author: DEL SOLE, Judge: BROSKY, Judge,

text:
    592 A.2d 1349
    GENERAL EQUIPMENT MANUFACTURERS, Appellee, v. WESTFIELD INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1991.
    Filed June 20, 1991.
    James R. Cooney, Pittsburgh, for appellant.
    Thomas H. Welsh, Pittsburgh, for appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   DEL SOLE, Judge:

This appeal results from a jury verdict in favor of General Equipment Manufacturers, Inc. [Gem] which sued West-field Insurance Co., [Westfield], which is the surety on the bond of Coco Bros. [Coco], a general contractor. The jury awarded $78,486.00 to Gem to which was added interest.

Gem brought this action on the unpaid amount on it’s contract with Coco, which was engaged by the School Board of Pittsburgh to renovate the Oliver High School. Coco employed a number of subcontractors, including Gem, on this project. In late March or early April of 1987, the Board dismissed Coco as general contractor, which was binding on the sub-contractors, who could proceed no further in completing the renovations. The entire contract between Gem and Coco was worth $240,000.00, and prior to the time Coco was terminated, Gem had billed Coco in the sum of $106,-552.00 for work and materials provided to the project. $28,065 had been paid to Gem by Coco, leaving a balance of $78,486.00 unpaid.

On appeal, Westfield raises seven issues for our consideration. Most of these argue that Gem failed to make out a case for payment of the balance submitted, and that certain evidence and defenses were erroneously excluded from consideration by the jury. The jury found for Gem, and the trial court, in its opinion and order, following post-trial motions, held that, “it was simply a matter of whether Gem did the work for which it seeks payment.” Westfield, in contrast, invokes general principles of contract law, and claims certain defenses based on these same principles. Gem, however, argues that the language of the surety bond issued by Westfield for Coco is determinative of the surety’s obligation, and they cite the following language, from the surety bond:

Every person, firm, or partnership, association or corporation who, whether as subcontractor or other furnished materials or supplied or performed labor or furnished machinery for use in the prosecution of the work provided, and who has not been paid therefor, may sue on this bond in accordance with the provisions of [the] School Code of 1949, as amended and/or (b) the Public Works Contractor’s Bond Law of 1967 ...

Thus, Westfield’s surety bond incorporates Pennsylvania’s Public Works Contractors’ Bond Law and the bond requirements of the School Code of 1949, and the proof required for payment, and the defenses available to West-field, are thus determined by interpreting the provisions of these Commonwealth statutes. 8 Pa.S.A. § 194 states in pertinent part:

[A]ny claimant who has performed labor or furnished material in the prosecution of the work provided for in any contract for which a payment bond has been given ... and who has not been paid in full therefore ... may bring an action in assumpsit to recover any amount due him for such labor or material, and may prosecute such action to final judgment and have execution on the judgment. 8 Pa.S.A. § 194(a)

Because the instant appeal raises an issue involving the interpretation and application of statutes which regulates the affairs of a political subdivision, namely the School Board, we find that it is appropriate to transfer this case to the jurisdiction of the Commonwealth Court.

The applicable section of the Judicial Code which establishes the jurisdiction of the Commonwealth Court provides:

§ 762 Appeals from the Courts of Common Pleas (a) General Rule.—Except as provided in subsection (v), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(4) Local government civil and criminal matters.—
(i) All actions or proceedings ... where is drawn in question the application, interpretation or enforcement of any:
(A) statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or the officers, employees or agents thereof ... 42 Pa.C.A. § 762(a)(4)(i)(A) [Emphasis added].

In United Plate Glass v. Metal Trims Industries, 351 Pa.Super. 225, 505 A.2d 613, 616 (1986), where the issue concerned the statute of limitations of a payment bond which was issued in conformance with the Public Works Bond Law, we transferred the case to the Commonwealth Court. See also, Valley Forge Industries v. Armand Cons., 248 Pa.Super. 53, 374 A.2d 1312 (1977). We held that:

the division of labor between this court and our sister court would be served rather than disrupted if the Commonwealth Court heard all appeals involving the application and interpretation of the Pennsylvania Public Work Contractors’ Bond Law. Id., 505 A.2d at 616.

Furthermore, in an earlier case where the parties were Coco Brothers, Inc. and the Board of Education, and the same construction project was in dispute, we again transferred the case to the Commonwealth Court. In this case the issue was whether the School Board properly offset various arbitration awards against each other. We held that 53 P.S. § 7232-7234 regulated the affairs of the school district in this matter, and when they were called in to question, it was for the Commonwealth Court to determine its merits. Coco Bros, Inc. v. Board of Public Education of the School District of Pittsburgh, 383 Pa.Super. 29, 556 A.2d 412 (1989).

We have held that in order to guard against the possibility that two inconsistent lines of interpretation might develop between the two courts concerning the statute of limitations of the Public Works Contractors’ Bond Law, it was best to transfer the case to Commonwealth Court, United Plate Glass, supra., 505 A.2d at 616. Similarly, here, in order to avoid any inconsistencies in interpretation of the Bond Law and the Public School Code as it concerns the proof of the payment owed, the evidence admissible, and the defenses allowed, this case should be transferred to the Commonwealth Court.

Case transferred to Commonwealth Court.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting.

Because I conclude that this court can properly exercise its jurisdiction over this appeal, I cannot join in the majority’s decision to transfer this case to the Commonwealth Court. Therefore, I must respectfully dissent.

Neither of the parties has objected to the exercise of jurisdiction by this court. Consequently, our jurisdiction has been perfected and this court may address the merits of this appeal even though exclusive jurisdiction is vested in another appellate court. See 42 Pa.C.S.A. § 704(a) and Pa.R.A.P., Rule 741(a), 42 Pa.C.S.A. In such cases, this court can exercise its discretion in determining whether the case should be transferred or decided on its merits. See Newman v. Thorn, 359 Pa.Super. 274, 280, 518 A.2d 1231, 1233 (1986). See also, 42 Pa.C.S.A. § 705 and Pa.R.A.P., Rule 752(a) (which permit this court to consider transferring an appear on its own motion or upon the motion of any party).

In considering whether to retain jurisdiction, this court has indicated that the interests of the parties and matters of judicial economy must be balanced against other factors which include: (1) whether our retention of jurisdiction will disrupt the “legislatively ordained division of labor” between the intermediate appellate courts; and (2) whether there is a possibility of establishing two conflicting lines of authority on a particular subject.” Newman, 359 Pa.Super. at 281, 518 A.2d at 1235. Moreover, each potential transfer must be evaluated on a case-by-case basis. Id.

Evaluation of these factors leads me to conclude that we should retain jurisdiction and address the merits of this appeal. The parties in this case have filed briefs and have presented this court with argument on their respective positions. Consequently, the parties will be subjected to additional expense and delay if the appeal is transferred.

More importantly, retention of jurisdiction in this case would not lead to a disruption in the division of labor between the appellate courts. Pursuant to 42 Pa.C.S.A. § 762 of the Judicial Code, the Commonwealth Court has exclusive jurisdiction over cases which involve the application, interpretation or enforcement of any statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employees or agents thereof acting in their official capacity. See 42 Pa.C.S.A. § 762(a)(4)(i)(A). The statute applicable to this case is found at 8 P.S. § 194(a), which governs actions on payment bonds. Nothing in this provision regulates the affairs of the school district in this case. In fact, the school district is not a party to this action and will not be affected by the ultimate resolution of this appeal.

Further, application and interpretation of this statute will not lead to conflicting lines of authority. Essentially, 8 P.S. § 194(a) permits claimants, who have supplied labor or materials to a subcontractor or contractor on a public improvement project and who have not been paid therefor, to maintain an action on the payment bond furnished by the contractor. Thus, application of this statute requires a claimant to establish: (1) that labor and/or materials were furnished by the claimant on a public improvement project; and (2) that the claimant has not received payment for the services or materials which were supplied. There is nothing ambiguous in the statute which requires an analysis of legislative intent or statutory interpretation. Rather, the only matters to be decided under the statute are whether a claimant has proved the elements of his cause of action by sufficient evidence.

It should be observed that this court has proceeded to address similar questions which were presented in appeals involving actions on payment bonds brought under the Public Works Contractors’ Bond Law (PWCBL), 8 P.S. §§ 191-202. For example, this court addressed the question of whether the claimant’s action was brought within the statute of limitations period prescribed in the PWCBL, 8 P.S. § 197(b) in Lehigh Electrical Products Co., Inc. v. Pennsylvania National Mutual Casualty Insurance Co., 257 Pa.Super. 198, 201, 390 A.2d 781, 782 (1978). In Posh Construction, Inc. v. Simmons & Greer, Inc., 292 Pa.Super. 142, 436 A.2d 1192 (1981), this court determined that the evidence was sufficient to sustain a finding that a subcontractor was a proper claimant under § 194(b) of the PWCBL. Id., 292 Pa.Super. at 148, 436 A.2d at 1194-1195. This court has also considered whether a surety waived the statute of limitations defense by failing to raise it in its answer and new matter, and whether the claimant was entitled to recover the costs of labor and materials which had been supplied prior to the date of issuance of the payment bond. See Solomon v. A. Julian, Inc., 304 Pa.Super. 119, 124, 450 A.2d 130, 132-133 (1982). In Reliance Universal Inc. of Ohio v. Ernest Renda Contracting Co., Inc., 308 Pa.Super. 98, 454 A.2d 39 (1982) this court concluded that service charges are not recoverable as part of the costs of labor and materials in an action to recover on a payment bond. Id., 308 Pa.Super. at 108-110, 454 A.2d at 44-45. And in a more recent case, this court found that a surety was not responsible for costs or damages resulting from delay in an action on a payment bond. Salvino Steel v. Fletcher & Sons, Inc., 398 Pa.Super. 86, 92, 580 A.2d 853, 856 (1990).

As demonstrated by the above cases, this court has proceeded to address a variety of questions arising under the PWCBL. In comparing the issues raised by appellant with the previous decisions of this court, it is evident that this case does not involve matters which will lead to the development of conflicting lines of authority because the issues raised here relate solely to evidentiary matters with which this court is familiar. Further, our resolution of appellant’s claims will not cause a disruption in the distribution of labor between this court and the Commonwealth Court, as the statute at issue here does not regulate or affect the affairs of the school district. Rather, the statute only governs appellee’s ability to recover on the payment bond. Consideration of these factors, as well as the delay and expense which would be caused if the appeal is transferred, require this court to retain jurisdiction and decide the appeal on its merits.

      . The Dissent argues that there is nothing ambiguous in the language of the statute requiring interpretation by the Commonwealth Court. We agree that there is no ambiguity, but only because the statute completely omits any reference to the defenses available to the surety, or the evidence sufficient to show proof of costs, the very issues raised in this appeal. Therefore, on these issues where there is no settled law, the courts must construe the statutes in question in order to decide the questions presented. As we said, en banc, in Valley Forge Industries v. Armand Construction, Inc., 248 Pa.Super. 53, 60-61, 374 A.2d 1312 (1977), when,
      [t]he question presented is a matter of important public policy affecting existing and future bonds on thousands of public works projects ... it would be far better for this Court to defer to the Commonwealth Court, which has been designated by the legislature as the appropriate forum for resolving disputes arising out of an interpretation of statutes regulating the affairs of local governments and agencies, at least until the law becomes settled in this particular area.

      . Although the majority agrees that the statute is unambiguous, it suggests that the statute would necessarily have to be interpreted because there is no settled law on this issue. Majority opinion, ante, at n. 1. Contrary to the majority's assertion, there is an existing body of suretyship law which establishes the defenses available to a surety. There is no reason why such law should be deemed inapplicable to a public works bond, as the essential nature of a surety’s obligations remains constant. Similar authority exists in ascertaining whether the evidence produced by a party is sufficient to establish the elements of a cause of action. Again, the standard used in determining whether the evidence is sufficient to establish the elements of a cause of action does not vary from case-to-case.
      The majority also relies on Valley Forge Industries v. Armand Construction, Inc., 248 Pa.Super. 53, 374 A.2d 1312 (1977) in support of its position. Since Valley Forge was decided, this court has steadily retreated from the views expressed therein and has repeatedly proceeded to address the types of issues presented by this case. See: Lehigh Electrical Products Co., Inc. v. Pennsylvania National Mutual Casualty Insurance Co.; Posh Construction, Inc. v. Simmons & Greer, Inc.; Solomon v. A. Julian, Inc.; Reliance Universal Inc. of Ohio v. Ernest Renda Construction Co., Inc.; and Salvino Steel v. Fletcher & Sons, Inc., all of which are discussed above. In fact, virtually the same panel members who presided in Valley Forge also decided Lehigh, in which this court proceeded to address the merits of the appeal instead of transferring the case to the Commonwealth Court as was done in Valley Forge. In view of the abrupt change in positions during the time that Valley Forge and Lehigh was decided, as well as this court’s continued retention of cases involving claims brought under the Public Works Contractors' Bond Law, it would appear that Valley Forge has been overruled sub silentio by this court.

      . 8 P.S. § 197(b) was subsequently repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[1413], effective June 27, 1978, 42 Pa.C.S.A. § 5523(3).

      . In support of its assertion that the statute in this case regulates the affairs of the school board, the majority relies, in part upon a prior decision of this court which also involved Coco Brothers. See Coco Brothers., Inc. v. The Board of Public Education of the School District of Pittsburgh, 383 Pa.Super. 29, 556 A.2d 412 (1989). This decision is distinguishable from the case sub judice. First, the statute in Coco was not the PWCBL. Rather, Coco involved the application of 53 P.S. § 7232, which authorized a particular procedure for offsetting a school district’s obligations against any claims made against the school district. Id., 383 Pa.Super. at 31, 556 A.2d at 413. More importantly, the school district was a party in Coco. Therefore, any action or resolution of the case would have directly affected the affairs of the school district. Unlike Coco, the school district in this case is not a party and will not be affected by the outcome of this appeal.

      . After reviewing appellant's assertions of error, I would affirm the judgment entered in favor of appellee.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    592 A.2d 1353
    THOMAS H. ROSS INC. v. Howard A. SEIGFREID t/d/b/a Howard A. Seigfreid Excavating, Appellant. THOMAS H. ROSS INC., Appellant, v. Howard A. SEIGFREID t/d/b/a Howard Seigfreid Excavating.
    Superior Court of Pennsylvania.
    Argued April 16, 1991.
    Filed June 20, 1991.

      John T. Robinson, Middleburg, for appellant (at 2534) and appellee (at 2872).
    Robin S. Martin, Milton, for appellant (at 2872) and appellee (at 2534).
    Before MONTEMURO, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

Howard A. Seigfreid, t/d/b/a Howard Seigfreid Excavating (Seigfreid), and Thomas H. Ross Inc. (Ross), bring these cross-appeals from the August 29, 1990 judgment awarding both parties contract damages plus interest.

This case arose out of a series of contracts between Ross, a general contractor, and Seigfreid, a subcontractor and owner and operator of an excavating business. In his complaint, Ross alleged Seigfreid had breached two contracts related to housing projects known as Williamstown and Williams Township and requested general and liquidated damages. Seigfreid filed an answer and counterclaim requesting general damages alleging Ross’ breach of the aforesaid contracts plus an alleged breach by Ross on the contract for the project known as Pine Meadows. Subsequent to a nonjury trial, held April 8 and 9, 1987, judgment was entered for Ross in the amount of $5,671.47 plus interest on the Williamstown project; judgment for Ross in the amount of $31,711.23 plus interest on the Williams Township project; and judgment for Seigfreid in the amount of $10,241.70 plus interest on the Pine Meadows project. The amount awarded Seigfreid reflects a set-off of $8,106.25 owed to a third party covered under the indemnity provisions of the contract between the parties. The court ruled the interest on the awards would run from May 21, 1982, the date of completion of contractual obligations, to April 9, 1987, the completion of trial. Seigfried’s post-trial motions were denied by Order dated August 7, 1990, which stated the interest would be calculated as stated in the award and would also run beginning July 18, 1989, the date of the awards. The awards were reduced to judgment on August 29, 1990.

Seigfreid avers the court erred by awarding liquidated damages on the Williamstown and Williams Township projects. He also contends the court erred by setting off the claim of a third party against its finding in his favor regarding the Pine Meadows project. Finally, Seigfreid argues the court committed error by not granting his motion for judgment n.o.v.

Seigfreid contends the language of the liquidated damage clause of each contract, set forth in pertinent part below, precluded an award for liquidated damages unless his alleged omissions and Ross’ acts occurred at a time when the contract was in effect and Ross gave 24-hour written notice of his intent to declare the agreement in default.

5. In the event the Subcontractor shall at any time, when this contract is in effect, ... or shall fail to pay promptly when due all charges for labor and materials used in the performance of this contract, and/or the Subcontractor shall neglect to perform the work properly or shall fail to perform any provisions of this contract, ... or any other voluntary or involuntary cessation of work by the Subcontractor ... and which, in the judgment of the Contractor is causing or is likely to cause an unreasonable delay in the progress of the work to be done by the Subcontractor, the Contractor shall have the right to declare this Agreement in default after giving the Subcontractor twenty-four (24) hours written notice to the Subcontractor to make good the deficiency and after the failure of the Subcontractor to do so, may terminate the contract ... and shall finish the work by such means as he sees fit, and at the usual and prevailing price of work of this character in the community. If the unpaid balance of the contract price exceeds the expense of finishing the work, such excess shall be paid to the Subcontractor, but if such expense exceeds such unpaid balance, the Subcontractor shall pay the difference to the Contractor. Inasmuch as the injury or damage to the Contractor by reason of the failure of the performance hereunder by the Subcontractor is difficult to determine with any degree of certainty, it is agreed that in computing the expense of completing the work as above provided, there shall be added to such expense a sum equal to ten (10%) per cent of the actual money outlay for such finishing, and such amount is hereby agreed upon, fixed and determined by the parties hereto as the liquidated damages that the Contractor shall suffer by default and not by way of penalty, and that the Subcontractor agrees to pay the Contractor such excess within thirty (30) days after written demand for such excess has been made by the Contractor upon the Subcontractor____

(Defendant’s Exhibit # 1.) Seigfreid argues Ross, by failing to pay him in a timely manner, breached the Williams-town and Williams Township contracts before Seigfreid refused to return to the job. With regard to the Williams-town project, Seigfreid testified and the trial court found he was aware the excavation work was behind schedule in the fall of 1981 and was notified by Ross, by mailgram, that on October 30, 1981, another subcontractor would be hired to complete the project due to the delay. Seigfreid testified there were periods between August, 1981, and October, 1981, when his equipment was not present on the job site. He also testified he received his last monthly payment from Ross in October, 1981. Seigfreid left the job site in December, 1981, and did not return. The court concluded, inter alia, Ross did not in any way cause Seigfreid’s failure to complete the work required under the contract. Rather, the court held the evidence presented supported a finding Seigfreid first breached the contract between the parties by failing to complete the work according to schedule. We find it was proper to hire another company to do the excavation when Seigfreid failed to do so, and Ross’ claim for liquidated damages was fully supported by the contract signed by the parties. As to the Williams Township project, the court made findings and conclusions similar to those stated supra. The court made no finding Ross breached the contract by failing to pay Seigfreid in a timely fashion for work completed.

In reviewing the findings of a trial judge, the successful party is entitled to have evidence viewed in the light most favorable to him, and all evidence and proper inferences favorable to him must be taken as true and all unfavorable inferences rejected, especially where the credibility of witnesses had to be weighed by the court. Short v. Metropolitan Life Ins. Co., 339 Pa.Super. 124, 488 A.2d 341 (1985). Findings of fact of a trial judge have the force and effect of a jury verdict and, based upon the evidence, will not be disturbed on appeal unless they are manifestly erroneous. Id. at 127-128, 488 A.2d at 343. With these standards in mind, we find the court had sufficient evidence upon which to find Seigfreid, not Ross, first breached the contracts spawning this lawsuit by his dilatory, irresponsible conduct, and we will not disturb the court’s findings of fact.

This Court having found there to have been no breach by Ross, Seigfreid argues in the alternative Ross did not comply with the terms of the contract so as to enable him to demand liquidated damages. Specifically, Seigfreid contends Ross failed to introduce at trial any evidence to satisfy the contractual requirement of paragraph five, supra, necessitating written notice of an intention to declare a default and allowing appellant 24 hours to make good the deficiency.

A review of the evidence shows Seigfreid did receive notice of nonperformance with regard to the Williamstown and Williams Township projects. As stated above, Seigfreid was aware he was behind schedule and attended a meeting designed to remedy that very situation in early October, 1981. One month later, on October 31, 1981, he was informed by mailgram that another excavator would be called into the Williamstown project on November 2, 1981, due to his delay in completing the work. Despite such knowledge and notice, Seigfreid took no positive steps to complete the job in a timely fashion. Ross’ efforts to ascertain Seigfreid’s plans to complete the Williamstown project after having sent the mailgram were futile, Seigfreid having left the site in December, 1981, and having made no attempt to respond to Ross’ attempts to communicate until March, 1982. Liquidated damages were accordingly appropriate with regard to the Williamstown project.

Concerning the Williams Township project, no formal notice was sent by Ross to inform Seigfreid of his intent to claim a default. We agree with the trial court, however, that despite any alleged informality, sufficient notice was supplied to Seigfreid to allow the imposition of liquidated damages. The delay at Williams Township was discussed at the same October, 1981, meeting in which the Williamstown delays were discussed. In a letter dated October 7, 1981, Ross outlined the scheduling problems with which he was faced and also mapped a plan of action to correct the delays. Any subcontractor unable to live within the time frame set forth in the plan was to notify Ross to enable him, if need be, “to solicit other contractors.” Seigfreid testified he did not respond to the letter despite being aware the project was behind schedule. The court found Seigfreid was contacted, in vain, on more than one occasion by Ross in order to ascertain his intentions. Such obvious repeated notice by Ross, though not actual, was assuredly constructive and sufficient under the contract to notify Seigfreid of Ross’ intent to declare a default and assess liquidated damages against Seigfreid for nonperformance of contractual duties.

Finally, Seigfreid contends the liquidated damages assessed were punitive and unnecessary arguing actual damages could have easily and specifically been determined. As stated recently by our Commonwealth Court:

In determining whether a liquidated damages clause is an unenforceable penalty, one must examine the entire contract in light of its text, what it is about, the parties’ intentions, and the facility of measuring damages or lack thereof, so as to arrive at an equitable conclusion.

PennDot v. Interstate Contractors Supply Co. 130 Pa.Cmwlth. 334, 337, 568 A.2d 294, 295 (1990). Seigfreid was, or should have been, very aware of the ramifications of the liquidation clauses, having previously entered several contracts with identical provisions. Seigfreid was not, as he would have this Court believe, a naive entity dealing with the ruthless general contractor. Rather, he presented himself as a knowledgeable subcontractor who had been in the excavating business since 1966, incorporated since 1978 and, at the time of trial, working six or seven jobs for Ross. Seigfreid understood the subject matter of the contracts, and we find he intended to be bound by the documents requiring him to complete the projects by certain dates or face the imposition of liquidated damages. The damages were not a penalty but rather a consequence of Seigfreid’s default. See Finkle v. Gulf & Western Manufacturing Co., 744 F.2d 1015 (3rd Cir.1984); Doolan v. Doolan Steel Corp., 591 F.Supp. 1506 (D.C.Pa.1984), affirmed sub nom, Coutinho Caro & Co., Inc. v. Doolan, 772 F.2d 894 (3rd Cir.1985).

Seigfreid’s second general assertion of error is the court erred when it found in his favor regarding the Pine Meadows project in the amount of $18,347.95, but then set off against this amount the claim of a third party material man, who was hired to complete work Seigfreid abandoned, in the amount of $8,106.25. Seigfreid avers the court should not have found Ross was entitled to indemnification because as of the April 7, 1987 trial date, the third party had no legally enforceable claim to pursue against either party due to the running of the applicable four-year statute of limitations. This argument is without merit.

The general contractor/Ross’ right to require payment of project debts to suppliers was set forth in each subcontract:

2. The Subcontractor shall at all times indemnify and save the Contractor harmless from all claims and liens for labor performed and materials furnished on this job and from any or all damage, loss, or expense that may be incurred on this job and from any or all damage to its property or by reason of any injuries or death to its employees or third persons, or from any damage to the property that may be caused by or result from the performance of the work by the Subcontractor as outlined herein. The Subcontractor agrees, if requested by the Contractor, to furnish invoices, receipted by his material suppliers and/or subcontractors before payments are made to him.

(Defendant’s Exhibit # 1.) This indemnification provision does not require that the subcontractor and the material man engaged to complete Seigfreid’s unfinished project institute an action against either Seigfreid or Ross. Therefore, the statute of limitations argument is not pertinent. The general contractor of a job is ultimately responsible for all subcontractors, and if one subcontractor fails to pay for labor and materials furnished on the job as part of the subcontract, the general contractor must fulfill these obligations. The fact Ross had not paid the third party material man as of the commencement of the trial is of little moment. Also, as argued in Ross’ brief, disregarding the contractual aspects of the matter under consideration, Ross has a common law right to indemnification, as a party, secondarily or vicariously liable on a claim, is entitled to indemnity for any damages or losses he may be compelled to pay by reason of the conduct of a person who is primarily liable. By the use of the indemnification provision and the set off ordered by the court, the money found to be owed by Ross to Seigfreid for the Pine Meadows project merely flowed through Seigfreid’s hands to the third party rightful recipient who completed the project when Seigfreid defaulted. Based on this discussion, we find the court properly offset Seigfreid’s award in adherence to the contract between the parties.

Lastly, Seigfreid contends the trial court erred by failing to grant his motion for judgment n.o.v.

The sole duty of this Court in reviewing a denial of judgment n.o.v. is to decide whether there was sufficient evidence to sustain the verdict, while granting the verdict winner the benefit of every favorable inference reasonably to be drawn from evidence and rejecting all unfavorable testimony and inferences. Cipriani v. Sun Pipe Line Co., 393 Pa.Super. 471, 574 A.2d 706 (1990). Extensive evidence was presented at trial regarding Seigfreid’s lack of work during the periods in question and Ross’ unsuccessful attempts to win Seigfreid’s cooperation and complete the jobs in a timely manner. We conclude there was sufficient evidence to find Seigfreid breached the Williamstown and Williams Township contracts and to justify Ross’ hiring another subcontractor to complete the work. A review of the evidence and the contracts shows it was proper to assess general and liquidated damages on both projects. Also, this Court finds Ross had a right to claim as a set off against Seigfreid’s award, under the indemnity provision of the Pine Meadows contract, the $8,106.25 owed to a third party/material man. Judgment n.o.v. was properly denied.

In his cross-appeal, at 2872 Philadelphia, 1990, Ross argues the court erred by failing to assess interest on the awards in his favor for the entire period between May 21, 1982, the date of completion of the contractual obligations, and the date judgment was entered on August 29, 1990. As explained above, the court initially ordered interest be assessed at six per cent from May 21, 1982 through April 9, 1987, the final day of trial. In the August 7, 1990 Order denying post-trial motions, the court ordered interest on the Williamstown and Williams Township judgments also be assessed from the date the judgments were entered, July 18, 1989, forward. The court suspended interest from the close of trial, April 9, 1987, through the date of final judgment, July 18, 1989, reasoning to do otherwise would penalize the parties for a delay occasioned by the court.

Ross argues there is no provision in the laws of this Commonwealth for an interruption in the accrual of interest and avers he was unduly penalized both by the inordinate delay in the payment of the obligation and by the court’s ruling denying interest during the period the case awaited decision.

Seigfreid, on the other hand, contends the court erred by awarding Ross any prejudgment interest as an entitlement, arguing for such interest to be awarded the sum due and owing must have been liquidated. Black Gold Coal Corp. v. Shawville Coal Co., 730 F.2d 941 (3rd Cir.1984).

This Court finds that in contract cases, prejudgment interest is awardable as of right. Fernandez v. Levin, 519 Pa. 375, 548 A.2d 1191 (1988); Daset Min. Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584 (1984). We find there to be no statutory or case law support for the suspension of prejudgment interest during the time period between the close of trial and the rendering of a final judgment which, in this case, is more than two years. During this two-year period, Seigfreid appellant had use of the money rightfully belonging to Ross and had the opportunity to earn interest as well. Even if the delay was due to the court’s own neglect in dealing with the case in a timely fashion, it does not have the discretion to suspend the accrual of prejudgment interest on a contract action awardable as of right.

For these reasons we affirm as to case No. 02534 Philadelphia, 1990, and reverse and remand for the recalculation of interest, in accord with this Opinion, case No. 02872 Philadelphia, 1990.

Judgment affirmed in part and reversed in part.

Jurisdiction relinquished.

      . While the court used the terms judgment and verdict in its Order, the award entered by a court sitting without a jury as a result of a bench trial is properly termed a judgment, verdict being the award handed down by a jury. See Black’s Law Dictionary, 5th Edition. Further distinction must also be made between the judgment entered by the court which is not appealable until it is officially entered on the record as a final judgment after disposal of appropriate post-trial motions. Pa.R.A.P. 301(d).

      . While not applicable to this case, the recent holding in Schrock v. Albert Einstein Medical Center, 527 Pa.-, 589 A.2d 1103 (1991), interpreting Rule 238 which applies delay damages in actions for bodily injury, death or property damage, cannot be ignored as an analogue. There, the Supreme Court adopted language by the trial court which provided that where neither party was responsible for the delay, delay damages must cover the entire period until entry of judgment. The reasoning is similar to that adopted here, i.e. the amount due is capable of earning interest throughout the period and the party who was entitled to payment at the outset should have the interest for the entire period of time.


author: DEL SOLE, Judge:

text:
    592 A.2d 1360
    COMMONWEALTH of Pennsylvania, Appellee v. Keith RHODES, Appellant.
    Superior Court of Pennsylvania.
    Argued April 16, 1991.
    Filed June 20, 1991.

      James G. Stock, Asst. Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before McEWEN, DEL SOLE and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment of sentence entered following a jury trial. Appellant, Keith Rhodes, was convicted of third degree murder, aggravated assault and violating the uniform firearms act. After denying post verdict motions the trial court sentenced Appellant to an aggregate sentence of 20-40 years.

On the evening of January 5, 1988, Appellant was among several acquaintances who were planning on engaging in drug transactions. Prior to conducting their quest for drugs, they visited a number of bars. While walking in the Hill District of Pittsburgh, the group was approached by Andrew Hooper who asked them if they were looking for drugs. Appellant alleged that Anthony Harris, an acquaintance of Mr. Hooper, accused him of being a police informant and told Mr. Hooper to “take care” of Appellant. Appellant claims that he shot Mr. Hooper in self-defense as he came towards him, and then twice shot Mr. Harris as he bent over to retrieve a fallen gun. The Commonwealth presented the testimony of Mr. Hooper who stated that he and Mr. Harris were approached by Appellant as they sat in their car. Following a brief discussion between Harris and Appellant, Harris told Hooper to take care of him, (Appellant). After Hooper exited the car he claimed he was shot in the knee and then watched as Appellant chased and shot Harris twice from behind. Appellant was arrested for the murder of Harris on January 7, 1988.

On appeal, Appellant makes the following claims:

I. The trial court erred in excluding probative, relevant evidence.
II. The trial court erred in omitting required self-defense instructions and erroneously charged the jury on the elements of self defense; trial counsel was ineffective for failing to request a proper charge and in failing to object to the erroneous charge.
III. The evidence was insufficient to prove malice, the verdict was against the weight of the evidence, and trial counsel was ineffective for failing to preserve these issues.
IV. The trial court erred in refusing to instruct the jury on involuntary manslaughter.

Appellant first contends that the trial court erred in failing to permit defense counsel to cross examine a Commonwealth witness, Andrew Hooper, regarding his arrest for delivery of a controlled substance 24 hours before the shooting. The trial court would not allow this testimony because it had not yet resulted in a conviction.

The right of an individual to confront his accuser is deeply embedded in our criminal justice system. Article I, Section 9 of the Pennsylvania Constitution provides in pertinent part:

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face ...

In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), our Supreme Court stated:

... whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.

511 Pa. at 224-25, 512 A.2d at 631-32. In the present case, the only eyewitness to the shooting, Andrew Hooper, was presented by the Commonwealth. Through his testimony, the Commonwealth attempted to prove Appellant had committed the crimes charged. Defense counsel attempted during cross examination to question Mr. Hooper regarding the incident the day prior to the shooting when he made a sale of narcotics to a police officer at the same location of the shooting. Following this incident, Mr. Hooper was not charged for approximately eight months and his preliminary hearing had been postponed since then. Trial counsel indicated to the court that the arresting officer, who was present and ready to testify, was told by the district attorneys office to “let the case ride because the witness is involved as a Commonwealth witness in a homicide case.” (N.T. at 687, 7-20-89).

Appellant maintains trial counsel wanted to question Mr. Hooper about his arrest the day before the shooting to corroborate his version of the events of the fateful night, that Mr. Hooper was selling drugs, and also to reveal the potential bias of a witness who may have been receiving preferential treatment. We agree the trial court erred in denying him this opportunity. In Pennsylvania, the discretion of whether to prosecute a crime is vested with the District Attorney’s office. The fact that some eight months after the Commonwealth’s key witness had sold narcotics to a police officer, he had yet to face even a preliminary hearing, could raise a doubt in the mind of the jury as to the witness’ motivation for testifying for the Commonwealth. The trial court in the instant case held a hearing outside the jury and concluded that there was no inducement for the witness to testify. This is clearly an issue of credibility which should have been resolved by the factfinder, in this case the jury ... the question of a witness’ credibility has routinely been regarded as a decision reserved exclusively for the jury. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). As our Supreme Court stated in Evans supra:

The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased.

We find this reasoning to be persuasive. Appellant should have been afforded the opportunity to expose to the jury the potentiality of bias on the part of the Commonwealth’s witness. The jury then, would have been the final arbiter of the witness’ testimony.

The Commonwealth, citing Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981), claimed that even if its witness had been convicted for selling drugs the day before the shooting, he could not be cross-examined as to this conviction, for it would not represent crimen falsi. However, Candía concerned an attempt to use the defendant’s past criminal activities to impeach him. In the present case, trial counsel was not attempting to show that the witness had been dealing in narcotics in order to impeach him. Rather counsel was attempting to establish the possibility of bias on the part of a Commonwealth witness who, himself was facing the possibility of prosecution by the state. We hold the trial court erred in denying him this chance, and therefore, Appellant is entitled to a new trial.

In light of our finding on the above issue, it is unnecessary for us to review the remaining issues.

Judgment Reversed. Case is Remanded for a New Trial. Jurisdiction is Relinquished.


text:
    592 A.2d 1363
    COMMONWEALTH Of Pennsylvania v. Ernest R. BASINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1991.
    Filed June 20, 1991.

      John A. Stets, Public Defender, Waynesburg, for appellant.
    David P. Pollock, Dist. Atty., Waynesburg, for Com., appellee.
    Before TAMILIA, POPOVICH and MONTGOMERY, JJ.
   TAMILIA, Judge:

This is an appeal from the judgment of sentence entered following a guilty plea proceeding during which the appellant pled guilty to driving under the influence of alcohol (blood alcohol content .2), 75 Pa.C.S. § 3731(a)(1) and (a)(4). Following the plea, a presentence report was prepared and although the probation office recommended eight days incarceration, the sentencing judge entered a sentence of one to two years plus a fine of $300, a $10 emergency medical service fee, a $50 catastrophic loss fund fee and the costs of these proceedings. In addition, the court determined the sentence would be served in the County Prison of Greene County, and for each day of satisfactory prison service, there would be a reduction of one day in the sentence so that the period of incarceration could be reduced to six months based on good time. In addition, the appellant was entitled to be released to attend his employment and was required to pay $8 per day to the Greene County Jail for board and administrative costs. Following successful completion of incarceration, appellant was to be paroled with other requirements to be completed while on parole.

On appeal, appellant primarily alleges that the trial court failed to comply with the Sentencing Code, 42 Pa.C.S. § 9722, Order of probation, and section 9725, Total confinement, thereby imposing an excessive sentence which failed to consider the appellant’s prior history, his background, the evidentiary findings of this case and the potential for maintaining a stable and law abiding life in the future. A summary of the facts is essential both to our review and to evaluate the trial court’s findings and reasons given for the sentence.

The charge of driving under the influence was filed following an incident in which the appellant struck an intoxicated pedestrian with a blood alcohol level of 0.33, who apparently jumped in front of appellant’s vehicle. A coroner’s jury reviewed the matter and recommended no charges pertaining to the death be filed; accordingly, none were filed by the State Police. The presentence report, contained in the record and reviewed by this Court, presented no conflicting information concerning the occurrence of the accident and of the appellant’s account of this incident. The only witness appearing at the sentencing hearing was the adult probation officer. As stated above, the specific recommendation by the probation department was for a sentence of eight days incarceration. Three character witnesses produced by the appellant testified at length as to his good character and there was no rebuttal evidence presented by the Commonwealth. The sole charge against appellant, as indicated above, was driving under the influence, 75 Pa.C.S. § 3731. The penalty section of that statute, for a first offense, provides as follows:

§ 3731, Driving under influence of alcohol or controlled substance
(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.

The sentencing measures applicable to a defendant convicted of second degree misdemeanors are set forth in the Crimes Code, 18 Pa.C.S., as follows:

§ 1101. Fines
A person who has been convicted of an offense may be sentenced to pay a fine not exceeding:
(4) $5,000, when the conviction is of a misdemeanor of the second degree.
§ 1104. Sentence of imprisonment for misdemeanors
A person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than:
(2) Two years in the case of a misdemeanor of the second degree.

This case obviously comes within the constraints which have developed and evolved from Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), as it implicates the sentencing discretion of the trial court. We analyzed whether or not drunk driving sentences such as this come within the purview of Tuladziecki and its progeny in Commonwealth v. Morrison, 391 Pa.Super. 449, 571 A.2d 453 (1990). In Morrison, we thoroughly reviewed the evolution of the Sentencing Guidelines, the Sentencing Code and the discretion of the court in relation to sentences for drunk driving. We believe much of what has been detailed in Morrison is applicable to this case. In view of the fact this sentence far exceeds that which is normally given for a first offense under 75 Pa.C.S. § 3731, and because the Commonwealth has not contested the appellant’s attack on the sentencing discretion of the court and his right to raise the issue at this time, we believe the issue may properly be considered by this Court.

In Morrison, supra, we found the trial court did not err in imposing a nine-months to two years sentence on a defendant who pled guilty to driving under the influence when the court thoroughly justified the sentence by virtue of the prior history of the defendant and the fact his serious drinking problem seemed to have been beyond redemption and he had been drinking as recently as the day prior to sentencing. Also, in accepting the guilty plea, the court made it extremely clear to Morrison he was going to look at the case very closely and impressed on him that the maximum sentence in the case was a possibility of two years in jail and/or a $5,000 fine. The court found that because of his severe drinking problem, Morrison posed a serious-threat unless treated and that his drinking problems related to other problems delineated by the presentence report. Under the circumstances of that case and pursuant to Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), we found the trial court acted clearly within its discretion and, therefore, determined the sentence would stand.

This case can be clearly distinguished from Morrison. We have no quarrel with the trial judge’s right, pursuant to section 3731(e), to impose a sentence of one to two years in a DUI case. Because the sentencing guidelines do not apply to these cases (75 Pa.C.S. § 3731(e)(3)), however, a sentence ordered pursuant to section 3731 must comply with the provisions contained in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and in particular, as detailed in sections 9722, Order of probation, and 9725, Total confinement. What led to an apparently excessive sentence under section 3731 was the death, of the pedestrian and the paramount consideration given this factor by the court in sentencing. We are guided by Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985), in which this Court held that when an unusually severe sentence was imposed after the taking of the guilty plea, the intent of the court to inflict a maximum sentence was not indicated at the time of the plea and the offense was one which would normally bring a less severe penalty, the sentence would be subject to review. Under the circumstances of this case, giving the death of the pedestrian primary importance in sentencing, while relegating the evidentiary findings, character witnesses and the presentence reports to an insignificant role, was an abuse of discretion. In its brief, the appellant focuses on these issues in alleging the court’s abuse of discretion in imposing the sentence.

While it is not exactly on point, we can derive some insight into an appropriate sentencing rationale from Commonwealth v. Lenhart, 520 Pa. 189, 553 A.2d 909 (1989). In that case, the Supreme Court held that when there is no proof beyond a reasonable doubt that a homicide by vehicle was caused by defendant’s driving while under the influence, he could not be convicted for homicide by vehicle while driving under the influence. We believe that unless a nexus was established between the pedestrian death and driving under the influence, thereby taking this case out of the category of first offense driving under the influence, imposing a sentence of one to two years on speculation violates the principle announced by Lenhart. The court would, of course, be precluded from considering appellant for ARD as a first offender, as section 3731(d) prohibits ARD when a person, other than defendant, was killed or seriously injured as a result of the accident. This appears to be a per se rule without qualification. The sentence imposed here was equivalent to that mandated for a person convicted three times previously for driving under the influence. See section 3731(e)(l)(iv). The presentence report spoke highly of Basinger and his character and from that report it could be derived that he is unlikely to commit another crime and that he would respond affirmatively to probationary treatment unlike the situation we found in Morrison. While the trial court, in its Opinion, acknowledged the testimony of the witnesses, the presentence investigation and the arguments of counsel, the court exercised its leniency powers by reducing the time appellant must spend incarcerated from one year to six months by earning the reduction on a day for day good time basis.

As indicated above, when imprisonment is ordered, the requirement of the statute is that the imprisonment be for a definite term to be fixed by the court. 18 Pa.C.S. § 1104. Although we commend the trial court for designing a sentence which would appear to be salutary, providing incentives for the appellant to minimize the effects of incarceration by the opportunity to continue in his employment and to reduce his time through his own good behavior, such a sentence is presently unauthorized by statute. As section 1104 provides the imprisonment must be “for a definite term,” a sentence of one year to be reduced by up to six months upon certain behavior of the appellant does not comply with the statute. Additionally, under the Vehicle Code, 75 Pa.C.S. § 3731, the only work release authorized is pursuant to section 3731(h), which provides:

(h) Work release—In any case in which a person is sentenced to a period of imprisonment as a result of a conviction for violating any provision of this section, the judicial officer imposing that sentence shall consider assigning that person to a daytime work release program pursuant to which the person would be required to collect litter from public and private property, especially property which is littered with alcoholic beverage containers.

While the legislature has under serious consideration various “good time bills,” it is inappropriate for the judiciary to construct individual programs, particularly in such a volatile area as drunk driving. The courts and legislature are struggling to provide an appropriate response to what is now considered a serious national problem causing death, serious injury and loss of property to great numbers of persons in our society. Only the legislature, with its investigative and deliberation powers, can fairly determine an appropriate response to alternative sentencing. We believe it is unlikely the court would have imposed this sentence if he limited himself to the alternatives legally available to him and based on the evidence established by the record in this case. Thus we see the need to restrict trial courts to the statutory provisions of the Crimes Code and Sentencing Code, for to do otherwise compromises the criminal justice system.

The court, giving his reasons for the sentence, focused on the homicide of the pedestrian.

Further, a sentencing judge must consider the damage to society and the victim even where, as in this case, the Commonwealth chose not to prosecute for homicide by vehicle due to inconclusive evidence as to all factors leading to the death. Although the defendant testified, and this Court accepts the testimony, that the victim was on the traveled portion of the highway at the time of impact, it is not known and it will never be known as to whether the incident could have been avoided had the defendant not been driving under the influence, a concern which was stressed at the time of sentencing.

(Slip Op., Grimes, J., 1/11/91, pp. 2-3.) Here, it is clear the trial court was speculating on matters which were not of record and which had not been developed by any investigation, testimony or legal finding. See Lenhart, supra. As such, the trial court gave undue weight to that aspect of the case and gave insufficient weight to the mandate of the Sentencing Code which requires an evaluation of the factors relating to the defendant’s character and his prospects for leading an exemplary life if placed on probation.

Our finding today in no way limits a trial judge in imposing a maximum sentence when such a sentence can be justified on the record. The sound discretion of the trial judge will not be overturned by this Court when the reasons for the sentence are established on the record and the Sentencing Code or the Sentencing Guidelines, when applicable, have been properly applied. Here, as we previously stated, the sentencing report indicated appellant had no record whatsoever and no citations recorded against him by the Pennsylvania Department of Transportation. It is appellant’s first and only violation of the Motor Vehicle Code. As stated above, reputable character witnesses (unshaken by cross-examination), asserted appellant had no drinking problem, had never had any problems in the community in any respect and gave only the highest recommendations concerning him. The appellant, in his testimony, showed a great deal of remorse and his description of the accident indicated it was possibly unpreventable whether he had been drinking or not since the victim was on the traveled part of the highway at night and in dark clothing. The trial judge stated he found the appellant’s testimony completely credible and believable which indicates he had no basis for finding that the accident could have been prevented by the appellant. According to appellant’s version of the incident, which was accepted by the court, he saw the victim on the road, then the victim got off the road, and as appellant continued to travel forward, the victim jumped back in front of the car and there was nothing appellant could do to avoid the accident as there was a car coming from the other direction.

We, therefore, find that under the circumstances of this case, having thoroughly reviewed the record, including the sentencing proceedings, presentence report and other relevant reports, the court abused its discretion in entering a sentence of one year to two years and, therefore, the sentence must be revisited in light of this Opinion.

Case remanded for resentencing in accordance with this Opinion.

Jurisdiction relinquished.

      . We are aware there is some authority and opinion that probation officers should make no recommendations, although in many jurisdictions, the probation officers are called upon to prepare the sentencing guideline forms.

      . We point out that proposed amendments to the Sentencing Guidelines, promulgated in the Pennsylvania Bulletin, Vol. 21, No. 19, May 11, 1991, if not acted upon by the legislature, will be effective on August 9, 1991.
      § 303.5 Driving under the influence of alcohol or controlled substance and homicide by vehicle while driving under the influence.
      (a) When no victim suffered serious bodily injury, sentences for driving under the influence of alcohol or controlled substances are determined by application of 75 Pa.C.S. § 3731 (relating to mandatory imprisonment for driving under the influence of alcohol or controlled substance) and 42 Pa.C.S. § 9763(c) (relating to intermediate punishment for driving under the influence of alcohol or controlled substance).
      (b) When one or more victims suffered serious bodily injury, the guideline sentence recommendations (in months) for convictions under 75 Pa.C.S. § 3731 (relating to driving under the influence of alcohol or controlled substance) are as follows:
      Conviction Standard Range Aggravated Range Mitigated Range
      1st 4-6 6-8 2-4
      2nd 7-9 9-11 5-7
      3rd 9-11 11-12 7-9
      4th/ subsequent 12 12 9-12

      . The Sentencing Code has recently been amended to provide the courts with alternatives other than probation and total confinement in appropriate cases. 42 Pa.C.S. § 9763, Sentence of intermediate punishment, effective July 1, 1991. However, offenses under 75 Pa.C.S. § 3731 must be sentenced pursuant to section 3731(e). As to section 3731 driving under the influence offenses, intermediate punishment is restricted in the following fashion:
      (c) Restriction.—A defendant convicted under 75 Pa.C.S. § 3731(e) (relating to driving under the influence of alcohol or controlled substance) may only be sentenced to intermediate punishment:
      (1) in a residential inpatient program or in a residential rehabilitative center; or
      (2) by house arrest or electronic surveillance combined with drug and alcohol treatment.


author: MONTEMURO, Judge:

text:
    592 A.2d 1368
    PATRICK Mc GUIGAN ROOFING COMPANY, INC., Appellant, v. Leonard D. KALLMAN t/a LKM Associates, a General Partnership.
    Superior Court of Pennsylvania.
    Argued April 18, 1991.
    Filed June 21, 1991.

      Edward C. Bales, Philadelphia, for appellant.
    Elizabeth E. Utz, Philadelphia, for appellee.
    Before MONTEMURO, BECK and TAMILIA, JJ.
   MONTEMURO, Judge:

This is an appeal from an order sustaining appellees’ preliminary objections and striking off appellant’s mechanic’s lien claim.

Appellant is a subcontractor hired by appellees LKM Associates to install a roofing system on a building at 3200 South Lawrence Street, Philadelphia. The property is owned by Bert Lewis, Edward Kallman and Ralph Marta to whom the fictitious name LKM Associates is registered. Messrs. Lewis, Kallman and Marta also own LKM Food, Inc., which in turn owns and operates a food distribution warehouse under the name C.W. Dunnet & Co. In November of 1988, Dunnet contracted with MBR Associates, a building firm, to construct a refrigerated warehouse at the Lawrence Street address. In December, Dunnet assigned its contract to LKM, which in February of 1989 executed a waiver of liens with MBR. Appellant began the roofing job in October under agreement with MBR. However, no payment was ever made for. the work, for which approximately $30,500 is due and owing. In February of 1990, appellant filed a mechanics lien against appellees for the outstanding balance. In successful preliminary objections appellees contended that the property was exempt from lien due to the waiver. This appeal followed.

In the first of its two claims on appeal, appellant argues that issues of fact sufficient to require a determination by trial was necessary based on a misfiling of the lien waiver, of which, as a result of the filing error, appellant never properly received notice.

A preliminary objection in the nature of a demurrer is an assertion that a pleading fails to set forth a cause of action upon which relief can be granted ... The preliminary objection should be overruled if the allegations of the complaint state a cause of action under any theory of law ... When reviewing the lower court’s sustaining of a preliminary objection in the nature of a demurrer, all facts set forth in the challenged complaint must be accepted as true as well as all inferences reasonably deducible from these facts ... A case should be dismissed on preliminary objections only where the dismissal is clearly warranted and free from doubt.

Vintage Homes, Inc. v. Levin, 382 Pa.Super. 146, 154, 554 A.2d 989 (1989) (citations omitted).

The party asserting waiver of a mechanic’s lien must clearly prove its existence. Sullivan Construction Co. v. Historical Arch Street Development Associates, 364 Pa.Super. 460, 528 A.2d 248 (1987). Herein there is no dispute as to the existence of the waiver, only as to its effectiveness. Specifically, appellant insists that because there was confusion as to the exact address of the property against which the lien was filed, the trial court improperly granted the preliminary objections.

The confusion, if in fact it exists, stems from the fact that the Location Index pages in the filing office contain listings relevant to a waiver of liens at 666 Packer Avenue rather than 3200 Lawrence St. As appellee correctly points out, however, both of the addresses are part of the same parcel of land described by the deed, and repeated in the waiver, and to which the waiver refers. As our Supreme Court has held in Trustees of C.I. Mortgage Group v. Staff of Huntington, 484 Pa. 464, 399 A.2d 386 (1979), the document barring liens must merely contain sufficient information to provide notice to the subcontractor that the building involved is in fact the one for which he supplied material and/or labor. The legal description in a deed is of such clarity.

Moreover, and more critically, 49 P.S. § 1402, provides that a waiver of liens be “indexed in the name of the contractor as defendant and the owner as plaintiff and also in the name of the contractor as plaintiff and the owner as defendant.” As appellant correctly points out, the responsibility to assure that the indexing is properly done devolves upon property owners, Lisk Plumbing & Heating Co., Inc. v. Schons, 283 Pa.Super. 344, 423 A.2d 1288 (1981), and any failure in this regard invalidates a waiver. Site Improvement, Inc. v. Central & Western Chester County Industrial Development Authority, 293 Pa.Super. 1, 437 A.2d 960 (1981). However, as cross-indexing by name of owner and contractor was done, the requirements of the statute were complied with; no indexing by location is necessary as the site is to be made specific in the waiver document itself. Accordingly, any putative error or confusion in this listing is immaterial, and appellant was accorded constructive notice of the existence of the waiver.

As his second issue, appellant merely reiterates the first, and in addition asserts, without providing support for his assertions, that the waiver itself was defective in various respects and that it was obtained in bad faith and for the purpose of perpetrating a fraud upon subcontractors and materialmen. The indexing issue has already been addressed and found unpersuasive, and as to appellant’s other claims, there is nothing in the record to support them. Moreover, appellant has violated the specificity of pleading requirements set by Pa.R.C.P. 1019(b), regarding fraud. We therefore find the trial court to have been correct in granting appellees’ preliminary objections, and in striking appellant’s lien claim.

Having said so much, we would also add that although the result herein is dictated by the provisions of the Mechanics’ Lien Law, 49 P.C. §§ 1101-1902, is it not similarly compelled by equity. The net effect of the Law is to allow a contractor unilaterally to dispense with the rights (particularly) of unsophisticated subcontractors to be paid for their labor. We believe that situations such as the one presented above make a clear case for legislative review and reformation of the statute, to ensure a far greater measure of fairness than now obtains.

Order affirmed.

      . The Lawrence Street building forms one quarter of the square known as 666 Packer.


text:
    592 A.2d 1370
    COMMONWEALTH of Pennsylvania v. Russell JENNINGS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1991.
    Filed June 21, 1991.
    Petition for Allowance of Appeal Denied Oct. 31, 1991.

      Robert A. Crisanti, Asst. Public Defender, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, MONTEMURO, BECK, TAMILIA, POPOVICH and HUDOCK, JJ.
   MONTEMURO, Judge:

This appeal comes before us from judgement of sentence imposed following appellant’s jury conviction on charges of rape, statutory rape, involuntary deviate sexual intercourse, terroristic threats, and corruption of minors. The sentence imposed was seven and one-half (7V2) to fifteen (15) years imprisonment. The charges stemmed from appellant’s attacks, which occurred during the period from fall of 1982 to spring of 1983, on his girlfriend’s daughter, then eleven years old. Appellant’s sexual advances to the child were accompanied by threats that if the child disclosed his conduct, appellant would kill both her and her mother.

Appellant has presented two issues for our review, the first of these, which is couched in terms of ineffective assistance of counsel, asserts that counsel was ineffective for having failed to move that the information, which the Commonwealth was permitted to file without a preliminary hearing, be quashed. Appellant also argues that his Sixth Amendment right to confront the witnesses against him was abridged when the trial court refused to allow him to question the complainant concerning her delinquency adjudications.

As to the first issue, some background is necessary. Appellant was accused of the offenses involved by criminal complaint on October 2, 1987. In February, 1988, the Commonwealth was permitted to file the information after an NEI hearing was held at which the trial court determined that the prosecution had, despite due diligence, failed to locate appellant. Appellant was arrested on other charges in April of 1988, and served while in custody with the warrant for the offenses herein. Although counsel had been appointed in August, 1988, in October and December of 1988, appellant petitioned pro se first for habeas corpus relief, and then for release on grounds of a Rule 1100 violation. At a hearing prior to trial, appellant waived his right to counsel, although the court appointed attorney was instructed to act as “standby,” and was denied the relief sought. Appellant then did, with counsel’s assistance, proceed to conduct his own defense, albeit unsuccessfully, and this counseled appeal followed.

We first reiterate the standard of review which has recently been restated by our Supreme Court.

In reviewing a claim of ineffective assistance of counsel, [t]he court must first determine whether the issue underlying the claim is of arguable merit. If the claim lacks merit, [the court’s] inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. If, however, the claim has merit, [the court] must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial.

Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990).

The claim underlying appellant’s assignment of ineffectiveness is that the trial court erred in determining the requirements of Pa.R.Crim.P. 231, which allows the Commonwealth to dispense with a preliminary hearing for good cause, to have been met. The Rule reads as follows:

(a) When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the statute of limitations will otherwise bar prosecution, an information is necessary in order to extradite the defendant, or a preliminary hearing cannot be held for other good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing.

While “there is no constitutional right, federal or state, to a preliminary hearing,” Commonwealth v. Ruza, 511 Pa. 59, 64, 511 A.2d 808 at 810 (1986), Pa.R.Crim.P. 141 provides for a preliminary hearing as protection against unlawful detention. Id., 511 Pa. at 64, 511 A.2d at 810; Commonwealth v. Lyons, 390 Pa.Super. 464, 568 A.2d 1266 (1989). Dispensation from the Rule 141 requirements is intended only where the case presents exceptional circumstances, see, Comment to Rule 231; Commonwealth v. Costello, 301 Pa.Super. 537, 448 A.2d 38 (1982), and appellant’s claim is premised on their alleged absence. He argues that the Commonwealth failed to exercise due diligence in attempting to locate him. Appellant further claims that he was prejudiced by counsel’s dereliction, because he was detained upon the information from the time of his arrest in April of 1988, until trial in 1989.

Appellant’s underlying assertion of the absence of good cause has at least superficial substance, as fugitive status alone does not constitute good cause under the rule. Commonwealth v. Ferrari, 376 Pa.Super. 307, 545 A.2d 1372 (1982); Commonwealth v. Costello, supra. Appellant, in fact, relies heavily upon Costello in insisting that redress is warranted in his case. There the court found that police efforts to locate the accused were inadequate, and that good cause to proceed without a preliminary hearing was not present.

Here, however, prior to trial, upon appellant’s claim that the lack of a preliminary hearing resulted in his wrongful detention, the trial court received evidence from the investigating officer as to the search conducted for appellant—the same evidence leading to the earlier determination that appellant was NEI. Appellant’s motion for habeas corpus was thereupon denied, thus disposing of his underlying claim, the allegation of ineffectiveness stemming therefrom, and the allegedly resultant prejudice. Moreover, and as the ultimate determinant of the fate of appellant’s claim, as this court held when presented with a nearly identical set of circumstances in Commonwealth v. Lyons, supra. “The absence of a preliminary hearing ... did not so impair the truth determining process as to require that appellant be discharged.” Id., 390 Pa.Superior Ct. at 469, 568 A.2d at 1268. Because the correctness of the procedure actually followed had been assessed unfavorably to the appellant, and because he had as well been found guilty at trial, “[a]ny deficiency in the preliminary hearing procedure, therefore, was harmless.” Id. See also, Commonwealth v. Ruza, 511 Pa. 59, 511 A.2d 808 (1986); Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980); Commonwealth v. Ferrari, supra. We see no reason to depart from this conclusion.

Next, appellant argues that because he was limited in his cross examination of the prosecutrix as to her adjudications for delinquency, he was denied his constitutional right to confront the witnesses against him.

[T]his court has consistently held that the failure to allow a criminal defendant to use a prosecution witness’ prior criminal record to establish a possible motive for giving unfavorable testimony against him violates that defendant’s right to full confrontation of that witness as provided by the Sixth Amendment of the federal constitution, Commonwealth v. Slaughter, [482 Pa. 538, 394 A.2d 453 (1978) ]; Commonwealth v. Evans, [511 Pa. 214, 512 A.2d 626 (1986)]; Commonwealth v. Grace Simmon, [521] Pa. [218,] 555 A.2d 860 (1989). These holdings are consistent with the U.S. Supreme Court’s holding in, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), interpreting the Confrontation Clause in terms of the use of a juvenile record for purposes of showing the motive or bias of a key prosecution witness.

Commonwealth v. Borders, 522 Pa. 161 at 164, 560 A.2d 758, 759-60 (1989).

In the instant case, appellant complains of the trial court’s unwillingness to allow him to cross examine the witness on crimes of which she had been adjudicated delinquent, specifically two for theft and robbery, in order to show her bias against him for having disciplined her for these offenses. This was error. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Borders, supra; Commonwealth v. Ocasio, 394 Pa.Super. 100, 574 A.2d 1165 (1990). Commonwealth v. Murphy, Pa., 591 A.2d 278 (1991).

Whether a trial error violates the federal constitution or state law, the proper standard for assessing harm is the same: “an error can be harmless only if the appellate court is convinced beyond reasonable doubt that the error is harmless.” Commonwealth v. Story, 476 Pa. 391, 405, 383 A.2d 155, 162 (1978), citing Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826-27, 17 L.Ed.2d 705 (1967).

Error is considered to be harmless where: 1) the error did not prejudice the defendant or the prejudice was de minimis or 2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or 3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Commonwealth v. Williams, 524 Pa. 404, 409, 573 A.2d 536, 539-40 (1990), citing Story, supra, 476 Pa. at 410-15, 383 A.2d at 164-66.

We are able to state without hesitation our belief that the court’s failure to allow cross examination of the victim’s juvenile adjudications was harmless error under this standard. Unlike the cases cited above in which those accused were denied all access to pertinent records, or all alternative means of introducing bias, the trial court herein stated that it would permit questioning as to the witness’ summary-convictions for shoplifting, as well as making available her entire juvenile record and a synopsis of those points it determined to be exculpatory. Appellant took no advantage of the offer in any respect. Further, the jury was made acutely aware during questioning that appellant had reported the witness for various crimes, that the witness disliked appellant intensely, that she had been in trouble at school for fighting, that she had been placed in various juvenile facilities, that there had been warrants out for her, that she stole money from her mother, and that she was sexually active and had had a child. Moreover, the witness blamed her bad behavior on appellant’s attacks, making her aversion to him even more obvious. So far from being denied a demonstration of the witness’ hostility toward appellant, of her bias or of some motive to testify falsely, the jury was fully apprised of all these possibilities. Despite the witness’ dishonesty and proclivity toward unacceptable conduct, she was found credible. It is unlikely in the extreme, that is, no reasonable doubt arises, that information concerning delinquency adjudications based on theft and robbery would have altered this conclusion, as they would merely have been cumulative of the bias evidence already introduced. Compare, Commonwealth v. Brock, 494 Pa. 290, 431 A.2d 264 (1981). This becomes especially clear given appellant’s failure to utilize those criminal episodes in the witness’ career, e.g., the shoplifting, which the trial court had supplied for impeachment purposes. We therefore find the trial court’s error in this matter to be de minimis.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3122.

      . 18 Pa.C.S.A. § 3122.

      . 18 Pa.C.S.A. § 3123(5).

      . 18 Pa.C.S.A. § 2706.

      . 18 Pa.C.S.A. § 6301.

      . Non est inventus—He is not found.

      . Although the Office of the Public Defender represents appellant in the instant appeal, as it did during pretrial proceedings, and as standby counsel during trial, we are not precluded from considering this case. Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10 (1986). (Where it is clear from the record either that counsel was ineffective, or that the claim of ineffectiveness is meritless, remand for the appointment of new counsel is not necessary.)

      . The actual habeas corpus petition did, as appellant states, request relief on grounds of a Rule 1100 violation. However, immediately prior to trial appellant repeated several times the claim that his detention had been unlawful due to the absence of a preliminary hearing. The evidence of the search received by the court was clearly directed toward determining whether the information was valid despite the lack of such a hearing, and the habeas motion was denied on that basis as well as on a finding that appellant’s speedy trial rights had not been abridged.

      . Specifically, the officer testified that he visited appellant’s residence a number of times, at varying times of day. Checks were made at the post office, where it was discovered that appellant was receiving mail at an address other the one given as his residence; visits were made to this second address also without result. Reference was had to the probation office, to the prison, and to the Bureau of Criminal Investigation. Appellant was never present, or did not answer the door at either of the addresses, and had not maintained contact with any official agency.

      . Although Lyons involved a collateral attack rather than a direct appeal, the same conclusion was reached by the panel even prior to application of the specific principles of the Post Conviction Relief Act, 42 Pa.C.S. § 9543.

      . This case was certified for en banc review on the basis that a conflict exists between Costello and Ferrari as to whether actual or only potential prejudice from the lack of a preliminary hearing need be shown before discharge becomes appropriate. As Ferrari points out, "the requirement that a defendant must show both error and prejudice to warrant relief is the general rule in criminal trials," Id., 376 Pa.Superior Ct. at 322, 545 A.2d at 1379. Our supreme court’s holding in Hess, supra, is similarly germane: “If in fact it is determined that the evidence of the Commonwealth is sufficient to be submitted to the jury, than any deficiency in the presentation before the district justice would have been harmless.” Id., 489 Pa. at 589-90, 414 A.2d at 1048. Under these circumstances a finding of potential prejudice becomes meaningless. Moreover, appellant has couched his claim in terms of ineffectiveness of counsel, for which the test involves a showing of actual prejudice stemming from counsel’s actions. Given the procedural posture of this case, even had we concluded that Costello was controlling, appellant would not have qualified for discharge; however, the prevalence of the actuality rule is conclusive. Therefore, to the extent that Costello is inconsistent with the decision in Commonwealth v. Ferrari, supra, it is overruled.

      . We note that no claim of ineffectiveness has been made as to this point. Since appellant was representing himself with counsel as backup, it is questionable whether such an allegation would be available in any event.


author: CAVANAUGH, Judge:

text:
    592 A.2d 1375
    COMMONWEALTH of Pennsylvania, Appellee, v. Leonard MINCONE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1990.
    Filed June 24, 1991.

      Rhonda Anderson Marks, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    George C. Diamantopulos, Pittsburgh, for participating party.
    Before GRILLO, President Judge, and CAVANAUGH, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

The issue in this case is whether the court below erred in refusing to grant credit to appellant, Leonard Mincone, for time voluntarily spent in an alcohol treatment program at a rehabilitation center. The court below held that this did not constitute “imprisonment” under the sentencing provisions for driving under the influence as set forth in 75 Pa.C.S. § 373l(e)(l)(ii).

The appellant, Leonard Mincone, was involved in a three-vehicle accident on April 17, 1988. He was subsequently charged with driving under the influence of alcohol under 75 Pa.C.S. § 3731(a)(1).

A pre-trial conference was held on September 8, 1988, and counsel for the appellant indicated that the appellant would enter a guilty plea. Defense counsel asked the court whether the defendant might serve his mandatory sentence under an alternative housing arrangement at the Gateway Rehabilitation Center, an alcohol treatment facility in western Pennsylvania. The court directed defense counsel to confer with the assistant district attorney assigned to that case in that regard and indicated that it customarily permitted alternative housing arrangements for the service of mandatory sentences imposed under 75 Pa.C.S. § 3731(e).

On September 26, 1988, the day set for the entry of the guilty plea, the assistant district attorney advised that the court would also charge the defendant with violating 75 Pa.C.S. § 1543(b) relating to driving a motor vehicle under license suspension or revocation related to a prior charge of driving under the influence. The appellant objected to this new charge and the guilty plea was not entered.

On the following day, September 27, 1988, unknown to defense counsel or to the court, the defendant was admitted to the Gateway Rehabilitation Center where he remained for treatment for twenty-eight days.

The appellant entered a guilty plea to all remaining charges on April 11, 1989. He was sentenced to the mandatory minimum sentence of thirty days imprisonment to be followed by ten months probation. He was also fined in the amount of $2,156.00. The appellant’s request for a twenty-eight day credit towards the thirty-day sentence was denied, as was his motion for reconsideration of sentence. He has appealed to this court from the judgment of sentence.

The court below determined that the appellant’s admission to Gateway Rehabilitation Center was voluntary and therefore, his time spent there could not be credited toward his mandatory sentence of imprisonment. In Commonwealth v. Conahan, 388 Pa.Super. 369, 565 A.2d 798 (1989), allocatur granted, 525 Pa. 576, 575 A.2d 108 (1990), we held that voluntary participation in an in-patient alcohol treatment program did not constitute imprisonment within the meaning of 75 Pa.C.S. § 3731(e). However, our decision was reversed by Commonwealth v. Conahan, 527 Pa.-, 589 A.2d 1107, (1991), Mr. Justice Larsen dissenting, which held that we erred in determining that the mandatory sentence of imprisonment for driving under the influence precluded the grant of credit for time served voluntarily in an inpatient alcohol rehabilitation facility. The court held that time served in institutionalized custody falls within the definition of “imprisonment.”

While in Conahan the Supreme Court held that voluntary presence in an institutionalized rehabilitation facility falls within the definition of “imprisonment”, it made clear that the sentencing court must exercise its discretion in determining whether credit must be given for the time spent in such an institution. The court stated at slip opinion, page ---, 589 A.2d at 1110:

Clearly, our acceptance of this type of inpatient “institutional rehabilitation” in no way entitles one accused of driving under the influence of alcohol to a credit for such rehabilitative commitment as of right. [Emphasis in original.] Rather, it is only an express approval of credits for such commitment that the sentencing court in its discretion deems to be sufficient____ It is clear that the court must sentence the offender to the mandatory minimum, Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986), but that the court in its discretion may thereafter judicially approve transfer of the offender from prison to an acceptable institution that has agreed to accept the offender for inpatient rehabilitation, or immediately after sentencing award credit for such commitment already completed. (Emphasis added.)

In the matter sub judice, the court below relying on our decision in Conahan believed it was precluded from granting credit for time voluntarily spent at Gateway Rehabilitation Center. We must therefore remand to the court below so that it may exercise its discretion in determining whether to grant credit towards the mandatory minimum sentence for the time spent at Gateway.

Order reversed and case remanded to the court below.

We relinquish jurisdiction.

      . 75 Pa.C.S. § 3731(e)(1)(H) provides:
      § 3731. Driving under influence of alcohol or controlled substance.
      (e) Penalty.—
      (1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
      (ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
      At the time of his conviction for the offense involved in this case, appellant had a prior conviction for driving under the influence of alcohol and was therefore subject to the mandatory minimum term of imprisonment of not less than 30 days.


author: HOFFMAN, Judge:

text:
    592 A.2d 1377
    Paul BRILL, Appellant, v. SYSTEMS RESOURCES, INC., Source International Corporation, Sitag Sitzmobel, GmbH.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed June 24, 1991.

      David M. Landay, Pittsburgh, for appellant.
    Stephen M. Elek, Bridgewater, for appellees.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a June 27, 1990 order denying the Motion for Post Trial Relief of appellant, Paul Brill, following a jury verdict in favor of appellee, System Resources, Inc., in a strict products liability action. Appellant argues that the trial court erred in failing to instruct the jury regarding the theory of product malfunction. For the following reasons, we agree, and, accordingly, we reverse the judgment below and remand for a new trial.

The facts underlying this appeal, summarized by the trial court, are as follows:

Plaintiff, Paul Brill, filed a civil action against Defendants, Systems Resources, Inc., Source International Corporation, and Sitag Sitzmobel, GmbH [sic], for damages arising from an incident which occurred on November 25, 1985. On that date, Plaintiff Brill was sitting in a chair distributed by Defendant Source International Corporation when, according to Plaintiff, the back of the chair broke and Mr. Brill fell to the floor and sustained serious personal injuries resulting in a limitation of his physical activities and substantial ongoing medical expenses. (Trial Transcript, March 13-15,1989, pp. 17, 36, 44-45, hereinafter referred to as T.T.)
Service of Process was perfected only on Source International Corporation, and the case went to trial against only the distributor of the chair, Source International Corporation. The complaint against Source International Corporation was based upon a claim in products liability.
The jury returned a verdict on March 15, 1989 in favor of Defendant. Plaintiff filed a Motion for Post Trial Relief seeking a new trial. For the reasons set forth [in its opinion] the Court denied Plaintiffs Motion [on June 27, 1990].

Trial Court Opinion, August 21, 1990 at 1-2. This timely appeal followed.

Appellant argues that the trial court erred in failing to instruct the jury regarding the theory of malfunction. Specifically, appellant claims that such an instruction was appropriate because there was no evidence of improper use of the chair or that the accident resulted from a reasonable secondary cause.

Our standard of review of jury instructions is well-settled:

A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury in its deliberations.

Commonwealth v. Person, 345 Pa.Super. 341, 345, 498 A.2d 432, 434 (1985). See also Commonwealth v. Bey, 249 Pa.Super. 185, 196, 375 A.2d 1304, 1310 (1977). In reviewing the court’s charge for error, we must read the charge as a whole; error will not be predicated upon an isolated excerpt, instead it is the general effect of the charge that controls. Commonwealth v. Wallace, 347 Pa.Super. 248, 256, 500 A.2d 816, 820 (1985) (citations omitted). Furthermore, if a requested point for charge is already sufficiently and adequately covered in the trial court’s jury instructions, it is not error to deny the requested point even though it may contain a correct statement of law. Thomas v. Duquesne Light Co., 376 Pa.Super. 1, 545 A.2d 289 (1988); Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985).

The charge appellant sought reads as follows:

A plaintiff in a strict liability case may prove his case merely by showing the occurrence of a malfunction of a product during normal use. The plaintiff need not prove the existence of a specific defect in the product. The plaintiff must prove three facts. He must prove that the product malfunctioned, that it was given only normal or anticipated usage prior to the accident, and that no reasonable secondary causes were responsible for the accident.

This charge is a verbatim restatement of Pennsylvania Standard Suggested Jury Instruction, Civil § 8.05 (“§ 8.05”) (emphasis in original), and the law underlying the charge has been approved by both this Court and our Supreme Court. See MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 388, 257 A.2d 676, 678 (1969) (occurrence of malfunction in absence of other identifiable causes sufficient to support finding of ‘defective condition’ for purposes of tort liability) (overruled on other grounds in REM Coal Co., Inc. v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128 (1989)); see also Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 182, 565 A.2d 751, 754 (1989) (officially accepting product malfunction theory of liability); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 329, 319 A.2d 914, 920 (1974) (plurality opinion). Thus, the instruction appellant sought contained an accurate statement of law.

The Pennsylvania Bar Institute, drafter of the instruction, has provided guidelines for determining when the instruction is appropriate:

This charge is not intended for use in every case, but only in those situations where a jury may find the absence of abnormal use and the non-existence of reasonable secondary causes ...

Id. § 8.05, subcommittee note (emphasis added).

Here, it is not disputed that the trial court’s jury charge did not cover the theory of product malfunction. The trial court reasoned that such an instruction was improper because both appellee’s expert witness and appellant himself provided evidence that abnormal use had occurred. See Trial Court Opinion, supra at 5-6. Appellant argues that the trial court’s failure to give a product malfunction instruction was reversible error. We agree. The only witnesses who testified concerning the actual breaking of the chair and appellant’s ensuing fall were appellant and Raymond Dunn, a co-worker. Appellant testified that he was leaning back normally in the chair at the time the accident occurred, see N.T. 15-19. Dunn also testified that appellant was in a normal sitting position immediately prior to the accident. Id. at 63. On the other hand, appellee’s expert, who did not witness the actual accident, opined that the accident had to have occurred as a result of abnormal use. Id. at 101. Thus, the record contains conflicting evidence regarding abnormal use. The determination of which version of events to credit, of course, was for the jury. See Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973) (credibility determinations within exclusive province of finder of fact). If the jury chose to credit appellant’s testimony, it could have found that there was no abnormal use or other reasonable secondary cause for the chair to collapse. If the jury had received a § 8.05 instruction, it could then have concluded that the chair malfunctioned. See § 8.05, supra. We therefore conclude that appellant was entitled to have the jury instructed that if it found no abnormal use, it could find that the chair malfunctioned. See § 8.05, subcommittee note, supra; MacDougall v. Ford Motor Co., supra. Because the trial court’s jury charge failed to include such an instruction, it was insufficient to properly guide the jury in its deliberations. See Commonwealth v. Person, supra. Accordingly, we vacate the judgment below and remand for a new trial.

Judgment reversed. Case remanded for trial.

Jurisdiction relinquished.

      . We note that judgment was entered upon the order on September 14, 1990.