author: WIEAND, Judge: POPOVICH, Judge, JOHNSON, Judge, DEL SOLE, Judge,

text:
    521 A.2d 433
    Kenneth J. SPARLER, Appellant, v. FIREMAN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 24, 1986.
    Filed Feb. 4, 1987.
    Reargument and Clarification Denied March 5, 1987.

      William B. Anstine, Jr., York, for appellant.
    Rebecca N. Tortorici, York, for appellee.

      Before CIRILLO, President Judge, and CAVANAUGH, WICKERSHAM, ROWLEY, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH and JOHNSON, JJ.
   WIEAND, Judge:

In this amicable action for declaratory judgment, submitted on an agreed statement of facts, the trial court was asked to determine whether Fireman’s Insurance Company of Newark, New Jersey (Fireman’s) was liable to its insured, Kenneth J. Sparler, for underinsured motorist coverage. The trial court entered judgment in favor of the insurance company, and Sparler appealed. We affirm.

The agreed statement of facts disclosed that Sparler had sustained personal injuries as a result of an intersectional, vehicular accident in which a vehicle operated by Thomas Garber had violated the mandate of a stop sign. Sparler’s losses were in excess of forty thousand ($40,000.00) dollars. He settled his claim against Garber for twenty-five thousand ($25,000.00) dollars, this being the limit of the liability of Garber’s insurance carrier under the terms of its policy. In connection with the settlement, Sparler and his wife executed a general release. Sparler then made a claim against Fireman’s, his own insurance carrier, for underinsured motorist benefits. Fireman’s denied liability. The parties thereafter commenced an amicable action for declaratory judgment, requesting the trial court to determine whether the insurance policy issued by Fireman’s rendered it liable to Sparler for underinsurance benefits, and if so, whether the general release executed in connection with the third party settlement operated to bar Sparler’s recovery of such benefits from his own insurance carrier. The trial court held that although the insurance policy did establish Sparler’s right to recover underinsurance benefits, he was precluded from recovering the same because of the terms of the general release which he had executed when he settled his third party claim. Therefore, judgment was entered in favor of Fireman’s. .

On appeal, Sparler contends that because the general release which he had executed in favor of the third party tortfeasor was not intended to affect the contractual liability of Fireman’s, the release could not operate to bar his recovery from Fireman’s of underinsurance benefits. We agree with this contention.

Written releases are construed according to the rules governing the construction of contracts generally. 76 C.J.S. Release § 38 (1952). A release normally covers only such matters as can fairly be said to have been within the contemplation of the parties when the release was given. Estate of Bodnar, 472 Pa. 383, 387, 372 A.2d 746, 748 (1977); In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 456-457, 477 A.2d 527, 534 (1984); Gateway Center Corp. v. Merriam, 290 Pa.Super. 419, 425, 434 A.2d 823, 826 (1981). The intention of the parties to a written release is paramount, and in construing a release, a court should adopt an interpretation which, under all of the circumstances, “ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 168, 199 A.2d 540, 543 (1964). See: Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963); Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., 327 Pa.Super. 99, 107, 475 A.2d 117, 121 (1984). Although a court will not relieve the parties of the effect of an improvident contract, it must not allow a “rigid literalness” to be used to create an improvident contract for the parties contrary to their intent. Mowry v. McWherter, 365 Pa. 232, 238, 74 A.2d 154, 158 (1950). Thus, the words of a release “should not be construed to extend beyond the express consideration mentioned so as to make a release for the parties which they never intended or contemplated.” Brill’s Estate, 337 Pa. 525, 527, 12 A.2d 50, 52 (1940). See: Furtek v. West Deer Township, 19 Pa.D. & C.2d 169, 178, aff'd, 191 Pa.Super. 405, 156 A.2d 581, 585 (1959).

The general release executed by Sparler and his wife in the instant case provided as follows:

That we Kenneth Sparler and Jane Sparler, ... for the sole consideration of Twenty-Five Thousand dollars ($25,-000.00), to us in hand paid, receipt whereof is hereby jointly and severally acknowledged, have remised, released, and forever discharged and ... do hereby remise, release and forever discharge Thomas H. Garber and his ... successors and assigns ... and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, loss and damage to property, and the consequences thereof, resulting, and to result, from an accident which happened on or about the 30th day of April 1983....

These terms were contained in a standard release form. In the blank space provided on the form for the name of the party being released and discharged, the name “Thomas H. Garber” had been inserted. Although the phrase “and all other persons, firms and corporations” appeared in boilerplate print following Garber’s name, the release did not otherwise suggest or identify Fireman’s as a party being released or discharged. The only reasonable interpretation of the release, when it is considered in light of the circumstances surrounding its execution, is that Sparler did not intend to release Fireman’s from its contractual obligation. Fireman’s was not a party to the release, did not negotiate to reduce any obligations which it might have had under the policy, and paid no consideration to be released from any such contractual obligations. To interpret the release as discharging Fireman’s alleged contractual obligations, under these circumstances, would be to insert a benefit for which no separate consideration was paid and which does not appear to have been within the contemplation of the parties.

The trial court’s broad interpretation of Sparler’s general release was based upon a decision of the United States District Court for the Eastern District of Pennsylvania in Dorenzo v. General Motors Corp., 334 F.Supp. 1155 (E.D. Pa.1971), appeal dismissed, 474 F.2d 1339 (3d Cir.1973). Dorenzo, however, is inapposite to the instant case. There, the party claiming the benefit of the general release was a joint tortfeasor whose alleged liability, like that of the released party, had been premised on a single tortious injury to the plaintiff. Here, however, the party seeking to benefit from the general release is an insurer whose contractual liability is separate and apart from the tortious liability of the released tortfeasor.

This is an important distinction. It was recognized both in Cingoranelli v. St. Paul Fire & Marine Insurance Co., 658 P.2d 863, 39 A.L.R.4th 366 (Colo.1983) (en banc) and in Bailey v. Aetna Casualty and Surety Co., 497 S.W.2d 816 (Mo.Ct.App.1973). In Cingoranelli, the plaintiff had been injured when the car in which she was a passenger collided with an automobile driven by Bertha Betonski. The driver of the vehicle in which the plaintiff had been riding was insured by St. Paul Fire & Marine Insurance Co. (St. Paul). After the plaintiff had agreed to settle her claim for bodily injury against Betonski, the following release was executed: Cingoranelli v. St. Paul Fire & Marine Insurance Co., supra 658 P.2d at 864 (emphasis added). Thereafter, the plaintiff filed personal injury protection (PIP) claims against St. Paul under Colorado’s no-fault insurance statute. When St. Paul refused payment, the plaintiff commenced an action to recover the PIP benefits. The trial court held that the release of the tortfeasor operated as a total bar to all claims, including that for PIP benefits against St. Paul. The Supreme Court of Colorado reversed, observing that the plaintiff’s PIP claims against St. Paul were “fundamentally distinct in character” from her tort claim against Betonski. Id. 658 P.2d at 868. The PIP claim, the Court noted, was a direct contractual claim against the PIP insurer. Id. 658 P.2d at 867. The only similarities between this claim and the tort claim, the Court said, were purely coincidental; they both arose from an automobile accident, and the ultimate financial responsibility for both rested with St. Paul. Id. 658 P.2d at 868. Therefore, the Court held, “an automobile accident victim’s general release of a tortfeasor, in the absence of a specific provision which unequivocally includes PIP claims within the terms of the release, does not operate to release an automobile insurer from its obligation to pay PIP benefits to the injured victim.” Id. 658 P.2d at 869.

“I, Mary Cingoranelli, ... for the sole consideration of twenty-five thousand dollars ($25,000.00), to me in hand paid, receipt whereof is hereby acknowledged, have remised, released, and forever discharged, and ... do hereby remise, release, and forever discharge, Bertha Betonski and ... her ... successors and assigns ... and all other persons, firms, and corporations, of and from any and all claims, demands, rights, or causes of action of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property, and the consequences thereof, resulting, or to result, from a certain accident which happened on or about the 7th day of April 1975, for which I have claimed the said Bertha Betonski to be legally liable, which liability is hereby expressly denied.”

The plaintiff in Bailey also had been injured as a result of an automobile collision. The plaintiff’s medical expenses as a result of the accident were covered by a policy of insurance which had been purchased by her mother from Aetna Casualty and Surety Co. (Aetna). Aetna was notified of the collision and of the medical expenses incurred by the plaintiff but refused to make payment. Meanwhile, the plaintiff executed a general release in which the driver of the other vehicle and “any and all other persons, firms and corporations” were discharged from “any and all claims, actions, causes of action and expense” arising out of the accident. Aetna thereafter argued that as a result of the general release of the driver, it had been discharged from its obligation to pay the plaintiff’s medical expenses. The Missouri Court of Appeals disagreed, holding that the release had not relieved Aetna of its contractual obligation. Recognizing that the intention of the parties was the ultimate test for determining the effect of a release, the Court analyzed the facts underlying the execution of the instrument.

Aetna was not a party to the litigation giving rise to the Release nor was it privy to the defendant tort-feasors. Its obligation to pay medical expenses to Jacquelyn Bailey [the plaintiff] was then in dispute and her claim in the litigation was not only against different persons but was also in tort as distinguished from the present claim on contract asserted against Aetna.

Bailey v. Aetna Casualty and Surety Co., supra at 820. Under these circumstances, the Court concluded, “[i]t would require a degree of judicial agility of which we are incapable, to read into this Release any intention on the part of plaintiff to release her claim for medical expenses against Aetna under its policy of insurance.” Id.

We find the reasoning followed in Cingoranelli and Bailey to be persuasive and, therefore, we adopt it as our own. We conclude that in the absence of unequivocal language to the contrary, a general release of a third party tortfeasor will not be held to discharge the separate contractual obligation of an insurance carrier to provide under-insurance benefits.

In the instant case, the general release executed by Sparler in favor of the third party tortfeasor did not contain language unequivocally discharging Fireman’s from its alleged contractual obligation to provide underinsurance coverage to Sparler. Thus, contrary to the conclusion reached by the trial court, any right to underinsurance benefits which Sparler might have acquired by virtue of the contract was not relinquished by the release which he had executed in favor of the third party tortfeasor.

Although the trial court’s reasoning regarding the release was incorrect, it does not follow that its order disallowing the recovery of underinsurance benefits must be reversed. We are required to affirm the judgment entered by the trial court if it was correct for any reason. E.J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Gwinn v. Kane, 465 Pa. 269, 279 n. 12, 348 A.2d 900, 905 n. 12 (1975); Green v. Juneja, 337 Pa.Super. 460, 464 n. 5, 487 A.2d 36, 39 n. 5 (1985); Emerick v. Carson, 325 Pa.Super. 308, 316 n. 2, 472 A.2d 1133, 1137 n. 2 (1984).

Fireman’s argued in the trial court and again on appeal that Sparler was not entitled to underinsurance benefits under the terms of its policy. The trial court concluded, however, that there was coverage and that Sparler was entitled to recover the difference between his expenses of forty thousand ($40,000.00) dollars and the twenty-five thousand ($25,000.00) dollars which he was able to recover from the third party tortfeasor. The amount of this difference, of course, was fifteen thousand ($15,000.00) dollars. This requires that we examine the terms of the policy.

Part 6 of the policy issued by Fireman’s provided for “Uninsured (and Underinsured) Motorist” coverage. The amount of the coverage provided was fifteen thousand ($15,000.00) dollars for each person and thirty thousand ($30,000.00) dollars for each accident. The policy provided:

By “uninsured motor vehicle” we mean a land motor vehicle ...
(a) with no bodily injury liability bond or policy applying at the time of the accident.
(b) with minimum legal liability bond or policy applying at the time of the accident as required by law governing the insured auto. However, the minimum is less than the Limit of Coverage of Part 6.
(c) With a bodily injury liability bond or policy applying at the time of the accident which is less than the minimum legal Limit of Coverage where the insured auto is principally garaged.

Another provision pertaining to underinsured motorist coverage is found in Subdivision D of Part 6 as follows:

Any amounts payable under Part 6 shall be reduced by all sums
(a) paid because of bodily injury by or on behalf of someone who may be liable.

Subparagraph (a) of the definitional section by its terms has application to an “uninsured” motor vehicle and not to a vehicle which is “underinsured.” It is subparagraphs (b) and (c), rather, which refer to a third party vehicle which, although insured, is underinsured. The third party vehicle was not “underinsured” according to subparagraph (b), because, as the parties have agreed, Sparler received from the third party tortfeasor’s insurance carrier a sum greater than the “Limit of Coverage of Part 6” of the Fireman’s policy. Because the parties have not stipulated as to the place where the third party vehicle was “principally garaged,” however, we are unable to know whether that vehicle, although insured, was underinsured within the meaning of subparagraph (c).

Still, it is clear that Sparler in fact was paid the sum of twenty-five thousand ($25,000.00) dollars by or on behalf of the third party tortfeasor. According to the provision contained in Subdivision D of the policy, the twenty-five thousand ($25,000.00) dollars received by Sparler by or on behalf of the third party tortfeasor must be set off against any amount payable by virtue of the “Uninsured (and Underinsured) Motorist” coverage provided in Part 6 of the policy. When the twenty-five thousand ($25,000.00) dollar recovery is set off against the fifteen thousand ($15,000.00) dollars which Fireman’s agreed to pay to Sparler pursuant to Section 6, it becomes evident that Fireman’s has no further liability for underinsured motorist coverage.

We conclude, therefore, that Sparler’s claim for underinsured motorist coverage has been precluded not because of the terms of the third party release which he executed, as the trial court concluded, but by the very terms of the policy itself. Because Sparler’s third party recovery was in excess of and had to be set off against the underinsured motorist coverage provided by Fireman’s policy, the judgment entered in favor of Fireman’s was proper and must be affirmed.

Affirmed.

POPOVICH, J., files a concurring opinion.

JOHNSON, J., files a concurring opinion in which CAVANAUGH, J., joins.

DEL SOLE, J., files a concurring and dissenting opinion.

POPOVICH, Judge,

concurring:

I concur only in the result, for I believe the Majority has gone astray in its analysis.

The scope of contractual accountability has been recently expounded upon by our Supreme Court in Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983). There, the high court unequivocally wrote that where the terms of an agreement are clear, precise and free from doubt, the signators are bound by its language.

Instantly, Sparler signed a release, in exchange for $25,-000 received from a third party tortfeasor, which contained language exonerating not only the third party from further liability but insulated “all other persons, firms and corporations” from exposure because of the execution of the release.

Sparler, being a party to the agreement, could have very easily deleted the language which precipitated the instant declaratory judgment. His failure to excise the wording is now being condoned and viewed with favor by this Court as a mere adoption of a position espoused by two of our sister states distinguishing contractual liability from tortious liability as the foundation for holding the insurer liable because of not being a party to or a beneficiary of the agreement. But for the conclusion that the insurer’s set-off clause rendering payment to the plaintiff unnecessary, the insurer would be held responsible for payment.

I find the issue to be a straightforward one. The contract signed by Sparler is not unenforceable because of either a latent or patent ambiguity. Nor is there an allegation that a mistake of fact induced the plaintiff to sign the instrument in question.

To side-step the obligations flowing from the contract, in the face of an otherwise lucid agreement, would be contrary to established principles of contract law requiring that an individual be bound by the terms of an agreement, i.e., pacta sunt servanta. Restatement (Second) of the Law of Contracts, Vol. 2, at page 309; Standard Venetian Blind, supra.

Moreover, the Majority’s approach to giving effect to the release, save for the verbiage relating to “firms and corporations” being insulated from further liability, is the equivalent of giving only partial effect to the terms of the entire agreement and renders the quoted language pure surplus-age. There is no indication that such was the intent of the plaintiff. To do so is mere speculation and surmise.

If a portion of the release is to be neutralized on the ground that it was not the intent of the plaintiff to excuse the insurer from responsibility for paying a claim filed by the plaintiff following the signing of a release, then such a rationale carried to its logical conclusion should hold the entire agreement invalid and not merely portions of it.

To this writer, the agreement contains verbiage which encompasses the insurer and, thus, should be given its clear, unambiguous and lucid meaning. Resorting to the intent of the parties is only necessary where the language to the agreement is ambiguous and subject to multiple interpretations. See Corbin on Contracts § 538.

Further, the Majority attempts to avoid the obvious consequences of the release by arguing that the insurer was not a party to its terms and, therefore, should not be considered to have been a beneficiary of the release. However, the insured’s ability to subrogate the claim would be precluded by the release signed by Sparler, an interest which surely would not be advanced by our holding this day, and is ameliorated only by the fact that Sparler’s recovery under the release forecloses his recoupment of any additional monies from the insurer because of a set-off clause in the policy.

Thus, given the Majority’s ultimate ruling denying the claimant’s right to recovery on grounds of set-off under the contract itself, with which I agree, I concur in the result only.

JOHNSON, Judge,

concurring:

I agree with the majority that Sparler’s third party recovery was in excess of, and had to be set off against, the underinsured motorist coverage provided by Fireman’s policy. Haegele v. Pennsylvania General Ins. Co., 330 Pa.Super. 481, 490-93, 479 A.2d 1005, 1010-11 (1984); Votedian v. General Acc. Fire & Life Assur. Corp., 330 Pa.Super. 13, 19-20, 478 A.2d 1324, 1328 (1984). I also agree that we are required to affirm the trial court’s judgment if it was correct for any reason.

Since the amount of the third party recovery exceeded the amount Fireman’s agreed to pay, Fireman’s has no further liability and that should end the matter. I, therefore, would not reach or seek to determine whether a general release of a third party tortfeasor would discharge the obligations of an insurance carrier under its policy.

CAVANAUGH, J., joins.

DEL SOLE, Judge,

concurring and dissenting:

I join the Opinion by my distinguished colleague, Judge Donald E. Wieand, insofar as it reviews the effect of a written release executed in favor of a tortfeasor and how that release would apply to contractual claims arising under an insurance policy issued to the releasor.

With the greatest respect to my colleague, Judge Popovich, I believe that his analysis, if accepted, would represent a drastic change in the law of Pennsylvania. Certainly, one could extend his analysis to claims against accident and health insurers, hospitalization carriers and others similarly situated because of the nature of the language in the third party tortfeasor release. Since this is not, and never has been, the law of the Commonwealth, I believe that Judge Wieand’s Opinion correctly disposes of the release issue.

My disagreement with the majority Opinion centers on its discussion of underinsurance coverage in this case. First, it must be pointed out that there is no clear cut definition of the term “underinsured motorist” within the policy issued by the defendant. Rather, the policy states: “[t]he term ‘uninsured’ also includes an underinsured motor vehicle.” Absent any definition of “underinsured” in the terms of the policy, the majority refers back to the definition of the term “uninsured” in its analysis. The policy states:

By “uninsured motor vehicle” we mean a land motor vehicle ...
(a) with no bodily injury liability bond or policy applying at the time of the accident.
(b) with minimum legal liability bond or policy applying at the time of the accident as required by law governing the insured auto. However, the minimum is less than the Limit of Coverage of Part 6.
(c) with a bodily injury liability bond or policy applying at the time of the accident which is less than the minimum legal Limit of Coverage where the insured auto is principally garaged.

The record clearly reveals that the vehicle involved in the collision with the Appellant was not an uninsured motor vehicle as that term is defined in subparagraph (a). The stipulated set of facts indicate that Appellant received the policy limits on the vehicle. Accordingly, I agree with the majority that the vehicle was insured and therefore subparagraph (a) does not apply. Likewise, I agree with the Majority’s finding that under the facts presented in this case subparagraph (b) does not apply.

With regard to (c) the majority improperly concludes that we need to know the state of residence of the third party vehicle. The majority in arriving at this conclusion misreads the term “insured auto”. The term “insured auto” used by defendant in the policy, is clearly defined on page 4 of the policy as the vehicle shown on the Coverage Data Page, a newly acquired vehicle, a trailer, or a temporary substitute vehicle. The insured auto in this case is Appellant’s vehicle which is principally garaged in the Commonwealth of Pennsylvania. Thus, the majority’s conclusion that we cannot determine whether there was coverage since we do not know where the third party tortfeasor’s vehicle was garaged, is incorrect. The location where the third party tortfeasor’s vehicle is garaged is of no import relative to the definition of uninsured motorist as provided in the instant policy.

Not only do I believe the Majority incorrectly interpreted the language of subsection (c), but in my view neither subsections (a), (b) or (c) apply to the question at hand. The issue in this case in its simplest form is whether or not there was underinsured motorist coverage under the terms of this policy and, if so, how would that provision apply in this case. The policy itself does not provide a definition of “underinsured vehicle”. Compare Votedian v. General Acc. Fire & Life Assur., 330 Pa.Super. 13, 478 A.2d 1324 (1984) ftn. 1 (where the policy at issue defined the term underinsured vehicle.) As recited, the only applicable language in the policy states: “The term uninsured motor vehicle also includes an underinsured motor vehicle.”. Unlike the majority I do not read this statement to provide that the terms uninsured and underinsured can be used interchangeably. The terms refer to two distinct situations. In Votedian v. General Acc. Fire & Life Assur., supra., this court held:

Underinsured motorist coverage is not the same as uninsured motorist coverage. The Uninsured Motorist Coverage Act does not require underinsured motorist coverage ... Our legislature did not intend to provide additional insurance to those who although they suffered severe injury had recourse to at least the legal minimum of insurance through the other motorist.
The legislature has not by statute established a policy which compels the writing of underinsured motorist coverage. An insurance company is wholly free to issue a policy of automobile liability insurance which contains no protection whatsoever against underinsured motorists. Although companies, for an additional premium, may undertake to write such coverage, the underinsured motorist feature is purely optional. An insured may purchase such coverage or he may decline to pay the premium charged therefor and accept a policy which contains no such coverage. When underinsured motorist coverage is included, the terms and limitations thereof are not controlled by statute or by public policy but by the agreement reached by the parties. That agreement, as expressed in the policy of insurance, may place limitations upon underinsured motorist coverage, subject only to the requirement that the limitation be clearly worded and conspicuously displayed.

330 Pa.Super. at 18-19, 478 A.2d 1324. (citations omitted).

In the policy issued by defendant uninsured and underinsured motorist coverage is provided in Part 6, yet the term underinsured is not defined in the glossary or in Part 6. To the average individual the term underinsured motorist coverage obviously would refer to a situation where a third party tortfeasor lacks sufficient insurance limits to satisfy the insured’s claim and the insured is able to collect the difference from its carrier up to the limits of the policy. Even the general assembly in the new Act defines an underinsured motor vehicle as “[a] motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay damages.” 75 Pa.C.S.A. § 1702. If the defendant wished to proscribe a different definition to the term “underinsurance” than what is commonly used, the defendant should have specifically and clearly given such a definition in the agreement. Under the instant policy the insured is lead to believe he is being afforded the extra protection of underinsurance coverage, however the majority would rule that the definition which the policy provides for the term uninsured also applies to the term underinsured. The majority would find the coverage to be one in the same. I cannot subscribe to the majority’s interpretation which would, in defining the term underinsured, deviate from the generally accepted definition and which would do so absent a clear indication in the policy of such an intention.

Turning to the “set-off” provision contained in the policy, we find:

Any amounts payable under Part 6 shall be reduced by all sums:
(a) paid because of bodily injury by or on behalf of someone who may be liable. (Emphasis added).

The majority interprets this language and concludes that Appellant, who has received $25,000.00 from the third party tortfeasor which amount is in excess of the coverage limits, is not entitled to $15,000.00 due to this set-off language. In Votedian, the set-off provision stated: “ ‘limit of liability shall be reduced ...’ by payments made”. Votedian v. General Acc. Fire & Life Assur., 330 Pa.Super. at 20, 478 A.2d 1324. The court in Votedian found this language to be clear and unambiguous and to require the Appellees $30,000.00 liability limits to be reduced by the sum previously paid on behalf of the tortfeasor legally responsible for Appellees damages. The policy in the instant case provides a set-off for “amounts payable under Part 6” unlike the policy in Votedian which required a set-off from the “limits of liability”. While the “limits of liability” in this case are $15,000.00, the “amounts payable under Part 6” are defined in part 6 B of the policy which provides:

We will pay damages which a Covered Person is legally entitled to recover from the owner or operator of an [underinsured] motor vehicle because of bodily injury
(a) sustained by a Covered Person; and
(b) caused by an accident.
(Emphasis added.)

In contrast to Votedian the set-off in this case is to be taken from the damage figure, not the figure which represents the limits of liability.

The parties have stipulated that the insured's damages were in excess of $40,000.00. Under the terms of the policy, this amount “shall be reduced by” $25,000.00, the sum paid by the third party tortfeasor. In this case the difference of $15,000.00 equals the liability limits under the policy and, therefore, I believe Appellant is entitled to collect $15,000.00 from the carrier under the terms of the policy.

      . By thus interpreting the policy, we do not suggest that the terms "uninsured" and "underinsured” can be used interchangeably. We conclude merely that where, as here, the expressed intent of the parties to an insurance contract is to subsume the definition of "underinsured motor vehicle” within a contractual provision which purports to define “uninsured motor vehicle,” it is necessary to look to that provision in order to ascertain the meaning of the term "underinsured motor vehicle.” The policy issued by Fireman’s specifically states that "[t]he term uninsured motor vehicle also includes an underinsured motor vehicle.” Because the term underinsured motor vehicle is not otherwise defined in Part 6 of the policy, it is necessary to turn for guidance to the definitional section for an "uninsured motor vehicle.” That provision contains two subsections, (b) and (c), which obviously do not describe an uninsured motor vehicle, but which provide generally accepted definitions of underinsurance.
      The language of a contract should be given its ordinary and usual meaning unless it is clear that some other meaning was intended by the parties. D’Orazio v. Masciantonio, 345 Pa. 428, 432, 29 A.2d 43, 45 (1943); B.F. Goodrich Co. v. Wilson, 337 Pa. 333, 338, 10 A.2d 422, 423 (1940); Rothstein v. Aetna Insurance Co., 216 Pa.Super. 418, 423, 268 A.2d 233, 235 (1970). No provision within a contract is to be treated as surplusage or redundant if any reasonable meaning consistent with the other parts can be given to it. See: General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 168, 199 A.2d 540, 544 (1964). Moreover, legal terms of art, as well as common words of accepted usage, are not to be construed in a manner which would render contractual provisions internally inconsistent. See: Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1013 (3d Cir.1980).
      The insurance policy in the instant case was certainly intended to provide underinsurance coverage. According to the terms of the agreement, the definition of underinsured motor vehicles was subsumed in the definition of uninsured motor vehicles. To conclude that the policy does not define underinsurance merely because it fails to contain a separate definitional section for “underinsured motor vehicles," would not only be contrary to the expressed intent of the parties, but would make meaningless surplusage of subsections (b) and (c) and of the contractual provision which states: "The term uninsured motor vehicle also includes an underinsured motor vehicle.” By looking to the definitional provision for uninsured motor vehicles to ascertain the meaning of the term "underinsured motor vehicle," we are able to interpret the contractual provisions of Part 6 with internal consistency.

      . The trial court also denied recovery on the grounds that'Sparler had settled with the third party tortfeasor without Fireman’s consent. Such consent was required by a clause in the policy which provided: "We do not cover ... (d) any person if that person ... settles the bodily injury claim without our written consent." In light of our disposition of this case, we need not review the propriety of the court’s determination of this issue. We observe, however, that the trial court was not asked by the parties in the action for declaratory judgment to decide this issue. Moreover, the stipulation of facts fails to contain sufficient facts to permit a determination. The statement of agreed facts submitted by the parties to the trial court does not disclose whether Fireman’s consented to the third party settlement, or whether, if not, Fireman’s was prejudiced by Sparler’s settlement of his third party action for policy limits. See: Roberts v. Fireman’s Insurance Co. of Newark, 376 Pa. 99, 101 A.2d 747 (1954) (release of third party tortfeasor may discharge insurer if the release defeats or impairs insurer’s right of subrogation; a key consideration in determining liability is whether insurer had knowledge of release). See also: Bradford v. American Mutual Liability Insurance Co., 213 Pa.Super. 8, 245 A.2d 748 (1968); Murphy & Co. v. Manufacturers’ Casualty Co., 89 Pa.Super. 281 (1926).

      . The Motor Vehicle Financial Responsibility Law, enacted February 12, 1984 and effective October 1, 1984, requires that future motor vehicle liability insurance policies contain both uninsured and under-insured motorist coverage. See: 75 Pa.C.S. § 1731(a).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    521 A.2d 442
    COMMONWEALTH of Pennsylvania, Appellee, v. Herbert Edward THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1986.
    Filed Feb. 19, 1987.

      Timothy H. Knauer, West Chester, for appellant.

      Thomas J. Wagner, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence imposed following appellant’s conviction, after a trial by jury, for burglary, theft, receiving stolen property and criminal conspiracy. Appellant, Herbert Edward Thomas, asserts as error: (1) the trial judge’s decision to consolidate for trial five of the cases against him; (2) the granting of the Commonwealth’s petition to extend the time for trial and the denial of appellant’s Rule 1100 motion to dismiss; and (3) the denial of appellant’s motions for a mistrial relating to testimonial references to his involvement in other crimes.

Appellant was arrested March 13, 1980, along with several other individuals, on approximately twelve criminal complaints charging robbery, burglary, criminal conspiracy and receiving stolen property. The charges all involved burglaries and theft-related offenses allegedly perpetrated by the same group of actors within a 39-day period. As a result, nine of the informations were consolidated for trial. Appellant moved to sever the informations and his motion was granted in part, the trial court ordering two separate trials — one for informations 955, 956, 957, and 1122 of 1980 and the other for informations 958, 959, 960, 1033, and 1034 of 1980. On March 2, 1981, following a trial by jury on the latter group of informations, appellant was convicted on four of five of those informations. Thereafter, on March 19, 1981, appellant filed post-verdict motions, which were denied by the court en banc on February 8, 1985. Appellant was sentenced on February 14,1985 to a total of 14 to 35 years incarceration on the burglary, theft and receiving stolen property counts and to 20 years probation for criminal conspiracy, each sentence to be served consecutively to the others and to all other sentences previously imposed by other judges. This timely appeal followed.

Initially, we observe that appellant’s post-verdict motions were filed seven days late. See Pa.R.Crim.P. 1123(a). The trial court nevertheless acted upon and denied each motion. In Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983), we held that, even though the trial court addresses untimely post-verdict motions on their merits, the issues raised in the motions are waived. If Gregory applies, then appellant waived the issues presented in this appeal.

We are troubled, however, by our notation in Gregory that a waiver could be found because the record disclosed that “the appellant was properly informed of the necessity for filing post-verdict motions and the period in which this must be done____” Id., 309 Pa.Super. at 531 n. 3, 455 A.2d at 1211 n. 3. Instantly, neither party raised the issue of the untimeliness of appellant’s post-verdict motions. Thus, the Commonwealth did not argue that appellant waived the issues on appeal and appellant did not offer any justification for the late filing. Consequently, unlike the situation in Gregory, the record includes no evidence as to whether the trial court properly advised appellant regarding post-verdict motions in accordance with Pa.R.Crim.P. 1123(c). Under these circumstances, we refuse to find that appellant has in fact waived the questions presented in this appeal. Rather than remand for completion of the record, however, we believe it expedient to address the merits of appellant’s claims. Having done so, we find that we must affirm.

Appellant alleges first that the trial court erred when it partially denied his motion for severance of the many criminal charges against him and consolidated the instant five cases for trial. We disagree. The decision to consolidate separate indictments or informations is within the discretion of the trial judge and will be reversed only where there has been a manifest abuse of discretion or a showing of prejudice and clear injustice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718 (1981); Commonwealth v. Lasch, 464 Pa. 573, 584, 347 A.2d 690, 695 (1975); Commonwealth v. Slyman, 334 Pa. Super. 415, 437, 483 A.2d 519, 531 (1984). Consolidation of indictments or informations is encouraged whenever the needs of judicial economy will be advanced. Commonwealth v. Lasch, supra, 464 Pa. at 582, 347 A.2d at 694; Commonwealth v. Rose, 265 Pa.Super. 159, 175, 401 A.2d 1148, 1156 (1979). The policy of judicial expedience, however, must be weighed against the possibility of resultant prejudice to the defendant. Id., 265 Pa.Super. at 175, 401 A.2d at 1157.

At the time of appellant’s trial Rule 219(b) of the Pennsylvania Rules of Criminal Procedure addressed the propriety of consolidation. That rule provided that:

Two or more offenses, of any grade, other than murder, may be charged in the same indictment if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan____

Pa.R.Crim.P. 219(b). “Although the rule applies specifically to joinder of offenses, (our Supreme Court) has found it equally applicable to the consolidation for trial of separate indictments or informations.” Commonwealth v. Morris, supra, 493 Pa. at 170, 425 A.2d at 717-718.

First, we believe the offenses consolidated are “of the same or similar character” within the meaning of Rule 219(b). All of the offenses were theft-related, with four of five of the cases involving the burglary of a private home. See Commonwealth v. Lasch, supra, 464 Pa. at 583, 347 A.2d at 695 (Court found that five alleged burglaries covered by four separate indictments constituted offenses of the same or similar character as envisioned by the language of Rule 219(b)). Additionally, appellant was charged with receiving the property stolen in all but one case. Second, as will be discussed infra, we believe that the offenses are sufficiently linked to constitute part of a common scheme or plan. Accordingly, consolidation was appropriate under Rule 219(b).

Next we must analyze whether any prejudice to the appellant outweighs the policy of judicial expediency. Three types of prejudice may occur if separate offenses are joined.

These are: (1) defendant may become embarrassed or confounded in his defense; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt, when, if considered separately, it would not so find.

Commonwealth v. Peterson, 453 Pa. 187, 194, 307 A.2d 264, 267-269 (1973). Instantly, appellant bases his claim of prejudice on the second and third types listed above.

Because the perpetration of one crime is not proof of the commission of another, ordinarily, evidence of other crimes is inadmissible in the trial of a separate crime. Commonwealth v. Lasch, supra, 464 Pa. at 585-586, 347 A.2d at 696. This general rule, however, has no application “where evidence of other crimes has an independent relevance to the crime being tried....” Id., 464 Pa. at 586, 347 A.2d at 696. Accordingly, it has frequently been held that evidence of another crime is generally admissible when it tends to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design involving incidents so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial. Commonwealth v. Peterson, supra, 453 Pa. at 197-198, 307 A.2d at 269; Commonwealth v. Rhodes, 250 Pa.Super. 210, 216, 378 A.2d 901, 904 (1977).

Instantly, we conclude that the similar circumstances surrounding the five incidents bring them within the ambit of the common scheme, plan or design exception. As the trial court explained, all of the offenses were theft-related and took place within a brief span of time — 39 days. Moreover, all of the burglaries were allegedly performed by the same group of thieves operating in a similar manner.

Specifically, although defendant himself never actually entered into any of the burgled buildings, he was present and participated in the planning of every one of the crimes, with the exception of the McBride robbery. It was defendant who, upon the return of his associates to his discotheque, inventoried the goods and made arrangements to have them fenced. And, it was defendant to whom the fencing profits were paid, and who was the caretaker of the group’s money pool. (N.T. 2/27/81, 573-611).
In addition, entry to the victim’s homes in all but one of the cases was gained by breaking in a kitchen or cellar window____

Trial court opinion at 4-5 (footnotes omitted). Additionally, all five cases turned on the testimony of appellant’s former partner, Richard Falasco. These factors suggest a common scheme or design “involving incidents so related to each other that proof of one tends to prove the others.” Commonwealth v. Peterson, supra, 453 Pa. at 197, 307 A.2d at 269.

A final consideration is whether the evidence of each offense was so complex that it could not be separated in the minds of the jury. Commonwealth v. Lasch, supra, 464 Pa. at 591, 347 A.2d at 696; Commonwealth v. Rose, supra, 265 Pa.Super. at 176, 401 A.2d at 1157. In the matters at bar, there is no indication that the jury would have confused the evidence. None of the fact situations are so complex, nor are any of the incidents so intertwined as to make the jury incapable of separating the offenses. Indeed, the jury acquitted appellant of the charges arising out of one of the burglaries tried. Additionally, as observed by the trial court, “(t)he risk of prejudice was further abated by a carefully drafted verdict sheet which set forth with particularity the separate offenses and counts, both by name of the victim and by date”. Trial court opinion at 6. In view of the foregoing, we find no error in the trial court’s decision to consolidate the instant five cases for trial.

Appellant argues next that the trial court erred in granting the Commonwealth’s petition to extend and in denying appellant’s petition to dismiss pursuant to Pennsylvania’s speedy trial rule, Pa.R.Crim.P. 1100. Rule 1100(a)(2) directs that trial commence no later than 180 days from the date on which the complaint is filed. The complaints involved in the case at bar were filed on March 13, 1980. The Commonwealth, therefore, had until September 6, 1980 to bring appellant to trial. On September 3, 1980, however, the Commonwealth filed an application under Rule 1100(c) to extend the time it had to commence trial. The Commonwealth’s application was assigned for a hearing on October 8, 1980. On that date, both appellant’s counsel and the district attorney handling these cases were trying another matter involving appellant and were therefore unavailable for a Rule 1100 hearing. Additionally, for reasons set forth in the record, the Commonwealth decided that it would be most éxpedient to hold the Rule 1100 hearings on appellant’s cases pre-trial. At no time did appellant’s counsel object to proceeding in this manner. For various reasons discussed infra, trial of the instant five cases did not commence until February 24, 1981. Accordingly, the Rule 1100 hearing on these matters was held pre-trial on that date. At the conclusion of the hearing, the trial court granted the extension. We must now determine whether this extension was proper.

Our review is guided by our Supreme Court’s pronouncement in Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-1350 (1976):

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Commonwealth v. Hollingsworth, 346 Pa.Super. 199, 205-206, 499 A.2d 381, 384 (1985).

We address first Mayfield’s due diligence requirement. The burden of proving prosecutorial due diligence rests on the Commonwealth under the standard set out in Commonwealth v. Ehredt, 485 Pa. 191, 195-196, 401 A.2d 358, 360-361 (1979):

The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, supra.

Commonwealth v. Hollingsworth, supra, 346 Pa.Super. at 206, 499 A.2d at 384. Importantly, “(t)he 'due diligence’ required of (the Commonwealth) does not demand perfect viligance (sic) and punctilous (sic) care, but rather a reasonable effort.” Commonwealth v. Koonce, 511 Pa. 452, 461, 515 A.2d 543, 548 (1986), citing Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981).

Our review of the record compels a finding that the Commonwealth has met its burden of proving due diligence. Significantly, nothing in the record shows that the Commonwealth was attempting to delay bringing appellant to trial. Appellant’s preliminary hearings on these five cases were originally scheduled for March 21, 1980, along with those of some 31 other defendants involved in the alleged burglary ring. On that date, because appellant appeared without counsel, the district justice continued the hearings. The preliminary hearings were next scheduled for April 11, 1980, at which time appellant had counsel, but appellant’s counsel was unavailable because he was representing appellant at a preliminary hearing in another case which lasted the entire day. Subsequently, in order to expedite matters, the district attorney’s office took over the scheduling of all the preliminary hearings relating to the burglary ring. The record indicates that the district attorney’s office attempted to schedule appellant’s preliminary hearings several times during May of 1980, but defense counsel was unavailable. The preliminary hearings for these cases were then held on June 12, 13 and 26 of 1980.

Thereafter, at the time the assistant court administrator looked to list these cases for trial, the trial lists for the July and August sessions were full. Pursuant to a Commonwealth request for a special listing, however, appellant’s cases were listed at number 56 on the August list. The Commonwealth and appellant’s counsel then met with Judge Stively and requested that all of appellant’s cases be moved to number 1 on the August list. Judge Stively agreed to allow one of appellant’s cases to be moved up to number 1. The Commonwealth, with the agreement of appellant’s counsel, chose to try the Narbonne matter because of the seriousness of the charges and because it had been previously tried in July of 1980, ending in a mistrial. The instant cases against appellant therefore remained at number 56 and were not reached during the August session, that session being the last one prior to the September 6, 1980 run date.

The foregoing demonstrates that the delays encountered were due, not to a lack of diligence on the part of the Commonwealth, but to the unavailability of appellant and/or appellant’s counsel and to judicial delay occasioned in part by the number of cases pending against appellant. Moreover, the Commonwealth’s decision to try the Nar-bonne case involving appellant does not reflect a lack of due diligence with respect to the instant five cases. “Commonwealth v. Mayfield does not require the Commonwealth to exhaust the possibility of rearranging overcrowded dockets to accommodate the Rule 1100 run date regardless of that rearrangement’s effect on other matters.” Commonwealth v. Crowley, 502 Pa. 393, 395, 466 A.2d 1009, 1010 (1983).

Moreover, as required by Mayfield, the record reveals the causes of the judicial delay and the reasons why it could not be avoided. As discussed earlier, prior to the August 1980 trial session, the trial court allowed the Commonwealth to move one of appellant’s cases up to number 1 on the list, but refused with respect to the others. In light of testimony regarding a backlog of cases caused by shortened summer sessions and a limited number of judges as well as the high number of cases pending in the system, we find nothing improper in this refusal. See Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985). As our Supreme Court observed in Commonwealth v. Crowley, supra, 502 Pa. at 402-403, 466 A.2d at 1014:

Rule 1100 should not be construed to require Common Pleas Courts with backlogged criminal dockets to devote all their administrative and judicial resources to guarantee that every defendant is tried within the period prescribed by the Rule. It should be sufficient for the court to establish that it has devoted a reasonable amount of its resources to the criminal docket and that it scheduled the criminal trial at the earliest possible date consistent with the court’s business.

(footnote omitted).

Finally, the record demonstrates that trial was scheduled for the earliest date consistent with the court’s business. As the assistant court administrator testified, the cases at bar were listed at number 48 on the list for the session following the August term, but were not reached. Thereafter, although the trial list for the October session was already full, the court listed these cases pursuant to a Commonwealth request. Importantly, the instant cases could have been tried during this term except that appellant’s counsel was unavailable because he was involved in another trial. The record illustrates further that the cases sub judice were not reached in December, initially due to trial of another of appellant’s cases and then due to the Commonwealth’s request for continuances of appellant’s remaining cases because of the unavailability of an essential Commonwealth witness. Similarly, although the court listed these matters during January, again at the Commonwealth’s request, the Commonwealth called yet another of appellant’s cases, the trial lasting the entire second week of that session. The cases herein were then tried during the following term. In view of the foregoing, we are satisfied that the court scheduled the instant five cases for trial on the earliest date consistent with its business.

Accordingly, we find that the Commonwealth fully complied with the requirements of Mayfield and Rule 1100. The trial court therefore did not err in granting the Commonwealth’s application for an extension of time within which to commence trial.

The final issue is appellant’s claim that the trial judge erred in denying his motions for a mistrial when two of the Commonwealth’s witnesses allegedly referred to appellant’s involvement in other crimes. Appellant presents five separate requests for a mistrial for our review. Appellant’s brief at 23-29.

The decision whether to declare a mistrial is within the sound discretion of the trial judge and will not be reversed absent a flagrant abuse of that discretion. Commonwealth v. Hamm, 325 Pa.Super. 401, 412, 473 A.2d 128, 133 (1984); Commonwealth v. Seigrist, 253 Pa.Super. 411, 418, 385 A.2d 405, 408 (1978). It has long been held that “evidence of a distinct crime, except under special circumstances, is inadmissible against a defendant who is being tried for another crime, because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury’s mind.” Commonwealth v. Morris, supra, 493 Pa. at 174-175, 425 A.2d at 720. Thus, clear references to prior unrelated criminal activity warrant a mistrial. Commonwealth v. Watson, 355 Pa.Super. 160, 167, 512 A.2d 1261, 1265 (1986). Our Supreme Court made clear in Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979), however, that “(not) all references which may indicate prior criminal activity warrant reversal.” Mere “passing references” to prior criminal activity will not necessarily require reversal unless the record illustrates that prejudice resulted from the reference. Id. Moreover, prejudicial effect may be overcome by cautionary instructions or an appellate court may find that any error was harmless. Commonwealth v. Seigrist, supra, 253 Pa.Super. at 419, 385 A.2d at 409.

When the Commonwealth introduces evidence which does not directly establish appellant’s prior criminal conduct, but which is merely suggestive of it, “... the operative question is whether the jury ‘could reasonably infer from the facts presented that the accused had engaged in prior criminal acitvity.’ ” Commonwealth v. DeCampli, 243 Pa.Super. 69, 76, 364 A.2d 454, 457 (1976), citing Commonwealth v. Groce, 452 Pa. 15, 20-21, 303 A.2d 917, 919 (1973), cert. denied, 414 U.S. 975, 94 S.Ct. 290, 38 L.Ed.2d 219 (1973). Additionally, the nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. Commonwealth v. Pursell, 508 Pa. 212, 230, 495 A.2d 183, 192 (1985); Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977).

Guided by the foregoing principles, we have reviewed the testimony identified by appellant as requiring a mistrial. See appellant’s brief at 23-29. For the reasons which follow, we agree with the trial court’s disposition of each motion and therefore find no abuse of discretion. First, none of the identified references were intentionally elicited by the Commonwealth. In fact, defense counsel elicited the fifth statement which it contends is objectionable. Second, with the possible exception of the fifth remark identified, none of the statements were of such a nature as to indicate to the jury that appellant had been involved in crimes other than the offenses for which he was on trial. Appellant was on trial for charges arising out of five separate burglaries. Thus, Joy Mack’s statement that she “saw one of the people that was involved in some of the burglaries” wearing a jacket taken from one of the victim’s houses (N.T. 2/25/81, 220-221), was consistent with appellant’s involvement in the other incidents on trial, as was Richard Falasco’s statement that, in order to throw the heat away from the northern end of town, appellant directed him to call Detective Villanova and advise the detective that he might find certain stolen items at an apartment located in another area of town (N.T. 2/27/81, 678). Neither does the third reference specified (N.T. 2/27/81, 692-693), support an inference of drug activity as contended by appellant. In fact, evidence that Mr. Falasco and appellant went to North Philadelphia and sold the video tape recorder tends to show appellant’s intent to deprive the victim of the recorder, which is an element of the crime of receiving stolen property. Similarly, the fourth statement at issue, where Mr. Falasco testified that some of the gloves used were purchased by appellant (N.T. 2/27/81, 697), was directed to one of the burglaries on trial and therefore could not have reasonably supported an inference that appellant had engaged in other criminal activity. See Commonwealth v. Hamm, supra, 325 Pa.Super. at 412, 473 A.2d at 134 (Trial court did not err in denying mistrial where prosecutor’s question about the use of gloves was directed only to the night of one of the burglaries on trial). Moreover, the testimony was relevant to indicate that appellant had prior knowledge of the burglary. Lastly, the fifth comment identified, where Trooper March testified that, “at the time that the disco was inspected, nothing from these particular crimes was identified” (N.T. 2/27/81, 707), was elicited by defense counsel. See Commonwealth v. Heaton, 504 Pa. 297, 300-301, 472 A.2d 1068, 1070 (1984) (Where the allegedly objectionable testimony was given only in direct response to defense counsel’s question, defense counsel was to be held to the consequences of his choice.). Furthermore, defense counsel neither objected when the answer was stated, nor requested a cautionary instruction. Instead defense counsel waited until after he finished his cross-examination and the prosecution went through its redirect before moving for a mistrial. Finally, the record does not reflect that prejudice resulted from the reference. Under these circumstances, admission of the statement cannot justify the grant of a new trial. Accordingly, we find no abuse of discretion in the trial court’s denials of appellant’s requests for a mistrial.

Judgment of sentence affirmed.

      . As of the time of the instant trial, appellant had been tried on three of the informations.

      . Specifically, appellant was sentenced to the following: upon two of the convictions for receiving stolen property, to an aggregate term of incarceration of not fewer than four nor more than ten years; upon the convictions for burglary, to an aggregate consecutive term of incarceration of not fewer than ten nor more than twenty-five years; and upon each conspiracy conviction, to probation for consecutive periods of ten years.

      . The record contains nothing indicating that appellant requested leave to file the post-verdict motions nunc pro tunc.

        . Pa.R.Crim.P. 1123(c) provides:
      Upon the finding of guilt, the trial judge shall advise the defendant on the record: (1) of the right to file post-verdict motions and of the right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein; (2) of the time within which he must do so as set forth in paragraph (a); and (3) that only the grounds contained in such motions may be raised on appeal.

      . As we stated in Commonwealth v. Zigler, 353 Pa.Super. 168, 171 n. 1, 509 A.2d 389, 390 n. 1 (1986):
      1. The controlling law on this subject is now contained in Pennsylvania Rule of Criminal Procedure 1127 which became effective July 1, 1982. Rule 1127 provides that:
      (1) Offenses charged in separate indictments or informations may be tried together if:
      (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion.
      Pa.R.Crim.P. 1127(A)(1). Since Rule 1127 codified the already existing standard, analysis under either rule is the same.

      . One case involved the burglary of the office of Project Help.

      . Appellant has not argued in his brief that he was in any way embarrassed or confounded in his defense by the consolidation.

      . The record discloses that there were shortened trial sessions during the summer months and a limited number of judges available to try the cases listed.

      . One of appellant’s other cases, however, was moved up to number 13 at the Commonwealth’s request, and tried during that session. Following that trial, the Commonwealth and appellant’s counsel stipulated that they would not try any more of appellant’s cases during that term.

      . The case tried during December was severed at appellant’s request.

      . The Commonwealth explained that it called this case because it had been tried previously and ended in a mistrial and the January session was the last trial term within 180 days of the mistrial.

      . We note that appellant received five separate trials from July 2, 1980 through January 19, 1981.

      . As we discussed supra, evidence of prior crimes may be used to show: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other; or (5) to establish the identity of the person charged with the commission of the crime on trial. Commonwealth v. Morris, supra, 493 Pa. at 174-175, 425 A.2d at 720.


text:
    521 A.2d 451
    Robert E.J. CURRAN, Esquire, Executor of the Estate of Victor S. Panaccion, Appellant, v. STRADLEY, RONON, STEVENS & YOUNG, Appellee. Robert E.J. CURRAN, Esquire, Executor of the Estate of Victor S. Panaccion, Appellee, v. STRADLEY, RONON, STEVENS & YOUNG, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1986.
    Filed Feb. 20, 1987.

      Garland D. Cherry, Sr., Media, for appellant in No. 1085 and appellee in No. 1111.
    Edward C. Mengel, Jr., Philadelphia, for appellant in No. 1111 and appellee in No. 1085.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

Plaintiff, Victor S. Panaccion (“Panaccion”), brought a claim of legal malpractice against the defendant law firm, Stradley, Ronon, Stevens & Young (“Stradley”). After the jury returned a verdict against Stradley in the amount of $500,000.00, the trial court granted, in part, Stradley’s judgment n.o.v., reducing the verdict to $243,000.00. Both parties now appeal. We find that a new trial is required and, accordingly, vacate the order and remand the case for a new trial.

I. BACKGROUND

The seeds of this dispute were first sown in January of 1974, when Panaccion, the owner of a lumber company, entered into an agreement with Clifco Millwork (“Clifco,” the “buyer”) for the sale of the lumber company. The sale price of the business was $661,886.40, with Panaccion receiving a $100,000.00 down payment and the balance to be paid over a period of eleven years. Pursuant to the sales agreement, several certificates representing shares of stock in Clifco would be held in escrow by attorneys for both Panaccion and the buyer. After entering into the sales agreement, Panaccion secured the services of Stradley.

As of the time of settlement, the escrow agreement had not been prepared. It was agreed, however, that a member of the law firm, Herbert P. Eberharter, would prepare the escrow agreement and act as escrow agent. Stradley drafted a security agreement giving Panaccion a secured interest in the accounts receivable and the inventory of the lumber company.

The closing took place in February of 1974. In October of 1974, the buyer’s attorney informed Eberharter that a majority shareholder of Clifco had transferred the Clifco stock to another entity, Emblem Flag Company (“Emblem”). Without consulting Panaccion, Eberharter released the certificate held in escrow which represented the shares in Clifco owned by that shareholder, and substituted a certificate in the name of Emblem. Sometime after October of 1975, the remaining shareholder in Clifco died; pursuant to a buy-back agreement with the company, Clifco was required to purchase these shares. Eberharter released the remaining Clifco shares and substituted another certificate in the name of Emblem. As with the stock transfer in October of 1974, Eberharter did not first notify Panaccion. Hence, Emblem became the 100% owner of Clifco. Although Eberharter held stock powers for the certificates representing the prior owners’ interests in the Clifco stock, he failed to get stock power for the certificates issued to Emblem. Under the escrow agreement, however, Clifco could vote the shares of stock without Panaccion’s approval. In February of 1976, Emblem, the new owner of Clifco, voted to permit Clifco to sell the real estate of the lumber company to A & P Company for $243,000.00. The actual sale to A & P occurred prior to June of 1976.

In June of 1976, Panaccion learned that all of the inventory in which he had held a security interest was dissipated. Thereafter, Panaccion brought suit against Stradley and Eberharter. Panaccion asserted that Stradley, inter alia, negligently permitted settlement of the sale of the lumber business to occur without first drafting the escrow agreement; drafted the escrow agreement permitting the Clifco shareholders the right to vote the shares of stock; failed to inform him of the transfer of the shares of stock to the new entity and to explain the significance and consequences of the transfers; and failed to inform him of the need to police the assets of the lumber business, which were subject to his security interest.

The jury returned a verdict against Stradley in the amount of $500,000.00. The trial court granted, in part, Stradley’s motion for judgment n.o.v. and reduced the award to $243,000.00 (the sale price of the real estate to A & P in 1976), finding that Panaccion produced no other evidence of his loss.

Panaccion now raises two issues for our consideration: (1) whether the court used an improper standard for measuring damages when it reduced the jury award; and (2) assuming the proper standard was used, whether the court erred in setting aside a portion of the award. Stradley raises several more issues in its appeal: (1) whether the court erred in precluding the testimony of Stradley’s expert witness; (2) whether it was error to permit Panaccion’s expert witness to identify himself as a former judge; (3) whether the court erred in failing to grant a full judgment n.o.v. where there was no evidence of negligence which caused an actual loss to Panaccion; and (4) whether the court erred in failing to consider evidence which would further reduce the alleged damages.

II. JUDGMENT N.O.V.

A. The Legal Standard

Upon consideration of the denial of a motion for judgment n.o.v. our scope of review is quite narrow. Viewing the evidence in a light most favorable to the verdict winner and granting that party the benefit of all reasonable inferences, we must only determine whether the evidence was sufficient to sustain the verdict. Laniecki v. Polish Army Veterans Assoc., 331 Pa.Super. 413, 417, 480 A.2d 1101, 1103.(1984) (citations omitted).

B. Elements of a Legal Malpractice Claim

This Court recently restated the elements of a claim of legal malpractice:

1. The employment of the attorney or other basis for duty;
2. The failure of the attorney to exercise ordinary skill and knowledge; and
3. That such negligence was the proximate cause of damage to the plaintiff.
Schenkel v. Monheit, 266 Pa.Super. 396, 399, 405 A.2d 493, 494 (1979). Accord Gans v. Gray, 612 P.Supp. 608, 615 (E.D.Pa.1985); Duke & Co. v. Anderson, 275 Pa.Super. 65, 71, 418 A.2d 613, 616 (1980).

Trice v. Mozenter, 356 Pa.Super. 510, 517, 515 A.2d 10, 13 (1986). Panaccion argued and introduced evidence in support of numerous claims of negligence against Stradley, the essence of which is that the attorneys, through a series of representations, acts and inaction, failed to adequately protect his interests. As a result, Panaccion claims to have suffered a loss. Conversely, the thrust of Stradley’s argument is that Panaceion’s loss was due to the financial failure of the lumber business after the sale to Clifco, not because of any alleged negligence of the attorneys.

Unless the evidence is such that reasonable men cannot disagree, the question of whether the defendant’s conduct is the cause of the injury is one for the jury. Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 247, 465 A.2d 1231, 1234 (1983). The learned trial court specifically and thoroughly addressed the basis of several of Panaccion’s claims and, after our own review of the record, we are satisfied that the evidence was sufficient for the jury to determine the issue of liability. Accordingly, for the reasons stated by the trial court, we conclude that Stradley’s motion for judgment n.o.v. in this regard was properly denied.

Although the evidence was sufficient to support the jury’s finding of liability, the record does not support the award of damages. In order to recover in a malpractice action, the plaintiff must prove not only the negligence of the attorney, but also an actual loss resulting from that negligence. Mariscotti v. Tinari, P.C., 335 Pa.Super. 599, 601-602, 485 A.2d 56, 57 (1984) (citations omitted). Once the fact that damages occurred has been established, the jury is permitted to determine the extent of those damages. R. Mallen & V. Levitt, Legal Malpractice, Sec. 303 (2d Ed.1981). Nevertheless, the plaintiff has the burden of presenting sufficient evidence by which damages can be determined on some rational basis and other than by pure speculation or conjecture. See generally Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983).

Panaccion has demonstrated actual injury — the loss of his property rights under the sales and the escrow agreements. There is, however, absolutely no evidence in the record supporting the jury’s valuation of that loss. Panaccion presented no testimony from an accountant, financial expert or appraiser, and no financial statements or records from the business documentating the value of the assets were introduced. Indeed, Panaccion’s expert witness could not render an opinion as to the value of the assets in the fall of 1974, just months after the agreements were executed. Moreover, Panaccion’s expert testified that the full purchase price of $561,000.00 would probably not have been recovered. Panaccion’s counsel also added in closing argument that the jury would have to guess as to the value of some of the assets since there was no evidence of record on which to rely. In short, the award of $500,-000.00 is totally unsupported on the record and is contradicted by the testimony of Panaccion’s own expert witness. Thus, after reviewing the testimony and exhibits, we agree with the trial court that the only evidence of record by which his loss can be measured is the $243,000.00 paid by A & P to Clifco when the real estate was sold in 1976.

The final question for our determination is Stradley’s claim that the award of $243,000.00 should have been further reduced to account for a mortgage on the property in the sum of $150,000.00. In reducing the award, the court held there was no record evidence of the mortgage. We disagree. Testimony was introduced by the attorney for Clifco who opined as to the value of the inventory of the business and who stated that real estate was subject to a mortgage of about $150,000.00. R.R. 89a-92a. Although there was some confusion as to the effect of an objection to the testimony by counsel for Stradley, a careful reading of the notes of testimony reveals that the witness’s statement concerning the mortgage remained on the record. Thus, the amount of the mortgage should have been considered by the court in modifying the award.

III. ALLEGED TRIAL ERRORS A. Preclusion of Expert Witness

The trial court barred Stradley’s expert from testifying because the witness was not identified in response to Panac-cion’s interrogatories or in a pretrial conference statement. Stradley’s counsel explained to the court that it had arranged for a person to serve as an expert witness but, shortly before trial, that person became unavailable to testify. Stradley immediately began to search for another expert witness and, ten days prior to trial, secured the services of such a witness. The next day, Stradley notified Panaccion by telephone that it would offer the testimony of this expert witness. Panaccion’s counsel acknowledged on the record that the next day Stradley informed him by telephone of these events (N.T. 627-629). Both parties acknowledged that Stradley’s expert was not identified in the answers to Panaccion’s interrogatories and that Panac-cion’s counsel was first given a signed copy of the expert’s report on the day of trial at which Stradley called its expert to testify. Panaccion’s counsel also acknowledged, however, that he had received an unsigned copy of the expert’s report eight days prior to trial (N.T. 628). Although the parties do not dispute this sequence of events, their arguments are decidedly antagonistic. Stradley asserts that Panaccion was not prejudiced by an inability to prepare for cross-examination because the latter knew in advance of trial the identity of the expert and the substance of the testimony. Panaccion maintains that the preclusion of the expert’s testimony is mandatorily prescribed pursuant to the discovery rules.

Pursuant to the relevant discovery rule, the proponent of an expert witness is required to identify its expert witness in response to interrogatories and state the substance of the expert’s facts and opinions in a signed report or answer. Pa.R.Civ.P. 4003.5(a)(1). The failure to comply with Rule 4003.5(a)(1) is addressed in subsection (b), which provides as follows:

(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

Pa.R.Civ.P. 4003.5(b).

In the past, the effect of Rule 4003.5 has been less than clear. Prior to 1985, our Court had determined whether a witness should be precluded from testifying by examining four factors:

1. the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified;
2. the ability of that party to cure the prejudice;
3. the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court; (and)
4. bad faith of (sic) willfulness in failing to comply with the court’s order.

Sindler v. Goldman, 309 Pa.Super. 7, 15 n. 8, 454 A.2d 1054, 1058 n. 8 (1982), citing Gill v. McGraw Electric Co., 264 Pa.Super. 368, 382, 399 A.2d 1095, 1102 (1979) (en banc). See Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984) (no sanction imposed absent evidence of prejudice); Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984) (where expert was not identified in interrogatories but other party had an opportunity to take witness’ deposition and had a copy of expert’s report, no prejudice was shown and witness was permitted to testify; Royster v. McGowen Ford, Inc., 294 Pa.Super. 160, 439 A.2d 799 (1982) (remanding case for consideration in light of four factors). In 1985, however, a panel of this Court held that pursuant to the governing discovery rules, Pa.R.Civ.P. 4003.5 and Pa.R.Civ.P. 4019(i), the testimony of an undisclosed witness must be precluded absent “extenuating circumstances.” Kaminski v. Employees Mutual Casualty Co., 338 Pa.Super. 400, 407, 487 A.2d 1340, 1344 (1985). Although the Kaminski Court made clear that the preclusion of a witness’s testimony was mandatorily prescribed under the discovery rules, the Court also noted that the testimony of the undisclosed witness was precluded under the four-factor test of Sindler. Kaminski, 338 Pa.Super. at 407 n. 3, 487 A.2d at 1344 n. 3.

We acknowledge that the Kaminski decision failed to clarify the law. The effect of a Rule 4003.5 violation could vary depending upon which test — the four-factor approach of Gill and Sindler or the mandatory preclusion rule of Kaminski — was used. See Kaminski, 338 Pa.Super. at 420-21, 487 A.2d at 1352 (Del Sole, J., dissenting). Not surprisingly, the parties here each advocate an approach which would have us find in either’s favor.

Our resolution of this matter is made easier, however, given a recent pronouncement by the Supreme Court of Pennsylvania. In Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (Pa.1986), the Supreme Court followed the multi-factor or prejudice approach in reversing the trial court’s exclusion of a witness which was known to the opposing party. Specifically, the Court stated that where an expert witness has not been identified pursuant to a local or state discovery rule, “the presiding court must balance the facts and eircum-stances of each case to determine the prejudice to each party.” Feingold, 512 Pa. at 573, 517 A.2d at 1273. The Court quoted the Superior Court opinion at length, focusing upon the following factors:

(B)ad faith on the part of the party seeking to call witnesses not listed in his pretrial memorandum; see Clark v. Pa.R.R.Co., 328 F.2d 591 (2d Cir.1964), cert. denied, 377 U.S. 1006, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964); ability of the party to have discovered the witnesses earlier, see Hunt v. Pa.R.R.Co., 41 F.R.D. 349 (E.D.Pa.1967); validity of the excuse offered by the party, Thompson v. Calmar Steamship Corp., 331 F.2d 657, 662 (3d Cir.1964); willfulness of the party’s failure to comply with the court’s order, Taggart v. Vermont Transportation Co., 32 F.R.D. 587 (E.D.Pa.1963), aff'd. 325 F.2d 1022 (3d Cir.1964); the parties’ (sic) intent to mislead or confuse his adversary, Pakech v. American Export Isbrandtsen Lines, Inc., 69 F.R.D. 534 (E.D.Pa. 1976); and finally, the importance of the excluded testimony, Clark, supra. Underlying the cases to which we have adverted are these basic considerations: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of Other cases in the court, and (4) bad faith of (sic) willfulness in failing to comply with the court’s order.

Feingold, 512 Pa. at 573-574, 517 A.2d at 1273, quoting, Feingold v. SEPTA, 339 Pa.Super. 15, 21, 488 A.2d 284, 287 (1985).

We believe that Feingold is controlling in the present case. Further, after reviewing the record and the arguments of the parties, we conclude. that the Feingold factors weigh heavily in Stradley’s favor. The only claim of prejudice by Panaccion was his inability to prepare for the cross-examination of the expert witness’s background and qualifications. Although such prejudice is legitimate, we believe that Panaccion was in a position to cure that prejudice by requesting either a continuance or the opportunity to depose the witness. Panaccion was notified of the witness’s identity almost two weeks in advance of trial and could have used that time to investigate the qualifications of Stradley’s expert. During that time, Panaccion did nothing. This, we believe, mitigates any real prejudice caused by Stradley’s untimely disclosure. See Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984) (where party had thirteen days in which to investigate expert’s background, no real prejudice flowed from an untimely disclosure of expert witness’s identity and qualifications).

As for the other factors listed in Feingold, we note that Stradley’s excuse for failing to comply with the discovery rule was justified given the sudden unavailability of its original witness one week prior to trial. Further, we are unable to characterize Stradley’s conduct as willful or to say that Stradley acted in bad faith; there is simply no evidence in the record to support such claims. Nor does the record indicate that a waiver of the rule precluding the testimony would have disrupted the orderly and efficient administration of the court. Indeed, as Stradley notes, it offered the expert’s testimony in the midafternoon and there would have been little, if any, disruption of the trial to conclude the day with the expert’s direct testimony and permit Panaccion’s counsel to prepare for cross-examination of the witness the next day. Panaccion maintains, however, that Stradley can show no prejudice flowing from the preclusion of its expert given that the law firm presented other testimony in its defense. We disagree. As a result of the court’s ruling, Stradley lost the testimony of its sole expert witness. Contrary to Panaccion’s assertions, the proposed testimony was, no doubt, necessary to the development of Stradley’s defense.

In balancing the Feingold factors as they relate to each party, we conclude that the prejudice to Stradley substantially outweighs the potential prejudice to Panaccion. See Feingold, 339 Pa.Super. 15, 488 A.2d 284 (1985) (despite noncompliance with discovery rule, witness should be permitted to testify where opponent had knowledge of the substance of the testimony and could show no prejudice); Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984) (where opponent was not properly informed of proponent’s expert witness until three days prior to trial and did not receive the expert’s qualifications until the day the expert was called to testify, the witness could testify absent a showing of real prejudice flowing from the untimely disclosure). Accordingly, Stradley has demonstrated that a basis exists for the grant of a new trial.

A finding of substantial prejudice does not, however, automatically render the judgment a nullity. A new trial will not be granted unless it can be shown that the excluded evidence would have affected the verdict. Kremer v. Janet Fleisher Gallery, Inc., 320 Pa.Super. 384, 388, 467 A.2d 377, 379 (1983) (en banc). In the present case, the testimony of Stradley’s proposed expert witness could have affected the jury’s verdict. Stradley’s entire case was based upon the testimony of two witnesses — an attorney with the firm whose alleged negligence gave rise to this case, and its proposed expert witness who was precluded from testifying. Contrary to Panaccion’s assertions, the defendant-attorney did not testify as an expert. His testimony was directed toward explaining and defending the actions of his firm (N.T. 562-564). The testimony of the expert witness would have been the only opinion evidence proffered by Stradley. In a case as complex as this, the expert’s testimony was not only relevant to the issues of liability and damages, but also was crucial to Stradley’s defense. It is not unlikely that the expert witness’s testimony might have resulted in a different verdict. Thus, the preclusion of the expert testimony was error which, in our opinion, justifies the remedy of a new trial.

B. Alleged Prejudice Due to Expert Witness’s Background

Stradley also contends that the trial court erred in permitting Panaccion’s expert witness to identify himself before the jury as a former judge of the Court of Common Pleas of Pennsylvania. The thrust of Stradley’s argument is that the witness’s experience as a judge was totally irrelevant to his expertise in the case; hence, the only possible effect of the testimony was to prejudice the jury.

Stradley’s argument would have us presume that the jury found the witness’s testimony credible merely because he was a former judge. We decline to accept such a far-reaching presumption.

The question of whether to exclude or admit evidence is one within the discretion of the trial court. Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 22, 473 A.2d 584, 588 (1984). “A trial court may properly exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury.” Id. Evidence is prejudicial not where it merely hurts a party’s case, but where it tends to fix a decision which has an improper basis in the minds of the jury. Id.

Contrary to Stradley’s assertion, we agree with the trial court that the witness’s background and experience was relevant in establishing his qualifications to testify as an expert. The witness was not called to testify as a judge; he testified as a practicing attorney who could best render an opinion as to the cause and extent of Panaccion’s loss. Having the witness relate that, for a brief time, he served on the bench merely gave the jury a comprehensive view of his legal background since graduating from law school. We find no undue prejudice in this statement.

Further, Stradley was given ample opportunity and, indeed, did cross-examine the witness regarding his qualifications. In particular, Stradley elicited that this witness was appointed, not elected, to the court for a term of only twenty-six months (over the course of a career which spanned thirty years), and that he was defeated when he ran for election. The witness also stated that he had never presided in a malpractice case and had never before testified as an expert witness (N.T. 461). In addition, the court prohibited Panaccion’s counsel from referring to the witness as “Judge,” and instructed the jury to give weight only to such expert testimony which was supported by the facts and deemed worthy of belief.

In short, the court weighed the probative value of disclosing the witness’s background with the prejudice, if any, attendant to such information. We cannot say that the court abused its discretion by admitting such testimony. Accordingly, we find that this claim of error does not warrant the grant of a new trial.

The order of the trial court is vacated and the case is remanded for a new trial. Jurisdiction is relinquished.

      . Suit was brought against Eberharter in his capacity as the escrow agent. After the jury rendered a verdict against Eberharter in the amount of $548,000.00, the trial court granted his motion for judgment n.o.v. The cross appeal of Panaccion and Eberharter is addressed in a separate opinion.

      . There were 1,000 shares of Clifco stock issued and outstanding, 800 shares in the name of Yerger and 200 in the name of Sullivan. Yerger also held a majority interest in Emblem.

      . Although the trial court stated that Stradley’s motion for judgment n.o.v. was granted in part, the reduction of the jury award is more properly characterized as a remittitur or a modification of the verdict. See generally, Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983). Because the modification in no way altered a finding of liability, Stradley’s motion for judgment n.o.v. was, in effect, denied.

      . The trial court noted that Panaccion presented evidence of not less than six acts of negligence by Stradley.

      . Because a new trial is warranted on the issue of liability, see supra, Part III, we address the alleged errors regarding damages. See generally, Kremer v. Janet Fleisher Gallery, Inc., 320 Pa.Super. 384, 392, 467 A.2d 377, 381 (1983) (en banc) (where ground for new trial exists, court need not address remaining errors unless (1) the alleged errors could be repeated on retrial, or (2) the alleged errors present a novel issue of law).

      . The question here is not whether damages are remote or speculative, see Duke, supra, but rather, whether the claim for damages can be liquidated.

      . This Court is not holding that such expert testimony is always required. In this case, Panaccion presented very little concrete evidence to support his claim for damages.

      . Pa.R.Civ.P. 4019(i) provides:
      (i) A witness whose identity has not been revealed as provided in this chapter shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

      . The court reasoned that it was appropriate to use the four-factor approach of Gill prior to the effective date (April 16, 1979) of Pa.R. Civ.P. 4019(i). Kaminski, 338 Pa.Super. at 407 n. 3, 487 A.2d at 1344 n. 3. We note, however, that since its adoption, Rule 4019(i) has not been uniformly applied. See e.g., Sindler, supra, and Kemp, supra.

      . The court did not consider the applicability of the sanction provision, Pa.R.Civ.P. 4019(i), nor did the court cite any of this Court's decisions which followed the rule of mandatory preclusion.

      . Although Panaccion argued before the trial court that he was prejudiced by the inability to cross-examine the proposed witness on the basis of qualifications and background (N.T. 628), Panaccion makes no claim before this Court that he would have been prejudiced by the testimony.

      . The record indicates that after the court sustained Panaccion’s objection to the testimony, Stradley read a page of deposition testimony into evidence. Immediately thereafter, the jury was discharged for the day.

      . We stress that our holding is based upon the guidelines relevant to the Supreme Court's disposition in Feingold. We render no opinion as to the applicability of either the exception to the mandate of Rule 4003.5 where "extenuating circumstances" are present, or the sanction provision, Pa.R.Civ.P. 4019(i).

      . The defendant-attorney did not testify in lieu of Stradley’s expert witness. The record indicates that this witness testified prior to the time the expert was called to testify and, thus, could not have anticipated the court’s ruling. After examining the record, we are convinced that the testimony of this witness was not opinionated.