author: VAN der VOORT, Judge:

text:
    448 A.2d 583
    Harold V. LOHMILLER, Jr. v. Joan F. Lohmiller WEIDENBAUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1981.
    Filed July 16, 1982.
    Petition for Allowance of Appeal Granted Nov. 1, 1982.

      Arthur L. Jenkins, Jr., Norristown, for appellant.
    Steven J. Proctor, Pottstown, for appellee.
    Before SPAETH, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is an appeal from an order directing that a 40% undivided interest in real property be partitioned. A multitude of pleadings have been filed and argued. We need only highlight a selected number of such filings and orders resulting therefrom.

The parties were married in August 1960. From December 1971 through January of 1975, Hazel Lohmiller, appellee’s mother proceeded to transfer to the parties, as entire-ties property, a total, undivided interest of 40% in her farm. In July 1976, the parties were divorced. On June 23, 1977, Mr. Lohmiller filed a complaint seeking a partition of the entireties property. Appellant, now known as Mrs. Weidenbaugh filed various pleadings including: a preliminary objection raising the non-joinder of an indispensable party; a counterclaim seeking the partition of the whole farm; an action in equity involving the whole parcel; and a motion to consolidate the various actions. All such motions/petitions were refused or denied. On July 31, 1980, the lower court ordered the 40% interest be partitioned and appointed a trustee to arrange a public sale and to distribute the proceeds. Appellant timely filed this appeal.

As a preliminary matter, we note that an order directing a partition of real property is interlocutory; however a party may take an appeal as a matter of right from such order. Pennsylvania Rules of Appellate Procedure, Rule 311(a)(6). Appellant raises four issues on this appeal.

I. Is the Act of May 10, 1927, as amended, pertaining to the division of entireties property after divorce, applicable to a partial interest in real estate?
The act in question, 68 P.S. § 501, in pertinent part reads:
“Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit in the Court of Common Pleas, sitting in equity, of the county where the property is situate, against the other to have the property sold and the proceeds divided between them.”

Appellant contends that the act was to apply only to fee simple interests in real estate and not to an undivided interest of 40%. She goes on to argue that if applied to a partial interest then the statute is unconstitutional as it treats divorced parties differently than other tenants in common.

The Act provides that a tenancy by the entireties is converted, upon divorce, into a tenancy in common. Either party may then seek to partition the property. In this respect, the Act is in “derogation of the common law and must be strictly construed.” Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 294, 309 A.2d 548 (1973); Barale v. Barale, 282 Pa.Superior Ct. 213, 422 A.2d 1082 (1980). We must first define “property” within the meaning of the Act. We are assisted by the Supreme Court’s decision in Blumner v. Metropolitan Life Ins. Co., 362 Pa. 7, 66 A.2d 245 (1949). There the court held that partition under the Act pertained to all property, whether real, personal or a chose in action. In reaching such conclusion the court held that the appellant’s contention, that the Act only applies when the spouses “have taken the entire title” would be adding the word “real” to the word property in the statute. 362 Pa. at 11, 66 A.2d 245. To quote the court: “The thing to be partitioned is the thing acquired by the spouses . . . . ” Id.

Applying such reasoning to the facts at hand, the thing to be partitioned under the Act was the property acquired, which was a 40% undivided interest in the tract, not the entire tract. In Blumner, the parties had acquired an agreement to purchase realty vesting them with the equitable title but not the legal title to the realty. Such interest was held partitionable. Relying on the above reasoning, we hold that an undivided 40% interest is likewise subject to partition. We find support for this proposition from other cases dealing with the Act.

The Act of May 10, 1927 provides a complete procedure to be followed (except for claims preserved under the Divorce Code of 1980) when parties who have been divorced, partition property formerly held as tenants by the entireties. Lykiardopoulos, 453 Pa. at 293, 309 A.2d 548. Looking at the Act, it provides only for a husband or wife to bring an action against his or her spouse; and not against third parties. In Reeping v. Reeping, 277 Pa.Superior Ct. 269, 419 A.2d 766 (1980), this court in a Per Curiam Opinion (Judge Spaeth filed a Concurring Opinion) found that a third party could not be joined in such action under Rule 1031 Pennsylvania Rules of Civil Procedure. Judge Spaeth, concurring, wrote that whether governed by the Act or as a result of one party’s appropriation, a third party could not be a proper party to such partition action. In the context of the present case, we agree.

Appellant then contends the Act is unconstitutional since it treats divorce tenants in common differently from other tenants in common.

When the Act was first enacted in 1925, it was applicable to estates by the entireties then existing, including estates formed prior to the enactment. This retrospective portion of the Act was found to be constitutionally invalid. In 1927, the Legislature re-enacted the Act of 1925 omitting such provision. The Act of 1925 was however held to be valid as to real estate acquired after the date of enactment, by husband and wife, as tenants by the entireties. See Christner v. Christner, 366 Pa. 41, 76 A.2d 361 (1950). While appellant’s “constitutional” attack differs from that in Christner, it nonetheless must fail, as it is without a logical and legal foundation.

The Act is, as previously noted, in derogation of the common law, Lykiardopoulos. Without the Act, there is no right to partition; upon divorce the parties interests but for the Act would remain unchanged, as tenants by the entire-ties. Mertz v. Mertz, 139 Pa.Superior Ct. 299, 302, 11 A.2d 514 (1939). Nonetheless, appellant argues that the distinction between tenancies in common resulting from divorce and those that are created otherwise is improper.

The Legislature may accord to persons placed into different classes, different treatment so long as the basis for the different treatment is related to the objective of the statute. Such classification must be reasonable and rest on a distinction having a fair and substantial relationship to the object of the legislation. Johnson v. Robison, 415 U.S. 361, 374-75, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974). The Act’s purpose is to provide for a ready, uncomplicated method for achieving some sense of economic justice upon dissolution of a marriage. We find the Act is a reasonable method for achieving such purpose.

II. Is the remaining co-tenant an indispensable party under the Act of 1927?

Appellant argues that in Pennsylvania all co-tenants must be joined as parties to the partition action. She relies on Rule 1553, Pa.R.C.P. which reads:

An action for partition may be brought by any one or more co-tenants. All other co-tenants shall be joined as defendants.
Adopted April 26, 1955, effective Nov. 1, 1955.

However as indicated in a note following the Act of 1927 (68 P.S. § 503), Rule 1553, does not suspend or affect the division of entireties’ property after a final decree of divorce. See Rule 1591(10) Pa.R.C.P. Therefore, the rules governing the partition of non-entireties real property, Rule 1551 et seq. do not apply to the current case. See GoodrichAmram 2d. § 1551:8.

III. Under the Act of 1927, may a party counterclaim for personal property held by the opposing party?

Mrs. Weidenbaugh argues that she should be permitted to counterclaim for personal property retained by the plaintiff. In her counterclaim appellant contends that appellee converted personal property owned solely by her. (Answer to Complaint, § 18)

The Supreme Court in Shoup v. Shoup, 469 Pa. 165, 171, 364 A.2d 1319 (1976) held:

Although actions in partition are brought in equity, actions for sale and division of proceeds under the Act of 1927, supra, may not be avoided by such equitable defenses as unclean hands or by restitutory claims arising in connection with the parties’ joint ownership of the property. See Lykiardopoulos v. Lykiardopoulos, supra; Hunsberger v. Bender, 407 Pa. 185, 180 A.2d 4 (1962).

We believe Shoup, and the cases on which it relies (in particular see, Lykiardopoulos, supra) are controlling here. The Act of 1927 clearly refers to the partition of property held prior to divorce as tenants by the entireties; it is not applicable to individually owned property. Therefore the lower court correctly denied appellant’s attempt to raise restitutory claims resulting from individually owned property in a partition action under the Act. See also Olivieri v. Olivieri, 242 Pa.Superior Ct. 457, 364 A.2d 361 (1976).

IV. Should the instant matter have been consolidated with appellant’s subsequent action requesting partition of the entire property?

Rule 213, Pennsylvania Rules of Civil Procedure provides:

“(a) When actions involving a common question of law or fact are pending before the court, the court on its own motion or on motion of any party may order a joint hearing or trial of any or all of the matters in issue in the actions, may order all of the actions consolidated, and may make such orders concerning proceedings therein as may avoid unnecessary costs or delay.”

The decision to consolidate actions rests within the discretion of the trial court. Balla v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955); Hamilton v. Gallo, 233 Pa.Superior Ct. 476, 334 A.2d 692 (1975). In a proper case the court should consolidate separate actions to avoid multiplicity of trials or hearings and to reduce the expense to the parties. Goodrich-Amram 2d. § 213(a): 10. Considerations of costs and the court’s backlog do not negate the requirement that the several actions contain a “common question of law or fact”.

We find no abuse of the court’s discretion in refusing to consolidate the actions. In Peterson v. Pittsburgh Public Parking Auth., 383 Pa. 383, 119 A.2d 79 (1956) consolidation was held to be proper where two plaintiffs raised in separate actions a common question of fact and law: did the plaintiffs have private rights or easements in the controverted alleys. The only question requiring separate treatment was the amount of damages. While in Bredt et al. v. Bredt, 231 Pa.Superior Ct. 65, 326 A.2d 446 (1974) an action in equity seeking to enforce a support agreement and maintain the status quo was consolidated for a hearing with a motion for enforcement filed in a support action. The actions involved the same parties and common questions of law and fact, i.e., issues concerning their agreement. Similarly in Raw et al. v. Lehnert et al., 238 Pa.Superior Ct. 324, 357 A.2d 574 (1976) consolidation of an equity and an assumpsit action was found to be appropriate. A first action was filed in equity seeking recision of a contract, punitive damages and restitution. The second action in assumpsit was commenced seeking the benefit of the bargain and damages for breach of the same contract.

In the current case consolidation would not have been appropriate. The controlling law and procedure differ. As was noted in Recktenwald v. Recktenwald, 284 Pa.Superior Ct. 185, 425 A.2d 765, 767 (1981) the “Rules of Civil Procedure [which control the partition of non-entireties property] directly conflict with the dictates of the Act of 1927 as amended.” For example, Rules 1560 and 1561 concern the divisibility and creation of purparts; divisibility is “superfluous” under the Act. Id., 284 Pa.Superior 191, 425 A.2d at 768. Rule 1553, requires all co-tenants be joined, whereas § 501 is limited to the divorced spouses. Sec, discussion of Reeping v. Reeping, infra. Rules 1555 and 1556 permit pleadings involving more than one property irrespective of the parties proportionate interest in the properties; the Act of 1927 is clearly limited to property held by the entireties. One last comparison will be sufficient to demonstrate our point. Section 503 of the Act provides for the equal division of the proceeds of the sale (less costs and any .recorded liens); Rule 1574 additionally allows attorneys’ fees to be taxed against the property or proceeds as the court finds to be equitable.

We find that the two different causes of action would travel sufficiently divergent courses; we can find no abuse of the lower court’s discretion in refusing to consolidate.

Order affirmed.

      . The transfer was accomplished over a period of four years by five different deeds.

      . The act was amended April 28, 1978, P.L. 202, No. 53, § 2(a) [1092], effective June 27, 1980. As the act, as amended, has remained substantially the same hence for purposes of this appeal we need not address the affect of the revision.

      . Rule 1031. Counterclaim
      (a) The defendant may set forth in the answer under the heading “Counterclaim” any cause of action or setoff which he has against the plaintiff at the time of filing the answer (1) which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose, or (2) which arises from contract or is quasi-contractual.
      (b) A counterclaim need not diminish or defeat the relief demanded by the plaintiff. It may demand relief exceeding in amount or different in kind from that demanded by the plaintiff. Adopted June 25, 1946, effective Jan. 1, 1947.

      . By an order of court, proceedings on Mrs. Weidenbaugh’s petition action were deferred until the resolution of Mr. Lohmiller’s action.


source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    448 A.2d 588
    Vivian SANCHEZ, by her parent and natural guardian Naida Sanchez, and Naida Sanchez, in her own right, Appellant, v. CITY OF PHILADELPHIA, North American Engines Co. and Blanche Jankuskas and Naida Sanchez, Additional Defendant.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed July 23, 1982.

      Paul Mark Perlstein, Philadelphia, for appellant.
    Mark S. Kardos, Philadelphia, for North American, et al., appellees.
    Andrew DiPiero, Jr., Assistant City Solicitor, for City of Philadelphia, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from an order denying appellant’s petition to amend her complaint on the ground that the amendment would plead a new cause of action after the statute of limitations had run. Appellant argues that the amendment would only amplify the original cause of action. We do not agree, and therefore affirm.

The accident out of which this case arises occurred on July 26, 1976. This action was commenced on July 6, 1978, by writ of summons, Pa.R.C.P. 1007(1), and the complaint was filed on November 9, 1978.

The first count of the complaint sought damages for appellant’s minor daughter, Vivian. It was alleged that appellee Blanche Jankuskas, acting in the course of her employment, had been driving an automobile owned by appellee North American Engines Company and had collided with an automobile in which Vivian had been a passenger. Various acts of negligence on the part of Blanche Jankuskas were alleged; the negligence of appellee City of Philadelphia was alleged to have been its failure to maintain the traffic signals at the intersection where the accident occurred. It was also alleged that as a result of the accident, Vivian sustained serious injuries, for which she had been or would be obliged to undergo medical treatment, and that she might suffer a loss of earning capacity.

The second count of the complaint sought certain specific damages for appellant herself. It incorporated all of the first count, and then alleged that as Vivian’s mother, appellant had incurred and might continue to incur medical expenses for Vivian’s care, and also, that appellant would suffer financial injury if Vivian’s earnings, to which appellant would be entitled during Vivian’s minority, were impaired.

The writ of summons had tolled the statute of limitations, Galbraith v. Gahagen, 415 Pa. 500, 204 A.2d 251 (1964), and two years later, on July 6, 1978, the statute ran. Act of June 24, 1895, P.L. 236, 12 P.S. 34, recodified at Act of July 9, 1976, P.L. 586, No. 142, sec. 2, 42 Pa.C.S.A. sec. 5524. On March 20,1979, appellant filed a petition for leave to amend the complaint by adding a third count, seeking damages for personal injuries she had herself sustained in the accident. The proposed third count alleged appellees’ negligence by incorporating the first count’s allegations of that negligence. It then alleged that appellant had been driving the automobile in which Vivian had been a passenger, and that by reason of appellees’ negligence she had sustained severe injuries, for which she had been or would be obliged to undergo medical treatment, and that she might suffer a loss of earning capacity. The lower court denied appellant leave to add this third count.

The general rule is that an amendment will not be permitted after the running of the statute of limitations if it introduces a new cause of action, Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Junk v. East End Fire Dept., 262 Pa.Superior Ct. 473, 396 A.2d 1269 (1978), but if the amendment would only amplify or enlarge the existing cause of action, it will be permitted, Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981). Plainly, to apply this rule, one must define the phrase “cause of action.”

It has been held that the cause of action in a negligence action is the “negligent act or acts which occasioned the injury:”

We have defined “cause of action” as “the negligent act or acts which occasioned the injury”: Shenandoah Borough v. Philadelphia, supra. “The tests to be applied when the question presented is whether an amended statement presents a new and different cause of action are, would a judgment bar any further action on either, does the same measure of damages support both, is the same defense open in each, and is the same measure of proof required?”: Arner v. Sokol, 373 Pa. 587, 591, 96 A.2d 854; Mussolino v. Coxe Bros. & Company, Inc., 357 Pa. 10, 15, 53 A.2d 93; Miners Savings Bank of Pittston v. Naylor, 342 Pa. 273, 280, 20 A.2d 287; 2A Anderson Pa.Civil Practice § 1033.28.
Saracina v. Cotoia, 417 Pa. 80, 85, 208 A.2d 764, 767 (1965).

For cases applying this definition, compare Laursen v. General Hospital of Monroe County, supra (proposed amendment permitted where no new negligent act alleged but dates of alleged improper drug administration added), with Junk v. East End Fire Dept., supra (proposed amendment not permitted where original complaint alleged negligence of ambulance driver in driving and amendment alleged negligence in choice of route).

Appellant argues that under these cases, her amendment should have been permitted. This argument has some force, for the amendment does not allege any new negligent act by appellees. On the contrary, as we have said, it would incorporate the allegations of appellees’ negligence as pleaded in the original complaint. While the amendment does allege items of damages not alleged in the original complaint, it has been said that an amendment adding damages will be permitted after the statute of limitations has run, “whether there is an amplification of previous averments of damage or the introduction of a new, additional or added claim, provided that it arises from the same circumstances and so long as the same negligence is charged.” 2 GoodrichAmram 2d sec. 1033:4.1 n. 58, citing Schwab v. P. J. Oesterling & Son, Inc., 386 Pa. 388, 126 A.2d 418 (1956).

Even so, we are unable to accept appellant’s argument. The definition of “cause of action” in Saracina v. Cotoia, supra, is not dispositive. Although it defines “cause of action” as “the negligent act or acts which occasioned the injury,” it does not refer to whom the duty was owed.

Similarly, although it is true that amendments adding damage claims have been permitted, these amendments added claims for damages to persons already named in the original complaint as have been injured. Here, while appellant is named in the original complaint, she is not named as some one who had been personally injured; her only claim was that she incurred and might continue to incur medical expenses for her daughter Vivian’s care, and that she would suffer financial injury if Vivian’s earnings, to which she would be entitled during Vivian’s minority, were impaired.

In Schwab v. P. J. Oesterling & Son, Inc., supra, the complaint was filed by a mother whose son had been killed in an automobile accident. In her original complaint the mother sought recovery for her son’s loss of companionship, in her capacity as a mother, and for medical expenses and administrative costs, in her capacity as administrator of his estate. The original complaint also claimed damages for the loss of the son’s automobile. The lower court permitted the mother to amend her complaint, after the statute of limitations had run, by adding a claim for the son’s loss of earnings during his normal life expectancy less the reasonable cost of his maintenance. The Supreme Court affirmed, holding that the amendment “merely brought in an additional element of damage for a cause of action already within the compass of the original complaint.” 386 Pa. at 393, 126 A.2d at 420. However, the Court did not approve of an amendment with respect to damages to the automobile the son had been driving when he was killed. The original complaint alleged that the car was the son’s, and the mother, as administrator of his estate, sought damages for its destruction; the amendment alleged that the car was the mother’s, and by the amendment the mother sought damages for its destruction in her own right. Disapproving the amendment, the Court said:

Actually, the mother’s claim in her own right to the damages for the destruction of the automobile was unenforceable but for a different reason than that assigned by the defendant [who had argued it was res judicata]; as a separate cause of action, it had long since been outlawed. Id., 386 Pa. at 391, 126 A.2d at 419.

We find Schwab v. P. J. Oesterling & Son, Inc., supra, controlling. Like the mother there, appellant, in her original complaint, pleaded only derivative claims; in the amendment, she seeks to recover in her own right for her own injuries, which had not been mentioned in the original complaint. In Schwab, the mother could not amend her complaint to add a claim for damages in her own right for destruction of her personal property—her automobile. Here, she seeks to amend her complaint to add a claim for damages in her own right for injuries to her person. Such an amendment is more than an amplification, of an existing cause of action.

Affirmed.

      . It once was thought that the phrase could be easily defined. Shenandoah Borough v. Philadelphia, 367 Pa. 180, 190, 79 A.2d 433, 438, cert. denied sub nom., School District v. Philadelphia, 342 U.S. 821, 72 S.Ct. 41, 96 L.Ed. 62 (1951) (“There is no difficulty in defining the phrase ‘cause of action.’ ”) However, the Court has more recently acknowledged that the definition is more troublesome than had been thought. See Kuisis v. Baldwin-Lima-Hamilton Corp., supra 457 Pa. at 325 n. 7, 319 A.2d at 918 n. 7 (“This Court has never adopted a comprehensive definition of what constitutes a cause of action, for the excellent reason that no such definition exists.”)

      . We note that the test set forth in Saracina seems to beg the question. The first prong of the test asks “would a judgment bar further action on either” complaint. The inquiry is circular, for res judicata will bar only those subsequent actions which involve the same cause of action. See, e.g., Keystone Bldg. Corp. v. Lincoln Savings & Loan Ass’n, 468 Pa. 85, 360 A.2d 191 (1976).

      . Accord, Turley v. Rothman, 385 Pa. 27, 122 A.2d 84 (1956) (proposed amendment permitted where original complaint alleged damage for loss of wife’s services, earnings and companionship and amendment sought to add loss of future earnings).


text:
    448 A.2d 591
    COMMONWEALTH of Pennsylvania v. Joel ZISHOLTZ and Emily Zisholtz, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1981.
    Filed July 23, 1982.

      Malvin L. Skaroff, Philadelphia, for appellant.
    Thomas E. Waters, Jr., City Solicitor, and Ronald T. Williamson, Assistant District Attorney, Norristown, did not file a brief on behalf of Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for summary violations of Section 58-17 of the Abington Township Code. Appellants contend that they should be discharged because the evidence presented at trial was insufficient to sustain the convictions. We agree and therefore order the judgments of sentence vacated and appellants discharged.

Section 58-17 of the Abington Code provides:

No person shall keep or harbor any animals in the township so as to create offensive odors, excessive noise or unsanitary conditions which are a menace to the health or safety of the public, or otherwise permit the commission or existence of a nuisance as defined hereinafter.

The charge that appellants violated this provision arose from appellants’ keeping of two pet peafowl—a peacock and a peahen.

The Commonwealth presented the testimony of one witness, Edwin H. Rogers, the Health Inspector of Abington Township. N.T. 5. Mr. Rogers observed appellants’ home on numerous occasions between September 25, 1978, and September 17,1980. At various times appellants had several exotic pets on their premises: a wallaby, two pigmy goats, a llama, and a peacock. After December 1978, however, appellants, at the request of the township, got rid of all of their pets except for the peacock. Sometime later, by September 17, 1979, appellants got a peahen, and it is the conduct of appellants’ peacock and . peahen that is at issue here. Mr. Rogers said that he “heard the peacock on a couple of occasions, but most recently this morning [September 17, 1980]—when I walked on the property, it let out sort of a ‘honk.’ ” N.T. 9. Mr. Rogers also testified that he had received some complaints concerning appellants’ pets, but it is unclear whether these complaints were about the peafowl or the other pets. Id. None of the complainants testified, and Mr. Rogers admitted on cross-examination that at least one neighbor, who apparently complained about the other pets, told him that she did not mind the peacock. N.T. 12.

Appellant Joel Zisholtz testified in his own defense. He admitted having the two peafowl, but testified that their “honking” was no louder than a dog’s bark or the squawking of a crow. N.T. 21-22. He said that they were ordinarily housed in the center of his three acre lot, but on cross-examination he admitted that sometimes, particularly when frightened, they have escaped from this area. Id. Appellant also admitted on cross-examination that he had received “[o]ne complaint from one neighbor out of eight,” but he was only asked whether the complaint was “as to these birds,” id., so that we do not know the date or nature of the complaint.

Paul R. L. Bowen, appellant’s “closest neighbor,” N.T. 25, testified that he and his wife enjoyed the peacock and peahen. He said that while recuperating from an operation he often watched them roam, “and I enjoyed their beauty.” N.T. 25. He admitted that they would occasionally “honk” but said that the noise was “like a little beep of a motor horn, once in a while. And that is not as bad as the motor horns that are on Fairyhill Road and Washington Lane [adjacent roads] at the time of the rush hour, during the morning and evening, people going to work and coming home.” Id.

The gravamen of the offense defined in Section 58-17 of the Abington Code is not the keeping of animals in the township but rather the keeping of them “so as to create” certain proscribed conditions. In appraising the sufficiency of the evidence of appellants’ guilt, we may start by noting that the Code is unclear in describing just what these proscribed conditions are. They are described as “offensive odors, excessive noise or unsanitary conditions which are a menace to the health or safety of the public . . . . ” The question is whether the “which are a menace” clause modifies only the immediately preceding “unsanitary conditions” or also “offensive odors” and “excessive noise.” We need not decide this question, however. There was no evidence either of “offensive odors” or of “unsanitary conditions.” If the Commonwealth had to prove that appellants’ peacock and peahen made noise that was both “excessive” and “a menace to the health or safety of the public,” it failed; for there was no evidence regarding the health or safety of the public. If the Commonwealth only had to prove “excessive noise,” it also failed; for whatever “excessive” means—and we pass the point whether so general a term is too vague to support a conviction of crime—it cannot include “sort of a ‘honk,’ ” not described further by the Commonwealth at all, and described by the defense as “like a little beep of a motor horn.”

Finally, the evidence was insufficient to prove that appellants “otherwise permitted] the commission or existence of a nuisance as defined hereinafter.” The only pertinent portion of the Code provides as follows:

Any animal which, by biting without provocation, habitual barking, howling, or yelping, disturbs the peace or endangers the health or safety of persons is hereby declared to be committing a nuisance.
Abington Township Code § 58-18.

There was no evidence that appellants’ two peafowl are habitual honkers or that their honking in any manner disturbed the peace of the neighborhood.

The judgments of sentence are reversed and appellants discharged.


author: CAVANAUGH, Judge:

text:
    448 A.2d 593
    Joseph MITCHELL, Appellant, v. Keith BAILEY.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed July 23, 1982.
    Mark A. Hruska, Pittsburgh, for appellant.
    William C. Porter, Washington, for appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is an appeal from the denial of a motion to strike a discontinuance for failure to commence the action within two years of the accident under the Pennsylvania No-Fault Motor Vehicle Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq; 40 P.S. § 1009.106(c)(1). Appellant contends that the No-Fault Act’s statute of limitation should have remained tolled until such time as an injured plaintiff has met the monetary threshold and, thus the lower court’s denial of appellant’s motion to strike the discontinuance was improper. We agree and reverse the order of the court below.

On April 23, 1977, the parties were involved in an automobile accident. On April 28,1978, appellants filed a complaint in trespass alleging, inter alia, that appellant had suffered damages in excess of the monetary thresholds for work loss benefits and tort liability. On October 3, 1978, appellant voluntarily discontinued his cause of action for failure to have met the monetary threshold of seven hundred and fifty ($750) dollars, 40 P.S. § 1009.301(a)(5), (b). On April 29, 1979, appellant filed a motion to strike off the discontinuance because he had met the minimum threshold required to maintain his cause of action. The lower court relying on Doward v. Atlantic Insurance Co., 37 Lehigh Co.L.J. (1977) denied his motion to strike the discontinuance and this appeal followed.

In light of this court’s recent decision in Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) reconsidering Donnelly v. DeBourke, 280 Pa.Super. 486, 421 A.2d 826 (1980) and Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), which held that the two year limitation period does not commence until a claimant knows or in the exercise of reasonable diligence should have known that the thresholds of 40 P.S. § 1009.301(a) have been met, the lower court’s refusal to strike off the discontinuance was in error. Since appellant’s claims met the minimum threshold and appellant moved to strike the discontinuance within two years of having met the monetary thresholds, the action was properly cognizable.

Accordingly the order of the court is reversed and the case is remanded for trial.

Reversed.

      . 40 P.S. § 1009.106(c) provides:
      Time limitations on actions to recover benefits.—
      (1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

      . 40 P.S. § 1009.202.

      . 40 P.S. § 1009.301.


author: BROSKY, Judge:

text:
    448 A.2d 594
    COMMONWEALTH of Pennsylvania v. Edward J. DEVLIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1981.
    Filed July 23, 1982.
    Petition for Allowance Oct. 19, 1982.

      Larry A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, BECK and McEWEN, JJ.
   BROSKY, Judge:

Appellant was charged with possession of prohibited offensive weapons, and cruelty to animals. Following denial of his motion to suppress, a jury trial was held. Appellant was found guilty of possession of a prohibited offensive weapon, namely, a pipe bomb. Post-verdict motions were subsequently filed and denied, and appellant was sentenced to three years probation. This appeal followed.

The central issue for our determination is whether the evidence presented established a violation of 18 Pa.C.S. § 908. The court below found that the evidence was sufficient. We agree.

Appellant’s central contention on appeal is that the evidence was insufficient to sustain a verdict of guilty under 18 Pa.C.S. § 908 on the ground that appellant was not shown to possess an “offensive weapon” within the meaning of the statute. In this regard, he further argues that his motion to suppress evidence should not have been denied. Finally, appellant contends that his trial counsel was ineffective for failing to preserve for review certain objections to the judge’s charge to the jury.

The facts are as follows. On August 26, 1979, Jacob Franklin, Code Enforcement Officer, received a call from a friend, Mrs. Roberta Wagner, to the effect that her dog had been shot. Mrs. Wagner lived in a three-story apartment building at 2109 Herr Street. Shortly after Mr. Franklin arrived at Mrs. Wagner’s apartment building, the police arrived. Mrs. Wagner testified at the suppression hearing that the police stated to her that they wanted to go inside the apartment building to look for spent shells in connection with the shooting. She stated that she gave the police officers her permission, as a tenant, to enter the basement. Thereafter, Jacob Franklin and Officer Ralph Franklin, patrolman, entered the basement, looked around, then exited. Officer Franklin testified that when they returned to the outside, the landlord of the building, Mr. Vergot, came over to ask what was going on. Franklin explained about the shooting, and requested permission to reenter the building, which Mr. Vergot granted. Officer Franklin, Mr. Vergot, and another officer then returned to the basement. Inside a part of the basement was a workbench, which Mr. Vergot explained had been placed there by his nephew, who was a tenant. Mr. Vergot, a plumber, stated that appellant worked for him in his plumbing business, and that plumbing supplies were stored near the work bench. On or near the workbench, the police officers noticed an assortment of military weapons and other items, including more than 600 rounds of ammunition; 25 live grenades; smoke and tear gas; 2 quarter-pound blocks of TNT; cans of smokeless powder; and an 18-inch length of pipe with a recoupler reduced by taping to receive a grenade fuse which had been screwed into it. Near the bench was a locker containing military uniforms bearing the name “Devlin.” Mr. Vergot indicated that appellant was a Marine Corps reservist. Appellant was subsequently charged with possession of a prohibited offensive weapon.

Under 18 Pa.C.S. § 908, a person commits a misdemeanor of the first degree if, except as authorized by law, he . . . “possess any offensive weapon.” Subsection (c) states:

As used in this section “offensive weapon” means any bomb ... or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

Appellant contends that the pipe and attached apparatus did not constitute a completed, functional “pipe bomb.” In so arguing, appellant would have us overrule our decision in Commonwealth v. Ponds, 236 Pa.Super. 107, 345 A.2d 253 (1976). Ponds concerned a conviction under 18 Pa.C.S. § 908 for possession of a sawed-off shotgun. Appellant argued that it was not a prohibited offensive weapon because it was inoperable (it had a defective trigger mechanism and was missing certain parts). In holding that the legislature did not intend to include an operability requirement, we stated that it was “[sufficient to show that the weapon possessed the outward appearance and characteristics of a sawed-off shotgun.” Id., 236 Pa.Superior at 112, 345 A.2d at 256.

The opinion goes on to state:

The fact that a sawed-off shotgun is at a given time inoperable does not discount the danger which the legislature intended to prevent. The mere possession of an item identifiable as a sawed-off shotgun, even though inoperable is still an ominous presence and has no place nor possible use in the community and should be prohibited.

Id., 236 Pa.Superior at 113, 345 A.2d at 256.

Therefore, under Ponds, the weapon does not have to be operable. In the case at bar, the record shows that the pipe and attached apparatus was identifiable as a pipe bomb. At trial, Larry McCune, special enforcement officer with the Bureau of Alcohol, Tobacco and Firearms, and an expert in explosives, was asked whether the pipe and attached apparatus could have been assembled into a device of any kind.

A: Yes, very easily.
Q: [H]ow would that be accomplished?
A: Well, you’d have to have an amount of powder from the can and dump it down the end and seal the end . . .
Q: And when constructed in the manner that you described, what would , a device of that type that you described be called?
A: An explosive bomb. We call it a pipe bomb, (emphasis added)
Q: How would it function?
A:' It would function when you pull the safety pin from the end release, we have a response relating after four or five seconds.
Q: What is the response?
A: The response from the grenade fuse. There would be a four or five second delay. Then we would have initiation, the initiation on the fuse which initiates the powder inside the pipe.
Q: After you had initiated in the manner you described, what would be the end result once the powder was inside the pipe initiated?
A: It would cause the pipe to burst and give an explosion which would propel metal fragments at a high velocity. .. .

According to McCune’s testimony, therefore, the pipe and attached apparatus was identifiable as a “pipe bomb,” and function once the powder was poured into the end and the end sealed. Once the powder was inside and the pipe initiated, the pipe would burst, causing an explosion.

We hold that the pipe and attached apparatus constituted “an item identifiable as a pipe bomb,” which, even though not operable until powder was poured into the end and the end sealed, was nonetheless “an ominous presence” which “has no place nor possible use in the community.” Commonwealth v. Ponds, supra. Even if the parts separately could conceivably have some lawful use, they were in this instance, connected, and as such, had no possible use in the community. As we noted in Ponds, the class of weapons covered by 18 Pa.C.S. § 908 “have no peaceful purpose, and their only conceivable use is for purposes which our society has found to be criminal.” Id., 236 Pa.Super. at 111, 345 A.2d at 255; Commonwealth v. Fisher, 485 Pa. 8, 400 A.2d 1284 (1979). There can be no doubt here that the only “conceivable use” for a pipe bomb is “for purposes which our society has found to be criminal.” Accordingly, we hold that the evidence was sufficient here to sustain a verdict of guilty under 18 Pa.C.S. § 908.

Appellant also argues that the court below erred in denying his motion to suppress. He contends that the evidence should have been suppressed because it was obtained pursuant to an unlawful search. Appellant asserts that he had a legitimate expectation of privacy with respect to the basement workbench area in which the weapon in question was found.

Mrs. Wagner, the tenant whose dog had been shot, testified that all the tenants had access to the basement in order to store whatever belongings they might have. The workbench area was part of the total basement area allocated to the tenants for storage. Given these facts, it cannot be said that appellant had a legitimate expectation of privacy in the basement area. In addition, consent was given to the police, by Mrs. Wagner and by Mr. Vergot, the landlord, to enter the basement. Since the basement was within the common use and control of both Mrs. Wagner and Mr. Vergot, both could validly consent the police’s search of the basement area, and a warrant was not required. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Commonwealth v. Glover, 266 Pa.Super. 531, 405 A.2d 945 (1979).

Accordingly, we find that appellant’s argument lacks merit.

Appellant’s final argument is that trial counsel was ineffective for failing to raise or preserve for review objections to the court’s charge to the jury. Appellant contends that counsel should have objected to a portion of the charge which defined “offensive weapon” as “includ(ing) the components of an offensive weapon...”

The record shows that the trial judge’s charge to the jury included the following statements:

******
What is an offensive weapon? It has been defined in our Crimes Code and would include a bomb, or any other implement for the infliction of serious bodily injury which serves no common useful purpose... As I understand the Commonwealth does not contend that the pipe as it appeared in this courtroom could be fragmented through an explosive charge then contained in it; but rather that the presence of the components within the possession of this defendant are such to readily be assembled in a form that would explode.... If the weapon was inoperable at the time because it was not loaded or lacked some component to make it immediately operable it includes possession of components if they can readily be assembled into the weapon provided that the components are possessed by the defendant at that time for that purpose. So, that you must find so far as the bomb is concerned that it could readily have been assembled from the components found in the defendant’s possession, and that he, in fact, possessed it for that purpose, to assemble a bomb.

We hold that the above reference to “components,” viewed within the context of the total charge, compact with the language and reasoning contained in Commonwealth v. Ponds, supra, and were not objectionable. The evidence clearly established that the pipe and attached apparatus could “readily be assembled into [a pipe bomb].” Therefore, the charge was proper and trial counsel was not ineffective for not taking specific objection to use of the term “components.” Accordingly, we hold that this claim is also without merit.

For these reasons, we affirm- the judgment of sentence entered by the court below.

Judgment of sentence affirmed.


text:
    448 A.2d 598
    COMMONWEALTH of Pennsylvania v. David Lee STEWART, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1981.
    Filed July 23, 1982.
    Petition for Allowance of Appeal Granted Jan. 14, 1983.

      Peter T. Campana, Williamsport, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   BROSKY, Judge:

David Stewart, appellant, was convicted of voluntary manslaughter on August 5, 1980. Post-verdict motions were filed and subsequently denied. This appeal followed.

Stewart was tried before a jury. On the second and final day of his trial, one of the twelve jurors failed to appear. No objection was made at the time of the proceedings by Stewart. He did not complain about the number of jurors on the jury until after the jury rendered its verdict.

Stewart presents two questions on appeal:

1. Whether the lower court erred by continuing with Stewart’s trial on the second day with only eleven jurors without securing Stewart’s or his attorney’s consent and agreement?

2. Whether trial counsel was ineffective in failing to object to the trial court continuing with Stewart’s trial on the second day with only eleven jurors?

Pennsylvania Rule of Criminal Procedure 1103 states:

Rule 1103. Consent to be Tried by Less Than Twelve Jurors
In all cases the defendant at any time before verdict may agree, with the consent of his attorney, and approval by a judge of the court in which the case is pending, to be tried by a jury of less than twelve but not less than six. Such consent shall be made a part of the record. The verdict in such a case shall have the same force and effect as a verdict by a jury of twelve.

The.comment following Rule 1103 states:

Comment: The 1976 amendment had the effect of making this Rule applicable to capital cases. Formerly a defendant in a capital case could not consent to be tried by fewer than twelve (12) jurors.
The procedure under this Rule is intended to apply only after a jury of twelve is initially sworn, and before a verdict is rendered.

Initially, we must determine whether a Rule 1103 defect represents a waivable error. If it does then we cannot hold that the trial court erred in continuing Stewart’s trial with only eleven jurors. In Commonwealth of Pennsylvania ex rel. Walton v. Aytch, 466 Pa. 172, 178-179, 352 A.2d 4, 7 (1976), our Supreme Court said regarding Rule 1103:

The rule states that the defendant may agree to proceed with less than twelve jurors. The Commonwealth’s position would require a ruling that the defendant must proceed with less than twelve jurors or waive any claim that the discharge was not manifestly necessary and thus give up his interest in having the jury as originally empaneled determine his guilt or innocence. See United States v. Jorn, [400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543] supra. Such a ruling is unacceptable for two reasons: (1) it is contrary to the clear and unambiguous language of Rule 1103, see Pa.R.Crim.P. 2, 1 C.P.S.A. § 1921(b); and (2) it would require a defendant to give up his interest in having the jury as originally empaneled determine his guilt or innocence and thus improperly abridge a substantive right of a defendant, see Pa.Const. art. 5, § 10(c). The clear- language of Rule 1103 grants a defendant, subject to the supervision of the court, an option of proceeding with less than twelve jurors. Thus, after the dismissal of a juror over objection, if the defendant and his counsel still believe the juror was improperly discharged, the defendant may refuse to proceed with less than twelve and thereby require the court to formally declare the mistrial. The attempt to retry would then ripen the issue of whether the discharge was manifestly necessary and thus the double jeopardy issue would be properly raised. If the defendant and his counsel believe circumstances of manifest necessity existed despite his objection, the defendant may agree to proceed with less than twelve or consent to the formal declaration of a mistrial, thus waiving the double jeopardy claim because he does not think his interest in the jury as originally empaneled has been improperly denied. (Emphasis in original).

Accordingly, the Supreme Court has held that the defendant may agree to proceed with a jury of fewer than twelve jurors. If a juror is dismissed, then only when so done over an objection from the defendant, may he refuse to proceed with fewer than twelve jurors. Thus, it would appear that the claim is waivable. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

We note that an alternative view has been expressed by Justice Roberts in Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d at 616, (Roberts, J. Dissenting), Justice Roberts said:

Somerville [Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. [1066] 35 L.Ed.2d 425 (1973)] specifically involved a formal defect in an indictment which “could not be waived by the defendant’s failure to object, and could be asserted on appeal or in a post-conviction proceeding to overturn a final judgment of conviction.” Id. at 460, 93 S.Ct. at 1068. Given these facts, the Supreme Court explained the limited circumstances when a mistrial could be declared in the “ends of public justice.”
“If an error would make reversal on appeal a certainty, it would not serve ‘the ends of public justice’ to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.”

Id. at 464, 93 S.Ct. at 1070.

We are here dealing with a non-Somerville defect in the proceedings—a speculative one—a defect, if any, that not only could be waived at trial, but which, as the majority correctly states, was actually waived by appellant. [Footnote omitted]. Since an accused can knowingly and intelligently waive any constitutional right, there is no reason why this appellant could not waive the opportunity to move for a mistrial that the trial judge was offering.

Id., 456 Pa. at 471-472, 317 A.2d 629 (emphasis added).

Thus, Justice Roberts would hold that Rule 1103 may be waived, however he indicates that it must be a knowing and intelligent waiver. This in turn indicates that Justice Roberts would require the court to engage in a colloquy, when it becomes aware of the deficient number of jurors, to assure that the defendant has waived Rule 1103 knowingly and intelligently. While we find Justice Roberts view very persuasive, we are obliged to hold that the decision of our Supreme Court in Commonwealth ex rel. Walton v. Aytch, supra, is controlling. Accordingly, we hold that Rule 1103 provides the defendant the option to proceed with fewer than 12 jurors where a juror has been dismissed over objection. Id. 466 Pa. at 178-179, 352 A.2d at 7. There is no requirement that the court engage in a colloquy. Clearly, the decision in Commonwealth ex rel. Walton v. Aytch, supra, is controlling.

Accordingly, Stewart having failed to object to the absence of a juror, and nonexistence of an alternate juror to replace the absent juror, has waived his right to attack the numerical composition of his jury in this appeal.

Stewart also contends that his trial counsel was ineffective for failing to object to the numerical composition of the jury. This issue is presented for the first time on appeal. We are unable to determine from the record whether trial counsel had any reasonable basis for failing to object to the numerical composition of the jury under Rule 1103. Accordingly, we are obliged to vacate the judgment of sentence and remand for an evidentiary hearing. Commonwealth v. Hubbard, 272 Pa. 259, 278, 372 A.2d 687, 696 (1977); Commonwealth v. Twiggs, 460 Pa. 105, 106, 111, 331 A.2d 440, 443 (1975). If the trial court finds that counsel was ineffective, then it shall permit Stewart to file a Rule 1103 objection nunc pro tunc. If appellant is unable to sustain his contention that counsel was ineffective, then the judgment of sentence should be reimposed.

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.

WIEAND and MONTEMURO, JJ., concur in result.

      . We note that Stewart does not argue that his counsel failed to file a motion for a mistrial. Such a motion is not waivable. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976). Therefore, Stewart could have presented it directly to this court on appeal. He has not done so. Therefore, we will not consider in any way such an assertion.

       See, e.g., Commonwealth v. Phillips, 208 Pa.Super. 121, 220 A.2d 345 (1966), aff'd, 387 U.S. 946, 87 S.Ct. 2084, 18 L.Ed.2d 1336 (1967) (grand jury indictment); Pa.R.Crim.P. 215(a) (same); United States v. Banks, 370 F.2d 141 (4th Cir. 1966), cert. denied, 386 U.S. 997, 87 S.Ct. 1317, 18 L.Ed.2d 345 (1967) (speedy trial); Aeby v. United States, 255 F.2d 847 (5th Cir. 1958) (jury trial); Commonwealth v. Garrett, 439 Pa. 58, 266 A.2d 82 (1970) (same); Pa.R.Crim.P. 1101 (same); Pa.R.Crim.P. 1103 (trial by less than 12 jurors); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (counsel); Commonwealth v. Ritchey, 431 Pa. 269, 245 A.2d 446 (1968) (same); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (counsel during interrogation); Burgess v. King, 130 F.2d 761 (8th Cir. 1942) (confrontation of witnesses); Commonwealth v. Petrillo, 340 Pa. 33, 16 A.2d 50 (1940) (same). Cf. Commonwealth v. McGrogan, 449 Pa. 584, 588 nn. 8-12, 297 A.2d 456, 458 nn. 8-12 (1972). See generally Sandalow, Henry v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine, 1965 Sup.Ct. Rev. 187; Comment, Criminal Waiver: The Requirements of Personal Participation, Competence and Legitimate State Interest, 54 Calif. L.Rev. 1262 (1966).

      . Justice Roberts concurred in the result in Commonwealth ex rel. Walton v. Aytch, supra.

      . Stewart is represented on appeal by new counsel. Therefore, this is the first opportunity had by Stewart to raise his trial counsel’s ineffectiveness. Accordingly, the issue has not been waived. Commonwealth v. Hubbard, 472 Pa. 259, 276-277 n.6, 372 A.2d 687, 695 n.6 (1977).

      . We recognize that the circumstances of this case render it extremely likely that if Stewart will not accept the verdict rendered by the eleven member jury that he will assert that he cannot be retried because of his right not to be placed in jeopardy twice. In Commonwealth ex rel. Walton v. Aytch, supra, our Supreme Court discussed the effect of rule 1103 upon the Commonwealth argument that the trial judge’s sua sponte declaration of a mistrial after the twelfth juror, where no alternates remained, was released from her duty to be a juror because she was unsuccessful in procuring a babysitter to stay with her children. The trial court therein proceeded under Rule 1103 to conduct a colloquy with Walton as to whether he would proceed with only eleven jurors. Walton refused to do so. The Supreme Court found this was not manifestly necessary. Retrial was therefore prohibited by the Fifth Amendment. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Perez, 22 U.S. (9 Wheat.) 579, 61 L.Ed. 165 (1824); Commonwealth v. Stewart, supra.
      It is clear that a defendant may be retried without violating his right not to be placed twice in jeopardy if his prior trial ended without a verdict for reasons of manifest necessity. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979). We will properly leave this determination, should it eventually be made to the trial court. Id: Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976).
      We also realize that should the lower court find trial counsel ineffective and order a new trial that Stewart may file a pre-trial motion to dismiss that appeal on double jeopardy grounds. An order denying a pre-trial motion to dismiss on double jeopardy grounds is immediately appealable. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980); Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). We do not comment upon the merits of any of these possible contentions at this time.


author: ROWLEY, Judge:

text:
    448 A.2d 601
    Gerald B. ALDERFER, Appellant, v. Thomas A. PENDERGRAFT and Cynthia S. Pendergraft.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1982.
    Filed July 23, 1982.

      Marc D. Jonas, Lansdale, for appellant.
    Thomas A. Pendergraft, appellee, in pro. per.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   ROWLEY, Judge:

This is an appeal from an order denying the relief requested by appellant in a petition for a hearing to frame a final decree in equity pursuant to Pa.R.C.P. 1511(b).

On November 21, 1980, appellant filed a complaint in equity against Thomas A. Pendergraft and his wife, Cynthia, appellees, for reformation of a judgment note executed by only Thomas Pendergraft. The note was executed on August 18,1978 and judgment was confessed on the note on September 14, 1978. The note was given to secure a $2,000.00 loan appellant made to the Pendergrafts in connection with their purchase of real estate. Appellant averred in his complaint that it was agreed among the parties that Mrs. Pendergraft was also to sign the note, but the appellees “willingly, knowingly, and maliciously failed” to do so. Appellant requested the trial court to order that the original note be cancelled and direct both appellees to execute a new note containing the same terms.

The Pendergrafts failed to file either preliminary objections or an answer to the complaint. As a result, appellant caused a default judgment to be entered against appellees on January 21, 1981, after notice to appellees, pursuant to Pa.R.C.P. 1511(a).

On February 3, 1981, appellant, pursuant to Pa.R.C.P. 1511(b), petitioned the trial court for a hearing to frame “an appropriate Final Decree”. In the petition, however, appellant averred that he was “entitled to a decree reforming . . . the judgment” entered by confession against Mr. Pendergraft and also to reasonable counsel fees and costs. A hearing date was set by the court and the Pendergrafts were notified of the time and place for the hearing. Appellees failed to appear either in person or by counsel.

At the hearing, the trial judge directed appellant’s counsel to make a “judgment search” against the Pendergrafts. The search turned up a $2,000.00 judgment entered against appellees on December 5, 1978, in favor of the Pennsylvania Department of Transportation.

After receiving the results of the judgment search, the trial court entered an order denying “[appellant’s] petition in the nature of a request for the award of counsel fees” and for the “reformation of the Judgment”. Appellant filed this appeal. The trial court, in its opinion filed pursuant to Pa.R.A.P. 1925(a), stated that relief was denied because the rights of an innocent third party, in this case the Department of Transportation, had intervened and would be prejudiced by reforming the judgment effective September 14, 1978. The trial court gave no reason for its denial of appellant’s request for counsel fees and costs.

In essence, appellant argues that reformation of the judgment is appropriate under the facts set forth in his complaint and the trial court should have reformed the judgment as requested or, at the very least, reformed it but made it junior in lien to the Department of Transportation’s judgment.

The proceeding to frame an appropriate final decree in equity following the entry of a default judgment is equitable in nature. It is governed by principles of equity and is addressed to the sound discretion of the trial court. The scope of our review on appeal is to determine whether or not the trial court made an error of law or committed a clear abuse of its discretion.

Our review of the record in this case compels us to the conclusion that an error of law was committed and that the case must be remanded to the trial court for further proceedings. Compare Schmitt Co. v. Mason’s Stores, Inc., 293 Pa.Super. 270, 438 A.2d 989 (1981) and Gravely v. Gaffney, 63 Pa.Cmwlth. 112, 437 A.2d 1041 (1981). It appears quite clearly that the trial court considered only appellant’s request to amend the judgment by adding the appellee-wife’s name as a judgment debtor effective as of the date that the judgment was entered against appelleehusband. That relief was properly denied because of the intervening rights of the Pennsylvania Department of Transportation. However, the record is equally clear that the trial court failed to consider any alternative forms of relief. In fact, as the record now stands, appellant still has a default judgment in the equity proceeding against both defendants but no relief outlined by way of a final decree.

In a proceeding under Pa.RC.P. 1511(b) to consider an appropriate final decree where judgment has been entered by default, the “default judgment does not admit the sufficiency of the pleading in law to sustain a judgment, nor does it admit that the facts as stated constitute a cause of action.” If the record shows on its face that the judgment entered by default is baseless the court should strike it off. Commonwealth, Dept. of Environmental Res. v. Allias, 20 Pa.Comwlth. 222, 341 A.2d 226 (1976). In Allias the trial court, at a hearing scheduled to take testimony for the purpose of framing a final decree following entry of a default judgment, concluded that the complaint failed to state a cause of action. The trial court then filed a decree nisi opening the judgment and dismissed the complaint. A panel of the Commonwealth Court, in an opinion by Judge Mencer, held that the proper order where the trial court determines that there is no cause of action pled is to strike the judgment that has been entered rather than to open it. The decree opening the judgment was reversed and the case was remanded to the trial court for a further hearing to either frame a final decree or strike the judgment.

In the case before us, however, we have concluded, after reviewing the record, that the complaint does state a cause of action over which the trial court had jurisdiction. Therefore, the court should have considered whether some alternative form of relief was available that could appropriately be granted under the circumstances. Courts of equity have the power to reform written instruments where there is an error in or an omission from the writing as a result of fraud, accident or mutual mistake. Kutsenkow v. Kutsenkow, 414 Pa. 610, 202 A.2d 68 (1964) [reformation of the description in a deed]. Additionally, if the mistake is unilateral but the other party knows of the mistake, the party with such knowledge is estopped from relying on the mistake and relief is warranted as fully as in the case of a mutual mistake. Line Lexington Lumber and Millwork Co. Inc. v. Pa. Publishing Corp., 451 Pa. 154, 301 A.2d 684 (1973) [reformation of insurance contracts by adding the name of an additional insured]. In Line the court said:

“. . . if the party against whom reformation is sought has such knowledge of a mistake as to justify an inference of fraud or bad faith, relief would be justified.” [451 Pa. at 159, 301 A.2d at 687]

“Moreover, if the non-mistaken party knows what the other party actually intended, the instrument will be reformed to conform to that intention”. Id., 451 Pa. at 160, 301 A.2d at 687-88.

The complaint filed by appellant avers that Mr. and Mrs. Pendergraft, the appellees, were to be jointly liable for repayment of the money borrowed from appellant. It is further averred that the wife-appellee agreed to sign the note and that her failure to do so was willing, knowing, and malicious. These allegations establish that the parties intended to create an obligation between the appellant and both of the appellees. There is no indication that the reformation of the note would in any way prejudice the appellees. In order to protect the intervening rights of the Pennsylvania Department of Transportation, the lien of the judgment, if reformed, may be made effective from a date subsequent to the entry of the judgment held by the Department of Transportation thereby maintaining its priority. In Gump’s Appeal, 65 Pa. 476 (1870) the court, in an opinion by Mr. Justice Agnew, affirmed a decision of the trial court which reformed a note by inserting a provision for interest which had been omitted by mistake and also enforcing the judgment that had been entered on the note by requiring the payment of the interest that had been omitted.

The Court of Appeals of Maryland in Aetna Indemnity Co. v. Baltimore S.P. & C. Railway Co., 117 Md. 523, 84 A. 166 (1912) reformed a surety bond from which the principal obligor’s signature had been omitted by mistake. In directing that the obligor’s bond be reformed by adding the principal, the court said:

“. . . it would be a confession of a very limited power to do justice, if a court of equity would have to admit that it could not require the bond to be put in the shape that it was intended and believed to be by all the parties.. . . ” [84 A. at 167]

In this case, there are appropriate remedies available to appellant which should be considered by the trial court. Finally, in drafting an appropriate final decree the court may consider appellant’s request for counsel fees in addition to costs.

Order reversed and case remanded. Jurisdiction is relinquished.

      . Pa.R.C.P 1511(a) provides: “The prothonotary, on praecipe of the plaintiff, shall énter a judgment by default against the defendant for failure to plead within the required time to a complaint which contains a notice to defend. In all other cases of default or admission the judgment shall be entered by the court”.

      . Pa.R.C.P. 1511(b) provides: “In all cases, the court shall enter an appropriate final decree upon the judgment of default or admission and may take testimony to assist in its adjudication”.

      . The Pendergrafts have not filed a brief or appeared at oral argument.

      . There is no indication in the record that the Department of Transportation ever received notice of any of the proceedings in this case or that it sought permission to intervene to protect its rights as a judgment creditor.


text:
    448 A.2d 605
    Nicholas LATTANZE and Theresa Cappelli, Appellants, v. Thomas F. SILVERSTRINI, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1982.
    Filed July 23, 1982.

      Edward L. McCandless, Philadelphia, for appellants.
    William H. Kinkead, Norristown, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   ROWLEY, Judge:

This is an appeal from a judgment entered in favor of appellee in appellant’s trespass action seeking damages for personal injuries claimed to have resulted from a motor vehicle accident. Appellant contends, inter alia, that the trial court erred in directing a verdict for the appellee and denying his motion for a new trial. We agree and, therefore, reverse and remand for a new trial.

In an appeal from a directed verdict, the Appellate Court must consider the evidence and all reasonable inferences in the light most favorable to the appellant. Litwinko v. Gray, 267 Pa.Super. 541, 407 A.2d 42 (1979). If a jury could have reasonably concluded on the basis of that evidence and those inferences that liability should rest with the appellee, then the decision to direct a verdict was in error. See Cox v. Equitable Gas Co., 227 Pa.Super. 153, 324 A.2d 516 (1974). If there is any room for doubt, the trial court should not direct a verdict. Stephens v. Carrara, 265 Pa.Super. 102, 401 A.2d 821 (1979).

The evidence presented at trial may be summarized as follows: On July 26, 1975, appellant Nicholas Lattanze, his friend Theresa Cappelli, and several children were involved in an auto accident with a van driven by appellee. The accident occurred when the appellee made a right turn after signaling his intention to make a left turn. At the time of collision, both vehicles were traveling at approximately five miles per hour.

As a result of the collision, appellant was thrown forward against the windshield, rebounded off the windshield, glanced against the driver’s side door and then back into his seat. Appellant struck the left side of his forehead against the windshield and his left side and arm against the door. Immediately after the accident appellant indicated he was all right and did not complain of any physical problems.

Approximately six hours after the accident, however, appellant awoke from a nap with a severe headache and pain in his neck, across both shoulders, and in his left arm. When he moved, it- felt like “things inside. . . were ripping”. Dr. Albert Grayce was called and was asked to come to the appellant’s home that evening. Dr. Grayce agreed to do so. After examining appellant that evening, Dr. Grayce found that he had muscle spasms in the neck and shoulder region, restrictions of movement in both arms, the neck and lower back, and his left knee was swollen and bruised. Appellant was given a shot to relax the muscles and ease the pain.

In the days that followed the accident, appellant had “severe” headaches and the pain in his neck and shoulders became more intense. In describing the headaches, appellant testified that on one occasion the striking of a match felt “like a stick of dynamite going off” and the flame looked like a “nuclear blast”. Five days after the accident, appellant began experiencing numbness and loss of strength in both of his arms. Three weeks after the accident, he started having vision difficulties.

From July 28, 1975, through August 18, 1975, appellant went to Dr. Grayce on seven different occasions for treatment of his physical problems. As part of that treatment Dr. Grayce had appellant wear a neck brace. The brace, however, was of no help. On August 18, 1975, Dr. Grayce had the appellant hospitalized for tests and observation. After running a series of tests, Dr. Grayce diagnosed appellant’s condition as a concussion, cervical strain, lumbodorsal and lumbosacral sprains, and some tendonitis, mild fasciitis and neuritis in the neck and shoulder. The treatment prescribed was bed rest, physical therapy and the use of analgesic drugs to relax the appellant’s muscles. Appellant was hospitalized for eleven days.

Appellant’s physical problems and the corresponding treatment lasted for almost eight months. During a substantial portion of that time, his symptoms prevented appellant from working.

Prior to the accident, appellant did not have any of the physical problems that he exhibited following it.

At the trial, Dr. Grayce testified that the appellant’s physical problems “were consistent with. . .a recoil type injury, which has to do with bumping or jostling or being moved from one position to another rather abruptly; impact injuries”. (N.T. p. 64) He also testified that some of the symptoms of concussion or recoil type injuries often do not manifest themselves until seventy-two to ninety-six hours after the injury. (N.T. p. 58) Although asked if he could, Dr. Grayce, appellant’s only medical expert, never testified that in his professional opinion the appellant’s physical problems were caused by the accident.

After closing arguments, the trial court, sua sponte, directed a verdict in favor of the appellee. The court ruled that expert medical testimony was needed to prove the causal relationship between all of appellant’s injuries and the accident and that appellant had failed to present such testimony. Therefore, the trial court determined that appellant had failed to prove that he was entitled to recover any damages from the appellee as a result of the accident of July 25, 1975.

Appellant contends his physical problems were such that a jury could find, without the introduction of expert medical testimony, that there was a causal relationship between the accident and his physical problems. Hence, appellant argues, the trial court erred in directing a verdict in favor of the appellee on the basis that he failed to prove the necessary causal relationship.

In a personal injury case, the plaintiff must prove the existence of a causal relationship between the injury complained of and the alleged negligent act to be entitled to recover for the injury. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). Generally, a plaintiff must prove causation by expert medical testimony. Smith v. German, 434 Pa. 47, 253 A.2d 107 (1969). There is an exception, however, where there is an obvious causal relationship between the two. Smith v. German, supra. An obvious causal relationship exists where the injuries are either an “immediate and direct” or the “natural and probable” result of the alleged negligent act. Tabuteau v. London G. & A., Ltd., 351 Pa. 183, 40 A.2d 396 (1945); and Fenstermaker v. Bodamer, 195 Pa.Super. 436, 171 A.2d 641 (1961). “The two must be ‘so closely connected and so readily apparent that a layman could diagnose (except by guessing) the causal connection’ . . . . ” [citation omitted] Smith v. German, 434 Pa. at 51, 253 A.2d at 109.

In the following cases it was determined that the injuries complained of were either an “immediate and direct” or the “natural and probable” result of the alleged negligent act and, therefore, expert medical testimony was not needed to prove causation: Schultz v. Pivar, 370 Pa. 271, 88 A.2d 74 (1952) [sacro-iliac sprain resulting from a fall into a manhole, back pain started immediately after the fall]; Tabuteau v. London G. & A. Co., Ltd., supra, [hernia caused by tripping on an uneven sidewalk, intense pain in groin and nausea felt immediately after the accident, two small lumps in the groin area discovered shortly thereafter]; Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974) [minimal organic brain damage caused by being struck on the head by a car and knocked unconscious]; Fenstermaker v. Bodamer, supra, [neck, shoulder and elbow pain developed shortly after an auto accident, doctor prescribed a neck brace and leather collar to ease the pain]; Munns v. Easthome Furniture Industries, Inc., 193 Pa.Super. 61, 164 A.2d 30 (1960) [ruptured cervical disk caused when a sudden gush of compressed air twisted the plaintiffs left arm while he was using a power stapler, pain and numbness in the fingers felt shortly after the accident, pain spread to shoulder and then neck in the following days]; and Yellow Cab Co. v. Workmen’s Compensation Appeal Board, 37 Pa. Cm with. 337, 390 A.2d 880 (1978) [subdural hematoma caused when plaintiff struck his head against the windshield in an auto accident, severe headaches and dizziness started almost immediately after the accident, plaintiff blacked-out one month after the accident]. These cases contain two common characteristics. The first is that the respective plaintiffs began exhibiting symptoms of their injuries immediately after the accident or within a relatively short time thereafter. The second is that the injury complained of was the type one would reasonably expect to result from the accident in question.

In the following cases it was determined that an obvious causal relationship did not exist between the injuries complained of and the alleged negligence and, therefore, expert medical testimony was needed to establish the necessary causal link: Smith v. German, supra, [allegation that a severe personality change was caused by a period of marital discord, rather than an auto accident]; Florig v. Sears Roebuck & Co., 388 Pa. 419, 130 A.2d 445 (1957) [allegation that fall from a roof was caused by a wrist sprain sustained fifteen months prior to the fall, where the fall occurred when the plaintiff’s left arm gave out while working on a roof]; Menarde v. Phildelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954) [allegation that a slip and fall on a sidewalk two and one half months earlier had caused cancer where the only injury sustained in the fall was a bruise in the area where the cancer was found]; Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977) [allegation that an abnormal curvature of the spine and a defective vertebrae were the result of an auto accident where the symptoms did not develop until sometime after the accident and the problems are typically a developmental defect]; Simons v. Workmen’s Compensation Appeal Board, 52 Pa.Cmwlth. 575, 415 A.2d 1290 (1980) [allegation that a detached retina was caused by tripping over a stool]; and, Heffer v. G.A.F. Corporation, 29 Pa.Cmwlth. 365, 370 A.2d 1254 (1977) [allegation that a heart attack was caused by exposure to extreme cold shortly before the attack]. In these cases it is to be noted that a significant period of time had elapsed between the injury complained of and the accident and that the injury was not of the type one would normally expect to result from the accident in question either because the accident would not normally produce such an injury or there were other equally likely or more likely causes of the injury.

The facts presented by the appellant at the trial in this case are most similar to those in Fenstermaker v. Bodamer, supra. In each case the injuries were sustained in an automobile accident involving vehicles moving at a relatively slow rate of speed. The injuries resulted from the respective plaintiffs being thrown about inside their vehicle by the force of the collision. The injuries sustained were to the neck, back and shoulder muscles, except that the appellant in this case also sustained a concussion. Finally, neither the appellant nor the plaintiff in Fenstermaker suffered from any of the physical symptoms prior to the accident in question.

Our review of the record in this case, in the light most favorable to appellant, discloses that, at least insofar as appellant’s headache, neck and shoulder spasms, limitation of motion in his arms, neck and lower back, and the swollen and bruised left knee are concerned, the jury could have concluded that there was an obvious causal relationship between the accident of July 26, 1975 and appellant’s symptoms that manifested themselves the same day. This is especially so when the record contains evidence that a delay of six (6) hours between the trauma and the onset of symptoms is well within “normal” limits. The symptoms complained of could be found to be the “immediate and direct” result of appellee’s allegedly negligent conduct. Therefore, the trial court’s decision to direct a verdict in favor of appellee constituted an error of law. For that reason the trial court’s decision is reversed, the judgment is vacated and the case is remanded for a new trial. Jurisdiction is relinquished.

      . This is the second time this case has been before this Court for review. The first appeal was quashed because the verdict had not been reduced to a final judgment. See Lattanze v. Silverstrini, 287 Pa.Super. 263, 429 A.2d 1201 (1981). Final judgment was entered on July 1, 1981 and this appeal was filed.

      . Appellant also contends the trial court erred in sustaining objections to two questions dealing with the issue of causation that he asked his medical expert. In light of our resolution of the first issue raised by the appellant, we will not consider this question.

      . Theresa Cappelli also brought suit against the appellee for the injuries she sustained in this accident. Her case was settled prior to trial.

      . Dr. Grayce is an Osteopath.

      . Fasciitis is an inflammation of the sheet or band of fibrous tissue that form an investment (mold or covering) for the muscles and various organs of the body.

      . Neuritis is an inflammation of a nerve.

      . In the trial court and in his first appeal to the Superior Court, appellant raised the issue of whether a court has the power to direct a verdict sua sponte. In the per curiam opinion filed quashing that appeal, this issue was termed an “interesting question”. In this appeal, however, appellant has not raised that issue. It is not included in the “Statement of Questions Involved” nor was it raised during oral argument. Therefore, that issue will not be considered. See Commonwealth v. Miller, 283 Pa.Super. 411, 424 A.2d 531 (1981), and Pa.R.A.P. 2116(a).

      . Even if none of appellant’s damage claims could properly be submitted to the jury, it is still doubtful that a directed verdict in favor of the appellee is proper where there is evidence of liability. In Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 197 A.2d 721 (1964), an action of trespass for conversion of the contents of a safe deposit box, the Court held that although the plaintiff had failed to establish that she was entitled to damages in any substantial sum, she was entitled to a judgment for nominal damages of $1.00 where there was evidence of a technical conversion by the Bank’s denial of access to the box for a period of two (2) days and that the trial court had erred in directing a verdict for the defendant.

      . In the alternative, appellant argues that Dr. Grayce’s testimony was sufficient to provide the necessary expert evidence of causation. We will not consider that argument, however, since we have determined that expert medical testimony was not needed to prove causation of all of appellant’s complaints.

      . The Court in Simmons v. Mullen, supra, assuming that expert medical testimony was necessary, also concluded that such testimony had been introduced.

      . Although the Munns and Yellow Cab cases deal with appeals from decisions of the Workmen’s Compensation Appeal Board, the test for determining whether or not expert medical testimony is necessary to prove causation is the same as in other cases. See Yellow Cab Co. v. Workmen’s Compensation Appeal Board, supra.


author: WIEAND, Judge:

text:
    448 A.2d 609
    COMMONWEALTH of Pennsylvania v. Richard M. McGUIRE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed July 23, 1982.

      John P. Campana, Williamsport, for appellant.

      Robert F. Banks, Assistant District Attorney, Williams-port, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and WIEAND, JJ.
   WIEAND, Judge:

Richard McGuire was tried by jury and convicted of indecent assault and corruption of minors. On direct appeal, after post trial motions were denied and sentence imposed, McGuire contends that the trial court erred (1) when it allowed the Commonwealth to introduce evidence of “drinking” by appellant; (2) when it refused a motion for mistrial after the prosecution had cross-examined appellant’s wife concerning an unrelated assault in which appellant had allegedly broken his wife’s finger; and (3) that the trial court erred by refusing to allow appellant to make a record of closing remarks, alleged to be prejudicial, made by the prosecuting attorney. There is merit in the first two of these contentions; and, therefore, we reverse and remand for a new trial.

Testimony during trial disclosed that Tanya, a nine year old child, came to visit the McGuire home sometime between 11:00 o’clock, A.M., and 12:30 o’clock, P.M. on May 20, 1978. When she arrived, appellant was target shooting on the back porch and drinking a glass of beer. Tanya spoke with appellant, entered the home, found Mrs. McGuire resting, and returned to the back porch. According to Tanya’s testimony, appellant then moved his hand under her shorts and patted her buttocks.

This testimony was denied by appellant. He was asked, on cross-examination, if he had been drinking that day and responded: “I had one drink while Tanya was there, yes, and the first drink I had that day, I may add.” He also denied having experienced lapses of memory. Mrs. McGuire testified as a defense witness to what she had overheard while Tanya and appellant were talking on the back porch. On cross-examination, the prosecuting attorney, over objection, exceeded the scope of direct examination and questioned Mrs. McGuire regarding appellant’s alleged prior lapses of memory. When Mrs. McGuire denied knowledge of any memory lapses, the prosecuting attorney asked: “Did you ever tell anyone that your husband had broken your finger and the next day he didn’t even remember about it?” After an objection had been overruled and a motion for mistrial denied, the witness answered that she didn’t recall ever telling anyone of such an event. Still later, the District Attorney asked her if she had told a policeman that appellant had come home at 9:30 “and started drinking whiskey and kept drinking the rest of the day.” There followed a series of questions, not supported factually by any evidence, which assumed that appellant had been drinking whiskey, that he had had a bottle and that he had been drinking all day.

On rebuttal, the Commonwealth called a witness who testified, over objection, that Mrs. McGuire had told her that appellant “had been drinking all day,” and a policeman who testified that Mrs. McGuire told him that appellant “drank heavy all day.”

Although the prosecuting attorney neither offered to prove nor proved that appellant had been intoxicated and despite counsel’s contention at the time of offering the evidence that appellant’s drinking was relevant solely to attack appellant’s credibility, the trial court instructed the jury as follows:

Now, I must say this to you, this man is not being tried for drinking. Some of you may have a built-in objection to the use of intoxicating liquor, you will have to put that aside. The only reason I permitted the evidence of drinking to come in is to what extent it may have affected the Defendant, because, of course, sometimes alcohol could be a reason for a person doing something that under other circumstances he may not have done, and I think that was relevant on that point. Now, this is not to say I am telling you at that time he was intoxicated or not in full possession of his faculties. That is up to you, you are the fact finders. I merely want to explain to you the reason that evidence was permitted. (N.T. 192-193)

Defense counsel excepted to the charge on the grounds that evidence of drinking had been admitted only on the issue of credibility and not as evidence that appellant was acting under the influence of alcohol at the time of the alleged assault. The court then supplemented its charge as follows:

I mentioned drinking, and I mentioned the fact that the evidence was only to indicate to what extent it might have affected the Defendant, or Defendant’s conduct, and I will say to you that if you think it was offered for some other purpose, or some other effect, that is up to you, I did not mean to tell you, I was merely trying to explain why the drinking was allowed in at all, because if some of you had a built-in objection to the use of alcohol, I wanted to explain that you had to put that aside, and the only reason for the admission was it was in evidence and it is up to you to determine what effect, if any, the consumption of alcohol might have had. Swear the Officers. (N.T. 197)

The cross-examination of Mrs. McGuire was clearly improper. Cross-examination is limited by the scope of the witness’ direct examination. Commonwealth v. Holland, 480 Pa. 202, 216, 389 A.2d 1026, 1032 (1978); Commonwealth v. Frazier, 467 Pa. 505, 507, 359 A.2d 390, 391 (1976); Commonwealth v. Cheatham, 429 Pa. 198, 202-203, 239 A.2d 293, 296 (1968). Mrs. McGuire had been called as a defense witness solely for the purpose of recounting her recollection of Tanya’s visit. Thus, it was improper to permit cross-examination regarding an alleged statement pertaining to an unproved incident in which appellant supposedly broke his wife’s finger and was unable to remember it.

It was also improper for the questioner to imply that appellant had previously committed an assault on his wife. The law is clear that “the credibility of a witness may not be assailed by questions which develop instances of misconduct unrelated to the issue on trial.” Commonwealth v. Morrison, 157 Pa.Super. 366, 368, 43 A.2d 400, 401 (1945). See also Commonwealth v. Gaddy, 468 Pa. 303, 311-312, 362 A.2d 217, 221 (1976); Commonwealth v. Katchmer, 453 Pa. 461, 464-465, 309 A.2d 591, 593 (1973); Commonwealth v. Cragle, 281 Pa.Super. 434, 422 A.2d 547 (1980); Commonwealth v. Grimm, 249 Pa.Super. 441, 446, 378 A.2d 377, 379-380 (1977). The trial court attempted to justify the inquiry regarding the breaking of Mrs. McGuire’s finger on the basis that it was “as likely that the allegedly broken finger resulted from conduct that was not even negligent as it [was] that the broken finger resulted from criminal conduct.” The incident, whether accidental or intentional, was irrelevant to the issues at trial and served only to damage appellant’s character in the eyes of the jury. The inquiry was improper and prejudicial and, therefore, should not have been permitted. See Commonwealth v. Stanley, 484 Pa. 2, 398 A.2d 631 (1979); Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976).

It was also error to permit Mrs. McGuire to be cross-examined regarding appellant’s consumption of alcohol and then, after she had denied knowing of more than one drink, to receive testimony on rebuttal from witnesses who attributed to Mrs. McGuire’s statements that appellant had been drinking all day. At trial, the Commonwealth contended that the cross-examination of the witness regarding appellant’s drinking was proper to attack (a) the credibility of the wife-witness and (b) the ability of appellant to remember the events of the day in question. The cross-examination cannot be justified on either grounds.

Intoxication on the part of a witness at the time of an occurrence about which a witness has testified is a proper matter for the consideration of a jury as affecting his or her credibility. Commonwealth v. Duffy, 238 Pa.Super. 161, 173, 353 A.2d 50, 57 (1975); Commonwealth v. Dreibelbis, 217 Pa.Super. 257, 260-261, 269 A.2d 387, 389 (1970); Common wealth v. Godfrey, 177 Pa. Super. 640, 644, 112 A.2d 434, 436 (1955); Commonwealth v. Rouchie, 135 Pa.Super. 594, 604, 7 A.2d 102, 107 (1939). However, it is not merely the consumption of alcohol that is relevant to attack the credibility of a witness. “[T]he fact that a person drinks does not impeach his credibility; evidence of drinking is admissible only because it lays a foundation for an opinion of the intoxication of the witness.” In Interest of Wright, 265 Pa.Super. 278, 288-289, 401 A.2d 1209, 1214 (1979) (emphasis in original). “Whether one may have partaken of some liquor is not the test of one’s credibility and is the type of question, whether answered in the affirmative or negative, that may create in the minds of some jurors a most unfavorable inference.” Commonwealth v. Godfrey, supra, 177 Pa.Super. at 644, 112 A.2d at 436.

The cross-examination of Mrs. McGuire regarding appellant’s drinking cannot be justified as an attempt to attack her credibility. Her direct testimony had not contained any reference to the consumption or non-consumption of alcoholic beverages by appellant. Therefore, to ask on cross-examination whether she had told a policeman that appellant came home and started drinking heavily was improper. The statement which the prosecuting attorney sought to attribute to the witness was not inconsistent with any prior testimony which the witness had given. The only purpose of this question, it now seems clear, was to prejudice appellant by implanting in the minds of the jurors that appellant had been drinking on the day of the alleged offense, both before and after its occurrence. This was clearly improper.

The prejudice was compounded when, although there was no substantive evidence whatsoever that appellant had been drinking heavily or was intoxicated, the trial court instructed the jury that the use of intoxicating liquor “could be a reason for .. . doing something that under other circumstances he may not have done,” and left to the jury to determine whether appellant “was intoxicated” or “what effect, if any, the consumption of alcohol may have had.”

The Commonwealth concedes that the only suggestion of heavy drinking came (a) from the prosecuting attorney’s questions and (b) from the hearsay statements attributed to Mrs. McGuire, over objection, by the Commonwealth’s rebuttal witnesses. Nevertheless, the Commonwealth contends that these prior statements of Mrs. McGuire could be considered by the jury as substantive evidence. This is not a correct statement of the law. It has long been the law in Pennsylvania that prior inconsistent statements of a non-party witness are not admissible as substantive evidence of the truth of the matters asserted therein. See Commonwealth v. Russell, 456 Pa. 559, 565-566, 322 A.2d 127, 130-131 (1974); Commonwealth v. Tucker, 452 Pa. 584, 590 n.2, 307 A.2d 245, 248 n.2 (1973); Commonwealth v. Commander, 436 Pa. 532, 541-542, 260 A.2d 773, 778 (1970); Commonwealth v. Blose, 160 Pa.Super. 165, 172, 50 A.2d 742, 745 (1947). Although a contrary statement appears in Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979), decided after appellant’s trial, this statement has been disapproved by the Supreme Court. “[S]uch has never been and is not now the law in this Commonwealth.” Commonwealth v. Waller, 498 Pa. 34, 39 n.2, 444 A.2d 653, 656 n.2 (1982) (emphasis supplied).

Appellant was entitled to insist that the Commonwealth prove his guilt “by competent evidence in strict compliance with the law, unaffected by implication or innuendo flowing from collateral matters.” Commonwealth v. Steinberg, 189 Pa.Super. 381, 385-386, 150 A.2d 131, 133 (1959). The Commonwealth, in the instant case, improperly sought to strengthen the impact of its evidence by collateral and irrelevant matters intended to persuade the jury that appellant was neither a caring husband nor an abstaining and reputable citizen. Neither was relevant to the crime charged.

The judgment of sentence is reversed, and the matter is remanded for a new trial.

CERCONE, President Judge, concurs in the result.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 6301.

      . The trial judge became ill and died before post trial motions had been decided.