ claims for damages should the PUC decide that either the water service and pressure, the maintenance of the utility facilities, or the continuity of service were unreasonable, insufficient or inadequate under the circumstances. If the PUC determines that the service and maintenance of facilities was reasonable, sufficient, adequate, and reasonably continuous, however, then such a determination is binding upon the court of common pleas which is thereby precluded from acting further in the matter. Id. Thus, on remand the lower court proceedings shall be stayed pending an initial determination by the PUC.

The judgments of the court below are vacated and the case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Because of our disposition of the jurisdiction question, we need not address West Penn’s allegations of error which are listed as follows:
      (1) Whether the lower court erred in failing to strike as hearsay testimony concerning alleged statements as to the cause of the diminished water supply made to Fire Chief Dudak and Joseph Loy by an unidentified individual who said he was an employee of West Penn;
      (2) Whether the lower court erred in holding Rule 17 of West Penn’s tariff void as an exculpatory provision against public policy;
      (3) Whether the lower court erred in refusing to charge on Section 328(d) of the Restatement (Second) of Torts (1965) concerning the requirements of invoking the res ipsa loquitur doctrine; and
      (4) Whether the lower court erred in refusing to instruct the jury as to the apportionment of damages between two different causes.

      . It should be noted that Feingold really dealt with the narrower question of the completeness and adequacy of administrative remedies. Merely alleging claims for damages under Feingold, would, therefore, not operate to vest the courts with jurisdiction when the available administrative remedies were adequate and complete to make the complainant whole.

      . The limited determination is challengeable through the normal channels of appeal to the Commonwealth Court.

      . The specific holding of Elkin was that a PUC determination that services being rendered are adequate and reasonable is binding in a suit for damages in a court of common pleas, and relitigation of that issue, is therefore, precluded.

      . In Allport Water Auth. v. Winburne Water Co., 258 Pa.Super. 555, 563, 393 A.2d 673, 677 (1978) our Superior Court held that the scope of Feingold is “distinctly delimited” because that case merely involved a utility’s contractual and tort law obligations rather than its statutorily imposed duty to provide reasonable and adequate service to the public.

      . In Elkin, Justice Roberts wrote a concurring opinion in which he stated:
      Thus, in any case involving the furnishing and maintenance of “adequate, efficient, safe and reasonable service and facilities,” deferral to the PUC is not only appropriate but legislatively required. Where, as here, the PUC determines that the service rendered by the utility is adequate and reasonable, that determination, reviewable through the administrative process, is binding and conclusive. Where it is determined by the PUC that a utility’s service falls short of the statutory standard, only in that instance may a court utilize that determination in a proceeding for damages.

        Elkin, supra, 491 Pa. at 137, 420 A.2d at 378 (Roberts, J., concurring).

      . More specifically, the Act states that:
      [e]very public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities, and shall make all such repairs, changes, alterations, substitutions, extensions, and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and the public. Such service also shall be reasonably continuous and without unreasonable interruptions or delay.
      66 P.S. § 1171 (emphasis added).


author: WICKERSHAM, Judge:

text:
    435 A.2d 620
    COMMONWEALTH of Pennsylvania v. William LEE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 2, 1981.
    Filed Oct. 2, 1981.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   WICKERSHAM, Judge:

On August 31, 1979, at approximately 11:40 p.m. on the 1500 block of North Woodstock Street in Philadelphia, defendant stabbed Gerald Freeman in the chest and stomach during an argument over five dollars that the victim owed defendant. Freeman’s friends then went to his aid while defendant walked up the street to talk with his girlfriend, Queenie Lighty. Approximately twenty minutes later, at 12:20 a.m., September 1, 1979, defendant stabbed Queenie Lighty in the chest.

Defendant was arrested and charged in two sets of Informations, Nos. 792-794 and Nos. 885-887, as of September Sessions, 1979. Bill Nos. 792 -794 involved the incident with Mr. Freeman and Nos. 885-887 pertained to the assault on Queenie Lighty; both sets of Informations charged defendant with recklessly endangering another person, possession of an instrument of crime and simple and aggravated assault. Defendant was tried on the charges arising out of the assault on Mr. Freeman before the Honorable Alexander Bonavitacola, sitting without a jury, between December 12 and 13,1979, and convicted of possession of an instrument of crime (No. 793) and aggravated assault (No. 794).

On January 8, 1980, the Commonwealth was prepared to commence defendant’s trial before the Honorable Lisa A. Richette on Information Nos. 885 to 887 involving the stabbing of Queenie Lighty. Defendant, however, moved to dismiss these bills on the grounds that this prosecution is barred by double jeopardy because these charges originated from the same criminal episode for which he was previously tried and convicted. That same day, after a hearing, Judge Richette denied defendant’s motion. This appeal followed.

In Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), Justice Roberts said on this subject:

In short, the constitutional prohibition against double jeopardy represents two fundamental and distinct protections: that no person should be harassed by successive prosecutions for a single wrongful act and that no person should be punished more than once for the same offense.
A particularly thorny problem in double jeopardy law is deciding when a second prosecution involves the ‘same offense’ as a prior prosecution. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the defendant had been acquitted of robbing one of six men who were engaged in a poker game. The Court held that the double jeopardy clause mandated application of the rule of collateral estoppel. The Court applied collateral estoppel in Ashe to hold that the second prosecution violated the fourteenth amendment. Three Justices would have gone further and held the double jeopardy clause requires that a prosecutor, except in limited circumstances, join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode or transaction. 397 U.S. at 453-54, 90 S.Ct. at 1199 (Brennan, J., concurring, joined by Douglas, J. and Marshall, J.).

Id., 472 Pa. at 618, 622-23, 373 A.2d at 97-98,99-100 (citations omitted).

The thrust of appellant’s argument is that the prosecution on bills 885-887 should be dismissed for the reason that those charges arose out of the “same criminal episode” as the charges on which appellant had already been convicted. Lee relies on Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) and Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493 (1975). Lee argues that the second assault occurred a few minutes later than and a short distance away from the first assault and, therefore, this constitutes a single criminal episode even though the second victim was not directly involved in the initial argument between the appellant and the first victim. Lee argues that since he had a plan to assault a number of people that night, each assault was part of the same criminal episode.

The Commonwealth is required to consolidate all known charges against a defendant into a single prosecution only when the offenses are based on the same conduct or arose from the same criminal episode. See 18 Pa.C.S. § 110(1)(ii); see also Commonwealth v. Miller, 278 Pa.Super. 103, 419 A.2d 1378 (1980). This concept of criminal episode was defined in Green as “an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.” Commonwealth v. Green, supra, 232 Pa.Super. at 139, 335 A.2d at 495 (citation omitted).

Clearly, the events that occurred here are most properly viewed as two separate episodes. There was as much as forty minutes between the two stabbings. Gerald Freeman stated to the police that he was stabbed by defendant at 11:40 p. m., Brief for Appellant, Exhibit “A”. Queenie Lighty stated to the police that she was stabbed at 12:20 a. m., Brief for Appellant at Exhibit “A”. Defendant’s claim that the second stabbing occurred just a few minutes after the first, Brief for Appellant at 18, is erroneous. Moreover, and most importantly, this was not a continuous incident. These were clearly separate quarrels. After stabbing Freeman defendant walked up the street and sat with his girlfriend, Queenie Lighty, who had just come out on the steps in front of her house. There was a clear break in the criminal activity of defendant. He spoke with Lighty for approximately twenty minutes before stabbing her in the chest. Thus, defendant’s reliance upon Commonwealth v. Green, supra, is misplaced. In Green, the various assaults there were considered a single criminal episode only because they were committed during what was recognizedly a single brawl.

Defendant characterizes these two separate and unrelated stabbings as part of a larger scheme of events, i. e. “it was ‘Grudge Night’ on N. Woodstock street,” Brief for appellant at 7, in an attempt to establish that they were part of a comprehensive series, and thus, one episode. Defendant relies solely on the statement allegedly made by defendant before stabbing Queenie Lighty that he “had two more people to stab” to support this claim. However, two different criminal acts do not become one episode simply because they occur on the same night. Nothing connects the two victims. Different motives were involved; Freeman was stabbed over a debt, Lighty because of á lovers’ quarrel. Nor was there any logical connection between both victims and defendant.

The other contention raised by defendant relates solely to the charge of possession of an instrument of crime. Defendant claims that the present charge requires proof of the same facts for which he was previously convicted of the same charge at Freeman’s trial because his possession of the knife was continuous and uninterrupted. It is clear from the record, however, that two knives were possessed by defendant. Brief for Appellant, Exhibit “A”. Consequently, since this charge involves neither the same conduct nor the same criminal episode, defendant’s claim is meritless.

In conclusion, the motion court’s finding that the present charges did not arise from the same criminal episode as the Freeman stabbing is adequately supported by the record and, thus, defendant is not entitled to the extreme relief of discharge.

The order denying defendant’s application to dismiss is affirmed.

      . Appellant, William Lee, presents the statement of questions as follows:
      1. Should not appellant’s case have been dismissed because appellant had been tried and convicted previously in the Court of Common Pleas on charges arising from the same criminal episode?
      2. Does appellant’s prior conviction for possession of instrument of crime bar reprosecution on the same charge when the possession was continuous and uninterrupted?


author: DiSALLE, Judge:

text:
    435 A.2d 622
    COMMONWEALTH of Pennsylvania v. Elanor RICHIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1980.
    Filed Oct. 2, 1981.

      John H. Corbett, Jr., Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before PRICE, DiSALLE and MONTEMURO, JJ.
   DiSALLE, Judge:

Appellant, Elanor Richie, contends that the evidence presented at her non-jury trial is insufficient to establish her guilt beyond a reasonable doubt and is therefore insufficient to sustain her convictions of theft and criminal conspiracy.

Viewing the evidence in the light most favorable to the Commonwealth, and giving the Commonwealth the benefit of all reasonable inferences therefrom, Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970), the facts are as follows:

Appellant and her boyfriend, co-defendant, David Turk, were employed as cashiers at a self-service gas station/mini-mart (hereinafter station) in North Versailles, Pennsylvania. The station operated in three eight hour shifts, with only one employee, or the manager, as the cashier on each shift. The station also operated on a cash only basis, the cashier being solely responsible for that shift’s cash. At the beginning of each shift, the cashier made an abbreviated inventory, calculating approximately how much cash the previous shift should have collected and counting the amount the shift did collect. At the beginning of each shift, the cashier was provided with $100; when an additional $50 to $100 had been collected, it was placed in a “drop” envelope; the “drop” envelope was marked with the name of the cashier, the date, and the amount of money in the envelope; it was then dropped into a safe. Only the manager and the station’s corporate office had keys to the safe.

Beginning with the third shift (from 11 P.M. to 7 A.M.) on Friday, January 12, 1979, until the first shift (7 A.M. to 3 P.M.) Sunday, January 14, 1979, the shifts were worked successively by David Turk, the manager, appellant, Commonwealth witness Lisa Stark, and the manager. During Turk’s shift the manager had seen appellant behind the counter with Turk, which was a violation of station rules. And when Lisa Stark commenced her shift, Turk was behind the counter with appellant. Further, Lisa Stark’s inventory showed that appellant’s shift was short of cash. Ms. Stark reported this to the manager immediately. When the manager commenced the next shift she inventoried appellant’s and Turk’s shifts and found them to be short $233 and $140, respectively. The manager also discovered that the money in appellant’s and Turk’s “drop” envelopes were $699 and $80 short, respectively, of the total amounts marked thereon. The manager informed the police of the theft that day. Earlier that morning, without any termination notice, appellant and Turk had left for North Carolina, where they were subsequently arrested. At trial, appellant merely denied having stolen the money.

Appellant contends that the evidence is insufficient to convict her because the manager had equal access to the shift and “drop” money and could have committed the thefts. We perceive this argument as a matter of credibility: the manager’s testimony, which was confirmed in part by Lisa Stark, versus appellant’s denial. Under these circumstances, we decline to usurp the lower court’s determination of credibility. Commonwealth v. Darush, 256 Pa.Super. 344, 389 A.2d 1156 (1978).

Appellant also contends that because the corporation keeps a set of keys to the safe, someone other than the manager or the appellant or David Turk could have stolen the money in the “drop” envelopes. “The law [, however,] imposes upon the Commonwealth [only] the burden of proving the defendant guilty beyond a reasonable doubt, not beyond all doubt.” Commonwealth v. Nole, 448 Pa. 62, 65, 292 A.2d 331, 332 (1972). “[T]he burden of proof upon the Commonwealth has never been construed to require it to eliminate every conceivable hypothesis of innocence . . . Nole . .. [, supra]; Commonwealth v. Libonati, 346 Pa. 504, 31 A.2d 95 (1943).” Commonwealth v. Williams, 476 Pa. 557, 564, 383 A.2d 503, 507 (1978). “[And, t]he reasonable doubt which will prevent conviction must be the fact finder’s doubt[,] . . . not that of an appellate court. United States v. Stirone, 311 F.2d 277 (3d Cir. 1962), cert. denied, 372 U.S. 935, 83 S.Ct. 881, 9 L.Ed.2d 766 (1963).” Commonwealth v. Williams, 447 Pa. 206, 208, 290 A.2d 111, 112 (1972). We cannot view appellant’s contention in a vacuum; viewing all of the evidence, it was established that appellant and David Turk were together, behind the station’s cashier’s counter during each other’s respective shifts (the shifts immediately prior to the discovered thefts), that Turk’s and appellant’s “drop” envelopes and shift totals were short of the cash they should have contained or collected, (the manager’s testimony regarding these shortages was corroborated in part by Lisa Stark’s testimony), and that when the thefts were discovered, Turk and appellant had left unannounced for North Carolina. We believe this evidence was sufficient for the trial court to find, beyond a reasonable doubt, that appellant is guilty of conspiracy and theft. Cf. contra, In re Wood, 277 Pa.Super. 606, 419 A.2d 1316 (1980); Commonwealth v. Roach, 260 Pa.Super. 261, 393 A.2d 1253 (1978); Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977).

Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . 18 Pa.C.S.A. § 3921(a).

      . 18 Pa.C.S.A. § 903(a)(1) (Supp. 1981-82).

      . The testimony at trial describing the inventory procedure was disjointed and convoluted. Although this may not be the procedure that was required to be employed, we believe it was the procedure that was employed.


author: POPOVICH, Judge:

text:
    435 A.2d 624
    Margaret SMITH, Appellant, v. Burton CHARDAK and Sherre Chardak.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1981.
    Filed Oct. 2, 1981.

      Michael G. Trachtman, Norristown, for appellant.
    Gilbert P. High, Jr., Norristown, for appellees.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   POPOVICH, Judge:

This action of trespass arises out of injuries suffered by Margaret Smith, appellant, when struck by the vehicle driven by Sherre Chardak, appellee. The jury returned a verdict for the appellee. Appellant’s motion for a new trial was denied and she filed this appeal arguing solely that the court’s charge to the jury was in error. We agree and order a new trial.

Where the accuracy of a charge is in issue, an appellate court must look to the charge in its entirety against the background of evidence in order to determine whether or not error was committed and whether that error was prejudicial to the complaining party. Slavish v. Ratajczak, 277 Pa.Super. 272, 419 A.2d 767 (1980).

The evidence indicates that around 8:00 p. m. on the 3rd of September, 1974, appellant had just left her place of employment in the Cedarbrook Mall, located in Philadelphia, Pennsylvania. The appellant was walking south toward the intersection of Cheltenham and Mt. Airy Avenues. The intersection is controlled by traffic lights, and there are two lanes of travel and left-hand turn lanes on Cheltenham leading into the Mall, which are divided by a medial strip. Appellant had traversed part of the roadway to the medial strip and was intent on crossing Cheltenham to reach a bus stop. At this same time, appellee was driving her MG east on Cheltenham, in the company of two friends—James Dominic was seated in the front and William Sturchio was in the back. Because it was raining heavily, the appellee had her headlights and windshield wipers on and was moving between 15 and 25 miles per hour. Around 100 feet from the intersection, appellee observed that the light governing her lane was green.

At trial, the witnesses gave varied accounts of when they noticed the appellant. The appellee’s version placed the victim approximately five feet in front of her vehicle, at a point about two feet right of the medial strip, before she came into her line of vision. On cross-examination, however, appellee revised her estimation to “three car lengths, or forty-five feet.” (RR 192a) The appellee also noted that the appellant was carrying an open umbrella, which was aimed in the direction of on-coming traffic.

Next, James Dominic, who was called by the appellant, remarked that he initially observed the victim “approximately one hundred feet from the intersection,” and she was “standing on the medial strip.” (RR 55a 56a) The second time was “[a]bout thirty feet ... to fifty feet” from the intersection, id., and she was “[stepping off the curb.” (RR 57a) Given such statements, counsel for appellant produced a transcript of a deposition taken on August 12, 1976, in which the witness stated that he first saw the victim 35 feet, and not 100 feet, prior to impact; and that “she was walking” instead of standing on the medial strip. (RR 66a) The witness conceded the inconsistency and admitted that his recollection was better two years after the accident than at trial. (RR 69a) The witness went on to corroborate the appellee’s accounting of the appellant holding an umbrella “to her side, facing . . . traffic[,]” (RR 58a), although he did not remember the color of the traffic signal.

Lastly, when William Sturchio took the stand, he related that upon approaching the intersection, the light was green and that his recollection of the appellant was that she was standing to the left, and he saw her with the medial strip behind her. “Whether she was on the medial strip or not, or in the road already, it [was] difficult to exactly say, but [he]—looking at her, related her to the medial strip. In other words, the medial strip [was] behind her.” (RR 136a) Upon questioning by the trial judge, Sturchio did give the figure of forty-two feet, (RR 139a), as the distance at which he first sighted the victim. Additionally, the witness stated that the victim was in possession of an umbrella.

As a direct result of the accident, the appellant could recall no more than walking up the pedestrian walkway running along side Cheltenham Avenue, and then “waking up in the emergency room of the Chestnut Hill Hospital.” (RR 78a) However, she did deny using or even owning an umbrella.

Appellant’s theory of recovery was premised upon appellee’s negligence, or, alternatively, if there was evidence of contributory negligence, relief was warranted under the “Discovered Peril Doctrine.” In accordance with appellant’s position, the trial court read the following [joints, submitted by the appellant, to the jury:

Point Number Twenty-nine is affirmed and reads as follows:
Even if you find that the plaintiff was contributorily negligent, this contributory negligence will not bar the plaintiff’s right to recover unless the contributory negligence is shown to be a proximate cause of the plaintiff’s injuries.
That is true.
Point Number Thirty-one is affirmed and reads as follows:
Pennsylvania has a rule which is called the Discovered Peril Doctrine.
Members of the Jury, I’m affirming this point for Charge, though I must say I think it’s only tangentially involved in this case, but I’ll read it nevertheless. This rule may be applicable in determining whether the plaintiff’s contributory negligence, if any, was a proximate cause of her injuries. If it is not, contributory negligence will not bar a recovery by plaintiff. The rule may be expressed generally as follows:
Where defendant should be aware of the existence of a potential danger to the plaintiff, caused by the plaintiff’s negligence, at such a time that defendant could avoid harming the plaintiff by acting carefully, and thereafter instead of avoiding injury to the plaintiff, the defendant negligently brings about the accident, the plaintiff is relieved of all liability for contributory negligence. This is because the plaintiff’s contributory negligence would not be a proximate cause of the plaintiff’s injuries.
The defendant’s negligence, after the defendant should have been able to avoid injuring the plaintiff, is the sole cause of the plaintiff’s injuries.
$ * ‡ #
Point Thirty-three is affirmed and reads as follows:
A plaintiff may recover damages for an injury caused by the defendant’s negligence, not withstanding the plaintiff’s own negligence in exposing himself to the risk of injury, if the injury was more immediately caused by the defendant’s ommission [sic], after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to the plaintiff.
Well, that’s the same principle of law recited in another fashion.
Point Number Thirty-four is affirmed and reads as follows:
A plaintiff may recover not withstanding [sic] his own negligence, if the defendant failed to exercise due care to avoid inflicting the injury after the defendant knew or should have known that the plaintiff was in a position of peril.” (RR 253a-256a)

After the instructions were completed, the jury retired for deliberations at 2:15 p. m. The trial judge, at 4:20 p. m., received a communique from the jurors and they were reconvened in open court. The jury requested, and was reread, the points for charge, a portion of which appears supra, concerning the question of liability. (RR 275a-277a) Thereafter, at 4:37 p. m., the jury recommenced deliberations. However, at 8:20 p. m., the court received a second note which read: “If both parties are negligent, must we decide in favor of the [appellee]? Thank you. [Forewoman].” The trial judge called the parties and the jurors into court and responded: “The answer is yes. If you find both parties negligent, your verdict must be for the [appellee].” (Emphasis added) (RR 281a) The jury was escorted out of the courtroom, and within nine (9) minutes returned with a verdict in favor of the appellee.

From the court’s answer the jury doubtless understood that if the appellant was held to be guilty of contributory negligence, despite a finding that appellee was equally guilty of negligence, she was barred from recovery. Under the doctrine of discovered peril, which was invoked by the appellant, such was not a correct statement of the law. Moreover, such reply was at odds with the trial court’s earlier charge to the jury, where it was properly stated that under the doctrine a pedestrian may still recover notwithstanding his own negligence, where a motorist failed to stop his vehicle and exercise due care to avoid inflicting injury after he knew or should have known that the pedestrian was in a position of peril. (RR 256a); see Zernell v. Miley, 417 Pa. 17, 208 A.2d 264 (1965); Lindner v. Friedel, 414 Pa. 436, 200 A.2d 771 (1964); Lehman v. McCleary, 229 Pa.Super. 508, 329 A.2d 862 (1974).

The trial court, in its Opinion filed with this Court, takes the position that, “[ajssuming arguendo that the response to the jury’s question appeared erroneous, the charge, when considered as a whole, was proper, adequate, and consonant with the factual situation presented in the case sub judice.” (Trial Court Opinion at 5). We do not take issue with the proposition that if, by reading the charge in toto, the law was fairly put before the jury, the judgment would not be reversed even though isolated portions of the charge were subject to criticism. See Giannone v. Reale, 333 Pa. 21, 3 A.2d 331 (1939); Vogel v. Suburban Construction Co., 144 Pa.Super. 588, 591, 20 A.2d 905, 907 (1941). However, the fallacy in the trial court’s argument is that we are unable to ascertain, under the circumstances, whether the jury was misled by the erroneous instruction on such a vital matter as appellant’s negligence. Our Supreme Court, in Pedretti v. Pittsburgh Railways Co., 417 Pa. 581, 209 A.2d 289 (1965) made some observations regarding erroneous instructions which are equally applicable here, viz.:

“ ‘Where an erroneous instruction consists of a palpable misstatement of the law, it is not cured by a conflicting or contradictory one which correctly states the law on the point involved, for the jury, assuming, as is their duty, that the instructions are all correct, may as readily have followed the incorrect as the correct one, and it is impossible to know which they accepted, [citing cases].’ See also: Stegmuller v. Davis, 408 Pa. 267, 182 A.2d 745 [(1962)]; Lieberman v. Philadelphia Transp. Co., 410 Pa. 179, 186, 188 A.2d 719 [(1963)].” Id., 417 Pa. at 586, 209 A.2d at 292, quoting Hisak v. Lehigh Valley Transit Co., 360 Pa. 1, 6, 59 A.2d 900, 903 (1948).

Accord Logan v. Bethlehem City, 324 Pa. 7, 13, 187 A. 389, 391 (1936) (where it is impossible to determine which instruction the jury followed,—those contained in the general charge, or in plaintiff’s point, which was read in error, the only recourse is to remand the case for a new trial); see Reiter v. Reiter, 159 Pa.Super. 344, 350, 48 A.2d 66, 70 (1946); Vogel v. Suburban Construction Co., supra, 144 Pa.Super. at 591, 20 A.2d at 907; Silvano v. Metropolitan Life Insurance Co., 135 Pa.Super. 260, 263, 5 A.2d 423, 424 (1939); see also Commonwealth v. Wooley, 259 Pa. 249, 253, 102 A. 947, 948 (1918) (“In attempting to justify himself in failing to correct his error, on the motion for a new trial, the trial judge utterly ignored the oft-repeated rule that, where correct and erroneous instructions are given in a charge, it is not to be conjectured, especially in a capital case, which the jury followed. It is enough to know that they may have followed the erroneous ones on a point vital to the defendant.”); Wolfe v. Blue Ridge Quarries, Inc., 9 Pa.D. & C. 533 (1927).

Instantly, the jurors’ question indicated that there was some confusion as to the course to be taken if they found both parties to be negligent. See, e.g., Nebel v. Mauk, 434 Pa. 315, 253 A.2d 249 (1969); Silvester v. Kerelejza, 158 Conn. 433, 262 A.2d 157 (1969); Bottaro v. Schoenborn, 157 Conn. 194, 251 A.2d 79 (1968); Annes v. Connecticut Co., 107 Conn. 126, 131, 139 A. 511 (1927). As a result, since such query was susceptible of an interpretation that the fact-finders were unclear concerning the issue of contributory negligence, it was harmful error for the court to fail to restate the law on the doctrine of discovered peril. See Silvester v. Kerelejza, supra; Bottaro v. Schoenborn, supra; Annes v. Connecticut Co., supra. Furthermore, the fact that the erroneous instruction was the last statement made to the jurors gave it undue emphasis. Johns v. Township of Shaler, 240 Pa.Super. 129, 131, 368 A.2d 339, 340 (1976); see also Calhoun v. Holland Laundry, 220 Pa. 281, 283, 69 A. 756, 757 (1908); Rice v. Commonwealth, 100 Pa. 28 (1882).

Consequently, given the fact that the jury was obviously concerned with the commission of some negligence attributable to the appellant, the trial court erred in failing to keep clearly before the jury the fact that appellant’s negligence was no bar to recovery, if they concluded that the doctrine of discovered peril was present in her case. In order to rectify the error committed, see Reilly v. Poach, 227 Pa.Super. 522, 323 A.2d 50 (1974), we reverse the order of the lower court and remand for a new trial.

      . As for Burton Chardak, appellee’s father and owner of the vehicle involved in the accident, the trial court granted a nonsuit in his favor. See Pa.R.Civ.P. 230. The propriety of this action is not questioned on appeal.

      . Since this cause of action arose on September 3, 1974, Pennsylvania’s Comparative Negligence statute, The Act of April 28, 1978, P.L. 202, No. 53, § 10(89), effective June 27, 1978, as amended, October 5, 1980, P.L. 693, No. 142, § 222(a), effective in 60 days; 42 Pa.C.S.A. § 7102 (Pamphlet, 1981), has no bearing on the instant case. See Costa v. Lair, 241 Pa.Super. 517, 363 A.2d 1313 (1976).

      . This statement seems to be at odds with the following instruction read by the trial court:
      “Should you find that both Margaret Smith and Sherre Lynn Chardak were negligent, and the negligence of each substantially contributed to the happening of the accident, then your verdict must be in favor of the defendant, Sherre Lynn Chardak. This is true even if you find the negligence of one was greater than the negligence of the other. Negligence on the part of Margaret Smith which substantially contributed to the happening of the accident, will prevent her from getting a verdict in her favor, even if you find her negligence was less than that of the defendant.
      That is a true statement.”
      (RR 261a)
      Given the seeming inconsistencies in the charge, it is not surprising that the jury was perplexed on the question of liability. In one portion of the charge they were told that appellant was permitted to recover despite her own negligence, and in another section they were specifically informed that negligence on the part of the appellant would preclude them from issuing a verdict in her favor.

      . At this juncture, the jury informed the trial judge that it had not yet reached the question of damages, inasmuch as it was still wrestling with the issue of liability. (RR 270a)

      . The fair import of the question propounded by the foreperson was that the jury was in doubt as to the legal effect of a finding of negligence on the part of both the appellant and the appellee. In this dilemma, notwithstanding what the court had already said to the jury, it was plainly incumbent upon the court to give full and adequate instructions to meet all phases of the situation which the question presented. The jury may have found that the appellant’s conduct was negligent up to the moment she was injured and that her negligence materially and essentially contributed to the injury, together w'th the negligence of the appellee; or, the jury may have found that it was negligent conduct for the appellant to place herself in a position of danger, but that after doing so, the appellee could have seen that the appellant could or would not escape from the danger, and that thereafter the appellee had an opportunity by the exercise of reasonable care to save the appellant from harm and did not do so. Either situation was consistent with the question asked of the court. It was therefore incumbent upon the court to give the jury a rule for their guidance in either aspect of their possible finding. This was not done, though the request was made by counsel. The effect of the court’s failure to thus refer to the doctrine of discovered peril was virtually to withdraw the matter of discovered peril from the jury’s consideration. The jury might reasonably have understood from this answer that they were not to apply the doctrine and so did not give the appellant the benefit of the rule in their consideration of the established facts. See Annes v. Connecticut Co., 107 Conn. 126, 131, 132, 139 A. 511, 512-13 (1927); see generally Osterritter v. Holl, 259 Pa.Super. 112, 393 A.2d 742 (1978).

      . At this stage of the proceedings, appellant’s counsel had a side bar discussion with the trial judge and appellee’s counsel, in which the following ensued:
      “MR. MASTERSON [Appellant’s counsel]: May I make one observation and remark?
      THE COURT: Yes.
      MR. MASTERSON: This has to do with this discovered peril aspect of the case which your answer may not include, that if they find both parties negligent, but if they find that the [appellee] still had an opportunity to avoid the collision, they may still find for the [appellant].
      THE COURT: Well, I think that has been more than adequately explained to them. It has been read to them two different ways on two different occasions. I can’t conceive that they don’t understand. I agree with you, but I don’t think that this question has implicit in it that there is a misunderstanding on that point. MR. HIGH [Appellee’s counsel]: I don’t think so either, Your Honor.” (Emphasis added) (RR 281a-282a)
      We point this exchange out, since appellant’s exception to the charge was made after the jury had left the courtroom. Ordinarily, exceptions to a charge must be presented before the jury retires to be preserved. See In re Estate of Fickert, 461 Pa. 653, 337 A.2d 592 (1975). Even so, “[w]hile the trial judge could properly have refused to allow any exceptions to the charge after the jury retired (See Rule 227(b) of Pa.R.Civ.P., 12 P.S. Appendix and Dinio v. Goshorn, 437 Pa. 224, 270 A.2d 203 (1970)), the instant record is clear, however, that the trial judge allowed the exception^ to be recorded. This was within the court’s prerogative.” Bentivoglio v. Ralston. 447 Pa. 24, 30, 288 A.2d 745, 749 (1972). Additionally, we find that the jury’s question, when given a fair reading, should have put the trial court on notice that there was some confusion in the minds of the jury regarding the law on negligence, contributory negligence, discovered peril and the sudden emergency doctrine, which was argued by the appellee at trial. (RR 262a-263a, 279a); see generally Commonwealth v. Mulgrew, 475 Pa. 271, 274, 380 A.2d 349, 351 (1977); Commonwealth v. Carter, 274 Pa.Super. 538, 545, 418 A.2d 537, 541 (1980). Accordingly, the court’s response should have included clarification on the doctrine of discovered peril. See note 5 supra.

      . For us now to decide that the jury followed the general charge and ignored the judge’s answer to their question, would be a matter of pure speculation, and concerning such matter we are not permitted to conjecture. See Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); Logan v. Bethlehem City, supra; Vogel v. Suburban Construction Co., supra.


author: PER CURIAM:

text:
    435 A.2d 630
    COMMONWEALTH of Pennsylvania v. Paul E. CASHMERE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Oct. 9, 1981.
    Lewis J. Bott, Assistant Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   PER CURIAM:

This case is remanded to the trial court for the filing of a written statement as to the evidence relied upon and the reasons for revoking appellant’s probation. See Commonwealth v. DeLuca, 275 Pa.Super. 176, 182, 418 A.2d 669, 673 (1980); Commonwealth v. Davis, 234 Pa.Super. 31, 39, 336 A.2d 616, 621 (1975). Jurisdiction is retained by this court pending remand.


author: BROSKY, Judge:

text:
    435 A.2d 630
    COMMONWEALTH ex rel. Deborah L. WRIGHT v. James S. LACY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 10, 1980.
    Decided Sept. 25, 1981.

      Pamela Pryor Cohen, Philadelphia, for appellant.
    Michelle Goldfarb, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, WATKINS and CIRILLO, JJ.

       Judge VINCENT A. CIRILLO of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.

   BROSKY, Judge:

On June 19, 1979, appellant was adjudged the father of appellee’s child. At that time, a hearing on support was continued until August of 1979. This appeal was filed before the support matter was heard, and, the appellee argues, as the trial court held, that the appeal is interlocutory. The trial court reached its decision based upon the analysis presented in our decision in Williams v. Williams, 253 Pa.Super. 444, 385 A.2d 422 (1978).

The standard by which we determine whether an appeal from a decision of a trial court is appealable is clear. The jurisdiction of the Superior Court is limited to appeals from common pleas court final orders, excepting where a statute provides otherwise. Williams, supra.

Appellant asserts that an immediate appeal should be heard in the instant case because of decisions of the Supreme Court recognizing parental rights, notably, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In Stanley, supra, the United States Supreme Court held:

The State of Illinois assumes custody of the children of married parents, divorced parents, and unmarried mothers only after a hearing and proof of neglect. The children of unmarried fathers, however, are declared dependent children without a hearing on parental fitness and without proof of neglect. Stanley’s claim in the state courts and here is that failure to afford him a hearing on his parental qualifications while extending it to other parents denied him equal protection of the laws. We have concluded that all Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. It follows that denying such a hearing to Stanley and those like him while granting it to other Illinois parents is inescapably contrary to the Equal Protection Clause, [footnote omitted]

Thus, it is clear in Stanley, supra., that denying a putative father the right to assert his rights is unconstitutional under the analysis presented in Stanley, supra. Our problem is somewhat different though we believe essentially very similar. Here, we review the denial of an alleged father’s right to appeal a determination of paternity incident to a support action, where no support order has issued, where the putative father denies paternity.

Previous decisions have held the jurisdiction in support actions is very strictly constrained. It is clear that we shall not resolve disputes presented in interlocutory appeals other than those which we are statutorily authorized to hear. However, it is no longer clear that there is no such statutory authorization in the instant case.

Appeals from support orders are statutorily authorized by 42 Pa.C.S.A. § 6774 which states:

(a) By Department of Public Welfare.—If the Department of Public Welfare is of the opinion that a support order is erroneous, or inadequate, or presents a question of law warranting an appeal in the public interest, it may:
(1) Perfect an appeal to the proper appellate court if the support order was issued by a court of this Commonwealth; or
(2) If the support order was issued in another state, cause the appeal to be taken in the other state.
In either case expenses of appeal taken by such department may be paid from funds appropriated to the Department of Public Welfare.
(b) By obligee.—In the event the Department of Public Welfare fails or refuses to file an appeal on behalf of the obligee, such obligee may file such appeal as provided in subsection (a)(1) and (2).
(c) By obligor.—The obligor shall have the right to file an appeal to the proper appellate court if the support order was issued by a court of this Commonwealth, or may cause the appeal to be taken in the other state, if the support order was issued in another state.[]

It is, however, also true that a trial court maintains ongoing jurisdiction in support cases, 42 Pa.C.S.A. § 6710, and while that fact alone does not expand our jurisdiction, we hold it provides added strength to our position that one must accept jurisdiction. § 6710 states:

The court making the order shall at all times maintain jurisdiction of the cause for the purpose of enforcement of the order and for the purpose of increasing, decreasing, modifying or rescinding such order, without limiting the right of a complainant to institute additional proceedings for support in any county wherein the defendant resides or where his property is situated.

The court, therefore, continues to hold jurisdiction over the support case for an indefinite period of time. Obviously, we cannot hold that this continuous jurisdiction prevents any appeal. Certainly, one line drawn at which an appeal is permitted is found in Section 6774. We are not convinced, however, that Section 6774 provides the only means of appeal in a support action.

We have very recently discussed the rights of putative fathers in In re Mengel, 287 Pa.Super. 186 at 189-190, 429 A.2d 1162 at 1164-1165 (1981), who desired to assert his paternity by seeking a declaratory judgment, in which we said:

The United States Supreme Court has held that an unwed father has a cognizable and substantial interest in obtaining custody of his children and that this interest is deserving of protection. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). See: State ex rel. Rothstein v. Lutheran Social Services (Memorandum Opinion), 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786 (1972).
This court has recognized the rights of unwed fathers. In the case of Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super. 487, 381 A.2d 1311 (1977), we held that whether an unwed father should have visitation rights is to be decided by the same standard as is applied in the case of legitimate children.
We wrote:
In Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208 [1213], 31 L.Ed.2d 551 (1972), it was held that the interest of a father in his illegitimate child was “cognizable and substantial.” Id. [252 Pa.Super.] at 492, 381 A.2d at 1314. ... It is only the father of an illegitimate child who has been relegated to a secondary position. To the extent that this secondary position depends on the traditional differentiation between the roles of a mother and a father it can no longer be accepted or enforced. Id., 252 Pa.Super. at 491, 381 A.2d at 1313.

In Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976), our Supreme Court held that unwed fathers have the right to contest the adoption of their children.

Inheritance rights of unwed fathers are provided in Title 20 P.S. 2107 which provides:

(c) Child of father.—For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:
(1) If the parents of a child born out of wedlock shall have married each other.
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.
(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.
As amended 1978, Nov. 26, P.L. 1269, No. 303, § 1, imd. effective.
Appellant argues that he has standing to obtain a declaratory judgment and the supplemental relief he seeks because a determination that he is the child’s father would confer upon him the rights that accrue from paternity. He refers to inheritance rights and to his right to contest the adoption of a child found to be his as illustrative of the fact that an unwed father has rights with respect to his children.
As we have seen, unwed fathers do have the rights to which appellant refers. Those rights create a substantial, direct and immediate interest in the determination that one is the father of a child.

Furthermore, a paternity determination may accord a child certain rights. He may become an heir to his father, 20 Pa.C.S.A. § 2107(c)(3). See also the following statutory provisions and case law where children are accorded certain other benefits upon a paternity determination: 5 U.S.C. § 8901 (federal health insurance), 8 U.S.C. §§ 1409, 1431, 1432, 1452 (citizenship), 10 U.S.C. § 1477, 37 U.S.C. § 401 and 38 U.S.C. § 765 (servicemen’s benefits). Accordingly, there are numerous rights which a child acquires upon a determination of his paternity.

It can be argued that it is far too artificial a distinction to hold that the rights of a putative father who alleges he is the father, and the child of an unwed father should have the right to assert paternity and not permit an alleged father to deny paternity prior to an order requiring him to pay support. However, under existing law the appellant must wait to attack the paternity determination until support has been ordered. Williams v. Williams, supra; see also Civil Rule of Procedure, Title 231, § 1910.15(f).

Pennsylvania also has a statutory provision which provides for a determination of paternity. 42 Pa.C.S.A. § 6767 provides:

If the obligor asserts -ás a defense that he is not the father of the child for whom support is sought and it appears to the court that the defense is not frivolous, and if both of the parties are present at the hearing or the proof required in the case indicates that the presence of either or both of the parties is not necessary, the court may adjudicate the paternity issue. Otherwise the court may adjourn the hearing until the paternity issue has been adjudicated.[] [Emphasis added.]

The final sentence of Section 6767 appears to provide that a separate adjudication exists regarding paternity.

Thus, it is clear that the law in the United States has recognized that many rights flow to illegitimate children from their fathers after a paternity determination is reached. And the General Assembly can be argued to have provided in Section 6767 that paternity may be determined separately from support. And, while Section 6774 provides for the right to appeal from a support order it does not specifically prohibit an appeal from a paternity determination under Section 6767. Therefore, it can be reasoned that the General Assembly intended that an appeal from a paternity determination shall be permissible.

We are also aware that this result can be reached under the test established in Pennsylvania to determine finality. When reviewing a finality issue, we must determine whether:

The order appealed from does not put the [parties] out of court or constitute a conclusive adjudication of the proceeding, and the statute does not authorize an appeal from an interlocutory order. . . the order of the court is not appealable at this stage of the proceeding. . . .

Steth v. Henderson, 200 Pa.Super. 268, 269, 188 A.2d 823, 824 (1963).

See Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A.2d 353 (1968).

In accordance with this argument, the paternity determination effectively places the father out of court because he may immediately have numerous demands placed upon him apart from the support determination. If he cannot challenge paternity in the other proceedings because of some notion of collateral estoppel, he will be held out of court, to that extent, until the support order is issued. In this manner, it can be asserted that the determination of paternity is effectively conclusive, resulting in numerous liabilities which flow from that decision.

Thus, very strong arguments exist in favor of permitting the appellant to appeal prior to a support determination. We recognize that the nature of appellant’s contentions assert that his due process rights are being denied under the law as it presently exists. However, we are precluded from deciding on the merits of the appellant’s argument by our Supreme Court’s decision, to adopt the analysis presented in our opinion in Williams v. Williams, supra, in its recent declaration of Appellate Rule of Procedure, Title 231 1910.15(f). We, therefore, are obliged to hold that the instant appeal is interlocutory.

Accordingly, the appeal is quashed.

WATKINS, J., concurs in result.

      . Act of July 9, 1976, P.L. 586, No. 142 § 2, eff. June 27, 1978; reenactment of Act of December 6, 1972 (No. 291) § 36 (62 P.S. § 2043-38).

      . Act of July 9, 1976, P.L. 586, No. 142, § 6710 added 1978, April 28, P.L. 202 No. 53 § 10(88), eff. June 27, 1978; Reenactment of Act of July 13, 1953 (P.L. 431, No. 95), § 10 (62 P.S. § 2043-40).

      . See also, Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 701 (1977), which held Illinois Interstate Succession Law, which treated illegitimate children differently from legitimate children was an unconstitutional violation of equal protection, and Weber v. Aetna Casualty and Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), in which the Supreme Court held that a Louisiana Workmen’s Compensation Law, which denied equal rights to dependent, unacknowledged, illegitimate children was unconstitutional. Pennsylvania decisions have followed Weber, supra, in Le-high Foundations, Inc. v. Workmen’s Compensations Appeals Board, 39 Pa.Cmwlth. 416, 395 A.2d 576 (1978); Westinghouse Electric Corp. v. Workmen’s Compensation Appeals Board, 39 Pa.Cmwlth. 42, 394 A.2d 1071 (1978); Brown v. Workmen’s Compensation Appeals Board, 20 Pa.Cmwlth. 330, 342 A.2d 134 (1975).

      . Civil Rule of Procedure, Title 231 § 1910.15(f), effective July 23, 1981, states:
      (f) The interlocutory order of paternity is not an appealable order but any issue of paternity raised in a post-trial motion or exception may be included in an appeal from a final order of support.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, eff. June 27, 1978, Reenactment of Act of December 6, 1972 (No. 291), § 27 (62 P.S. § 2043-29).