author: DEL SOLE, Judge:

text:
    674 A.2d 1127
    Dennis R. BROWNE and Sharon Browne, his wife, Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1995.
    Filed April 18, 1996.

      Lawrence J. Neary, Harrisburg, for appellants.
    Douglas Johnson, Reading, for appellee.
    Before DEL SOLE, SAYLOR and HESTER, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order which granted a motion to Correct/Vacate an Arbitration award. The court reduced the arbitration award by $186,727.00, which it found was the amount of Social Security disability benefits that had been paid or were payable to Appellants. We reverse and direct the court to reinstate the arbitration award.

Appellants are the insureds under a policy issued by Appellee, Nationwide. A claim against Nationwide was made by Appellants for Uninsured Motorist Benefits as a result of an automobile accident which occurred in 1992 and injured Appellanf/husband. When the parties were unable to agree on the amount of benefits due, the matter was arbitrated in accordance with the terms of the policy which called for arbitration of disputes under the Pennsylvania Arbitration Act of 1927, 5 P.S. 146, et seq., repealed. An award for Appellants was made with a specific notation that it included an offset for particular items, but that an offset was not made for Social Security benefits paid or payable. One arbitrator dissented from the portion of the award which did not deduct Social Security disability benefits. The Arbitrators later issued a clarification of their award in response to a request by Nationwide. Thereafter, Nationwide filed a Motion to Correet/Vacate the Arbitration Award to which an Answer was filed and oral argument was presented. The sole issue before the court was whether Social Security disability benefits should be deducted from the arbitration award under the terms of § 1722 of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. 1701 et seq. The court ruled that Social Security disability benefits paid and payable to Appellants must be deducted from the award, and reduced the arbitrators’ award accordingly. We reverse.

At issue is the language of § 1722 and the recovery of Social Security disability payments.

§ 1722. Preclusion of recovering required benefits
In any action for damages against a tortfeasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or worker’s compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or worker’s compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719.

75 Pa.C.S.A. § 1722.

In interpreting § 1722 to determine whether Social Security disability payments were encompassed in the language of “any program, group contract or other arrangement” the trial court looked to the language of § 1719 and a decision of this court which concerned application of § 1719. Section 1719 entitled “coordination of benefits” states in relevant part:

(a) General rule. — Except for workers’ compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits [medical]) 1712(1) and (2) (relating to availability of benefits [medical and income loss]) or 1715 (relating to the availability of adequate limits [medical, income loss, accidental death and funeral]) shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits provided in section 1711, 1712 or 1715 or workers’ compensation.
(b) Definition. — As used in this section the term “program group contract or other arrangement” includes, but is not limited to, benefits payable by a hospital plan corporation or a professional health service corporation....

75 Pa.C.S.A. § 1719.

Noting that Social Security disability benefits are not specifically mentioned in either § 1722 or § 1719, the trial court was guided by this court’s decision in Panichelli v. Liberty Mutual Insurance Co., 435 Pa.Super. 290, 645 A.2d 865 (1994). Therein the plaintiff sought to collect income loss benefits but his insurer claimed that it was entitled to set offs for sick time payments received by plaintiff from his employer and Social Security benefits that plaintiff was receiving. The Panichelli court concluded that § 1719 must be interpreted to take into consideration programs for the payment of income loss benefits. The court ruled that the plaintiff was entitled to recover income loss benefits from the defendant without deduction for sick pay benefits and Social Security benefits he received. The court reasoned: “Mr. Panichelli has ‘paid’ for the sick pay benefits and social security benefits he has received. The social security benefits come at the expense of a payroll tax deduction and sick pay is a benefit employers factor in when setting wages for employees. Accordingly, any ‘double dipping’ has come at the expense of some form of payment by the claimant for each type of recovery.” Id. at 296, 645 A.2d at 868.

The Supreme Court reviewed the Panichelli decision and affirmed. Panichelli v. Liberty Mutual, 543 Pa. 114, 669 A.2d 930 (1996.) The Supreme Court concurred with the Superior Court’s determination that the receipt of both employer provided sick leave benefits and social security disability benefits, as well as full income loss benefits does not result in “double dipping.” Id. at 118, 669 A.2d at 932. The court concluded that both sick pay and social security benefits programs must be construed as providing benefits in excess of and not in duplication of, income loss benefits. Id.

Because of the reference in § 1722 to § 1719, the trial court determined that the Social Security disability payments received in this case were benefits under “any program, group contract or other arrangement for the payment of benefits as defined in section 1719”. Thus the court reasoned under § 1722 Appellant was precluded from recovering income loss benefits in that amount. The problem with the trial court’s reasoning is that it does not look to other related sections of the Motor Vehicle Responsibility Law and does not consider the reasoning behind the decisions in Panichelli.

This same language, concerning any “program, group contract or other arrangement,” is also contained in 75 Pa.C.S.A. § 1720. Section 1720 eliminates subrogation and provides:

In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits, benefits available under section 1711 (relating to required benefits), 1712 (relating to availability of benefits) or 1715 (relating to availability of adequate limits) or benefits paid or payable by a program, group contract or other arrangement whether primary or excess under section 1719 (relating to coordination of benefits).

75 Pa.C.S.A. § 1720.

Section 1720 clarifies that no subrogation will inure to payors of benefits similar to those benefits available under auto insurance.' Previously, employers or insurers were entitled to subrogate their claims in third party tortfeasor actions. In such instances group health insurers which provided benefits were permitted to seek subrogation when the insured brought a third party tortfeasor action. The legislative pronouncement in § 1720 eliminates the right of subrogation. Section 1722, in effect, compensates for this adjustment by prohibiting those injured from recovering these same benefits. Thus, where benefits similar to those found in an auto insurance policy were once recoverable but then later subject to subrogation, now under § 1722 they simply cannot be recovered, thereby eliminating the need for subrogation. In Section 1722 the legislature has precluded recovery, where in the past subrogation resulted in a reduction of the recovery by requiring a payback by the injured party. The changes brought about in § 1720 and § 1722 have zero net effect on the injured party.

Because Social Security disability benefits were never subject to subrogation they do not fall within the purview of Sections 1720 and 1722. Historically they have not been viewed as an item for which a traditional tort award would be reduced. Had the legislature wished to include Social Security disability payments within the preclusions of § 1722 it could have specifically named these payments, as was done with workers’ compensation benefits. Section 1722 was obviously designed to refer to only those benefits which are specifically recoverable as first party benefits under the MVFRL, 75 Pa.C.S.A. § 1701 et seq., or which had historically been subject to subrogation. ' Social Security disability payments do not fit within either category.

Our conclusion is in keeping with the reasoning behind the decision in Panichelli. It was noted that Social Security disability benefits are benefits for which the employee has paid in the form of payroll deductions. The receipt of these benefits by the plaintiff in Panichelli, and their receipt in this case, do not constitute “double dipping.” Appellant has paid for these benefits throughout his working career and has paid a separate premium to be compensated for all loss caused by an uninsured motorist. Recovery of both is not duplicative. Rather it is fair and contemplated by the terms of the MVFRL.

Accordingly we conclude that the arbitrators did not err when they refused to make an offset for Social Security disability benefits “paid or payable.” The trial court’s ruling deducting these benefits is reversed and the court is ordered to reinstate the award of the arbitrators.

SAYLOR, J., concurs in the result.

      . An agreement which provides for Arbitration under the Act of 1927 permits modification or correction of an arbitration award where it is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict. See 501(b) of the Act of 1980 set forth in the historical note immediately following 42 Pa.C.S.A. § 7302. See also Selected Risks Ins. Co. v. Thompson, 363 Pa.Super. 34, 525 A.2d 411 (1987), affirmed in part, reversed in part, 520 Pa. 130, 552 A.2d 1382 (1989).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    674 A.2d 1130
    Dennis and Rita BROWN, H/W v. PHILADELPHIA COLLEGE OF OSTEOPATHIC MEDICINE and Dr. Harvey Bryant. Appeal of PHILADELPHIA COLLEGE OF OSTEOPATHIC MEDICINE.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1995.
    Filed April 18, 1996.

      Angela L. Dumm, Philadelphia, for appellant.
    Gary S. Dion, Philadelphia, for appellees.
    Before McEWEN, CIRILLO and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This appeal involves a claim for negligent infliction of emotional distress originally brought by Rita Brown, appellee herein, and her husband, Dennis Brown, against Philadelphia College of Osteopathic Medicine (“PCOM”), appellant herein, and Dr. Harvey Bryant. On April 15, 1993, default judgment was entered against Dr. Bryant due to his failure to enter an appearance. No damages, however, were assessed against Dr. Bryant. Following the conclusion of a subsequent three-day bench trial on October 27,1994, judgment was rendered in favor of appellee and against appellant for $40,000. Thereafter, appellant filed a motion seeking judgment notwithstanding the verdict or, alternatively, a new trial. Presently, appellant appeals the trial court’s denial of such request.

The facts upon which appellee was allowed recovery for her claim of negligent infliction of emotional distress were adequately summarized by the trial court as follows:

In September of 1990, the Browns discovered [that] Mrs. Brown was pregnant. They chose Dr. Harvey Bryant as Mrs. Brown’s Obstetrician-Gynecologist, and registered with the Labor and Delivery Department of PCOM. On December 27, 1990[,] Mrs. Brown, who was approximately 16 weeks pregnant, began experiencing difficulties with the pregnancy. Mrs. Brown contacted Dr. Bryant and, in compliance with his instructions, went to PCOM and was seen in the emergency room. An ultrasound was performed by the attending physician and she was told to return home but to come back to the emergency room if complications developed.
On December 28, 1990 at approximately 3:00 p.m.[,] Rita, accompanied by her husband, arrived at the emergency room of PCOM, complaining of vaginal bleeding, severe abdominal pain and nausea. Sometime between 3:20 p.m. and 3:45 p.m.[,] Mrs Brown was placed in an examining room. While in the examining room, Mrs. Brown’s condition worsened and at approximately 5:10 p.m. she experienced a miscarriage.
Mrs. Brown testified that she remained in the examining room for approximately one hour and 15 minutes before being seen by a physician. During that time she continued to experience increased vaginal bleeding, abdominal pain and nausea. Mrs. Brown further testified that [, during this period,] she miscarried with only her husband present and that the fetus remained between her legs, in a pool of blood, for approximately 15 minutes. At that time, Dr. Robert F. Sing appeared, cut the umbilical cord and placed the fetus in a pan. A nurse [then] placed the fetus in Mrs. Brown’s arms and took photographs of the fetus and Mrs. Brown. Dr. Sing testified that this was done to “alleviate their stress” and to “help them bond.” (N.T. Oct. 1994, p. 136.)

Trial court opinion, 7/19/95 at 2-3.

In rendering its verdict in favor of appellee, the trial court applied the principles set forth by our Supreme Court in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Sinn established the standard for liability in cases founded upon an individual’s personal observation of a physical injury negligently inflicted by another upon a third person. See Nagy v. Bell Tel. Co. of PA., 292 Pa.Super. 24, 436 A.2d 701 (1981) (citing Sinn, supra); Hoffner v. Hodge, 47 Pa.Commw. 277, 407 A.2d 940 (1979). The standard adopted in Sinn is based upon the concept of reasonable foreseeability and, in determining whether liability attaches, requires an analysis of the following three factors:

(1) Whether [the] plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon [the] plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether [the] plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 194, 527 A.2d 988, 993 (1987) (citing Sinn, supra). This has become known as the “bystander rule.” Based upon our review of the facts in this case, however, it is evident that we are not here presented with such a situation.

The trial court described the circumstances upon which liability was established as follows:

[Appellee] presented herself at the hospital, had a miscarriage and was the one who experienced the negligent treatment of the physician and hospital staff.
[Appellee] experienced much more than a “sensory and contemporaneous observation of the incident.” The alleged incident occurred to [appellee’s] body. Not only did she witness the incident, she also physically felt the incident as it occurred.
[I]t is hard to imagine a closer relationship than that between a mother and her fetus. They are intertwined within one body. Théir lives are separate but one.

Trial court opinion, 7/19/95 at 5 (emphasis added). Admittedly, we find this language to be the source of some confusion. It is clear that the lower court initially concluded that the negligent incident giving rise to liability was not one observed by appellee but, instead, one committed upon her person. Later, however, this finding was qualified, apparently in an attempt to make the facts of this case susceptible to an analysis under the bystander rule, by the suggestion that the negligent act was the mishandling of the fetus as a separate individual. Since an analysis of appellee’s right to recovery depends upon this distinction, we must first identify the nature of the negligent act.

Based upon our review of appellee’s averments in her complaint and viewing the facts of the treatment she received as a whole, we find that appellant’s failure to treat appellee in a timely fashion and with due care constituted a tort inflicted upon appellee herself. For example, appellee’s complaint alleges that appellant was negligent in failing to take appropriate precautions relating to her care and comfort and, further, that appellant did not adequately monitor and console her. Moreover, the handing of the fetus to appellee and the taking of photographs is relevant since it resulted in exacerbating appellee’s suffering. Therefore, the trial court’s application of Sinn, supra, was erroneous.

In its first contention, appellant argues that no two reasonable minds could fail to agree that the verdict was improper since, under the laws of this Commonwealth, the factual record does not support a claim for negligent infliction of emotional distress. Appellant bases this assertion upon the claim that, since the pronouncement of Sinn, Pennsylvania courts have only allowed recovery on claims for negligent infliction of emotional distress outside of the bystander context on two occasions. Appellant argues that to permit recovery of damages in this case would, therefore, be inappropriate and urges us to grant its request for judgment notwithstanding the verdict.

In reviewing an order denying judgment notwithstanding the verdict, it is our duty to determine whether there was sufficient competent evidence to sustain the verdict. Armstrong v. Paoli Memorial Hosp., 430 Pa.Super. 36, 633 A.2d 605 (1993), alloc. denied, 538 Pa. 663, 649 A.2d 666 (1994). Judgment notwithstanding the verdict should be entered only in a case where, granting the verdict winner the benefit of every favorable inference reasonably drawn from the evidence, the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Id.

Although there exists consensus on the permissibility of recovery for negligent infliction of emotional distress based upon the bystander rule, a close inspection of the cases in this Commonwealth reveals inconsistencies in the theories upon which a cause of action for negligent infliction of emotional harm outside of the context of bystander liability can be predicated. These inconsistencies represent differences in the substantive elements that must be proven to make out a claim.

After a review of this inconsistent caselaw, we find that Judge Brosky, in his opinion in Stoddard v. Davidson, succinctly set forth the proper methods under which a cause of action for negligent infliction of emotional harm will be sustained.

[A] cause of action for negligent infliction of emotional distress initially required a physical impact. That element was declared not essential in Niederman[ v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) ] if the plaintiff was in the zone of danger. Finally, the plaintiffs presence within that zone was held to be not necessary subject to the [applicability of Sinn, supra ], Niederman and Sinn are, thus, two alternate methods to establish a case for negligent infliction in the absence of physical impact. However, impact remains the basic means to plead the cause of action. Potere v. City of Philadelphia, 380 Pa. 581, 589, 112 A.2d 100, 104 (1955). If impact is averred, the requirements of either Niederman or Sinn simply are not necessary.

355 Pa.Super. 262, 266, 513 A.2d 419, 422 (1986). The “physical impact rule” and “zone of danger rule”, as they have come to be known, provide, therefore, two circumstances under which recovery will be permitted for negligent infliction of emotional distress outside of the bystander context.

The continued validity of the physical impact rule finds support in a number of cases. In Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992), the plaintiff was a trainee at a fire-fighting school and, during a simulated fire-fighting exercise, had put on an air pak which had been mistakenly filled with carbon monoxide instead of oxygen. The plaintiff suffered injuries as a result of his inhalation of the carbon monoxide and, thus, sought recovery from Mine Safety Appliance Corporation, the manufacturer of the air pak. Since liability was admitted by the defendant, the case went to the jury solely on the issue of damages. Our Supreme Court held that, because plaintiff had suffered physical injury, albeit relatively minor, “[a]ll of the consequent psychological and emotional pain and suffering [was] compensable ... under the so-called ‘impact rule.’ ” Id. See also Carson v. City of Philadelphia, 133 Pa.Commw. 74, 574 A.2d 1184 (1990) (a physical impact analysis was performed to determine entitlement to relief on a claim for negligent infliction of emotional distress); Tomikel v. Com., Dept. of Transp., — Pa.Commw. —, —, 658 A.2d 861, 864 (1995) (“Where it is definitely established that injury and suffering were proximately caused by an act of negligence, and any degree of physical impact, however slight, can be shown, recovery for such injuries and suffering is a matter for the jury’s determination”). Indeed, when our Supreme Court set forth the zone of danger rule in Niederman, it indicated that the physical impact rule was not intended to be entirely abrogated:

We today choose to abandon the requirement of physical impact as a precondition to recovery for damages proximately caused by the tort in only those cases ... where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact.

Niederman, 436 Pa. at 413, 261 A.2d at 90 (emphasis added).

While the above-cited cases have explicitly recognized the continued validity of the impact rule as a basis on which to establish a prima facie case of negligent infliction of emotional distress, other cases appear to have held to the contrary. Most recently, in Hunger v. Grand Central Sanitation & Gary Perin, this Court stated that:

[a] cause of action for negligent infliction of emotional distress exists in only two circumstances: 1) where a close family member experiences a contemporaneous sensory observance of physical injuries being inflicted on another family member, Krysmalski v. Tarasovich, 424 Pa.Super. 121, 622 A.2d 298 (1993); or where the plaintiff nearly experiences a physical impact in that he was in the zone of danger of the defendant’s tortious conduct, Kazatsky v. King David Memorial Park, Inc., supra.

447 Pa.Super. 575, 670 A.2d 173 (1996) (emphasis added). Further, certain cases such as Hoffner v. Hodge, 47 Pa. Commw. 277, 407 A.2d 940 (1979), even suggest that the zone of danger test is no longer valid. In Hoffner, the Commonwealth Court stated that

Niederman, supra, no longer represents the law of the Commonwealth in [the area of negligent infliction of emotional distress]. In an attempt to eliminate the “arbitrariness” inherent in the “zone of danger” test, the Supreme Court substituted therefor an analysis based on the traditional tort law concept of foreseeability.

Id. (citations omitted). Additionally, in Neff v. Lasso, 382 Pa.Super. 487, 555 A.2d 1304 (1988), a panel of this Court stated that the zone of danger test had been abandoned upon the acceptance of the bystander rule.

Most troubling in this regard, however, is Armstrong, supra. In Armstrong, a panel of this Court attempted to address the issue of “whether Pennsylvania recognizes an independent tort of negligent infliction of emotional distress.” In doing so, the Court stated:

When we look at Pennsylvania appellate cases ... it becomes clear that Pennsylvania allows recovery for negligent infliction of emotional distress under two circumstances. First, and most commonly, in cases in which there is liability to a bystander. Sinn v. Burd, supra, and its . progeny. Second, Pennsylvania also recognizes recovery in situations in which there is a contractual or fiduciary duty. Crivellaro [v. Pennsylvania Power and Light, 341 Pa.Super. 173, 491 A.2d 207 (1985).]

Armstrong, 430 Pa.Super. at 47-55, 633 A.2d at 611-615 (footnote omitted). Accordingly, Armstrong appears to have restricted recovery in cases not involving the bystander situation to those in which there is a breach of an underlying contractual or fiduciary duty. Our reading of Armstrong would seem to indicate, therefore, that the zone of danger and physical impact rules are no longer applicable. In a concurring opinion in Hunger, supra, Judge Beck, agreed with the contractual relationship based theory of Armstrong as a valid basis upon which an action for negligent infliction of emotional distress could be based, but also noted the continuing validity of the bystander and zone of danger rules.

Finally, certain cases suggest that the bystander rule is the only basis upon which a cause of action for negligent infliction of emotional distress may be based. See, e.g., Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 546 A.2d 1168 (1988) (the parameters for pleading a cause of action for negligent infliction of emotional distress are set forth under the bystander rule).

Clearly, there is confusion as to the bases upon which relief can be sought and, unfortunately, this area of the law will remain unsettled until our Supreme Court provides further guidance. Nevertheless, we believe that our position in this case, acknowledging the continuing validity of the physical impact rule, is appropriate. Applying this rule to the instant case, we find that, while appellee was not entitled to recovery under Sinn, the impact rule entitles her to the recovery granted by the trial court. The impact rule has been stated as follows:

[W]here ... a plaintiff sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering directly traceable to the peril in which the defendant’s negligence placed the plaintiff, then mental suffering is a legitimate element of damages.

Potere, 380 Pa. at 588, 112 A.2d at 104. Accord, Stoddard, supra. A legal duty of care is owed by hospitals to persons receiving emergency room treatment. Riddle Memorial Hosp. v. Dohan, 504 Pa. 571, 573, 475 A.2d 1314, 1316 (1984). We believe that the finding of a breach of this duty provides a sufficient basis for recovery by appellee. Instantly, appellant’s breach of this duty resulted in a physical impact upon appellee in that she experienced physical harm during her miscarriage as a result of appellant’s failure to attend to her and, further, was physically impacted when she was given the fetus to hold. While this impact was not directly with appellant, it constitutes sufficient physical impact under Stoddard, supra. In Stoddard, the jostling and jarring of an automobile’s occupants while it drove over a corpse was held to be sufficient physical impact. See also Zelinsky v. Chimics, 196 Pa.Super. 312, 175 A.2d 351 (1961).

We next address appellant’s remaining two claims underlying its contention that the trial court erred in denying its request for judgment notwithstanding the verdict. We find appellant’s first argument that appellee was required and failed to establish the requisite negligence, to be devoid of merit. Appellant claims that the duty upon appellee to show that it was negligent is tantamount to a duty to prove medical malpractice underlying the events in the instant case. Based upon this allegation, PCOM argues that it was incumbent upon appellee to introduce expert testimony to show that PCOM’s conduct diverged from acceptable practices under the circumstances presented. While we agree that the issue of whether appellant was negligent in failing to provide timely emergency room care to appellee is one dealing with medical malpractice, we are not persuaded by appellant’s argument.

There is an exception to the general rule requiring expert testimony to establish negligence in malpractice actions when “the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even non[-]professional persons.” Brannan v. Lankenau Hosp., 490 Pa. 588, 417 A.2d 196 (1980). We find that, in light of the circumstances of this case, it is clear that the issue of whether appellant was negligent in treating appellee was an issue ■within the range of the ordinary experience and comprehension of non-professionals; therefore, expert testimony was not required in this case. The negligent treatment of appellee comprised appellant’s failure to attend to her in a timely fashion and appellant’s presentation of the fetus to her for purposes of taking a photograph.

Next, appellant alleges that appellee failed to satisfy her burden of establishing that she suffered physical injuries as a result of the emotional distress. In determining whether appellee sustained the requisite physical injuries, we are guided by the Restatement (Second) of Torts § 436A which states:

Section 436A Negligence Resulting in Emotional Disturbance Alone
If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

Further, comment c to this provision provides:

[L]ong continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued emotional disturbance, as for example in the case of repeated hysterical attacks, or mental aberration may be classified by the courts as illness, notwithstanding their mental character.

We have interpreted this provision as follows:

Relying on Comment c to § 436A, a panel of this court held that “symptoms of severe depression, nightmares, stress and anxiety, requiring psychological treatment, and ... ongoing mental, physical and emotional harm” sufficiently stated physical manifestations of emotional suffering to sustain a cause of action. Love v. Cramer, 414 Pa.Super. 231, 606 A.2d 1175 (1992). Cases which the Crivellaro court collected from other jurisdictions cite depression, nightmares, nervousness, insomnia and hysteria as physical symptoms warranting recovery. Crivellaro, 341 Pa.Super. at 180, 491 A.2d at 210.

Armstrong, 430 Pa.Super. at 43, 633 A.2d at 609. The trial court adequately addressed the issue of appellee’s physical harm in the present case as follows:

In the instant case, [appellee] did testify to harm as a result of the emotional distress. [Appellant’s] contention that [appellee] failed to testify to bodily harm is devoid of merit as evidenced by the notes of testimony and the psychiatric report. [Appellee] testified that since the incident she has experienced knots in her stomach, nightmares, low self-esteem, and is easily frightened (N.T. Oct. 1994, pp. 196-202). These problems have prompted her to investigate professional counseling options. Richard B. Saul, M.D., who evaluated [appellee] thirteen months after the incident, confirmed [appellee] is experiencing ongoing mental and physical harm as a result of the incident. His report concludes, “it is my opinion with a reasonable degree of medical certainty that because of the treatment she received during a very traumatic period when she was aborting that she now suffers from Major Depression.”
Certainly [appellee] meets, if not exceeds, the compensable damage requirements necessary to allege negligent infliction of emotional distress as set forth by comment c of the Restatement (Second) of Torts.... [Appellee’s] symptoms were not merely transitory, they were apparent to the medical doctor over one year after the incident. [Appellee] continues to suffer from weight gain, sexual difficulties, anxiety, nightmares and loss of self-confidence attributable to the emotional distress caused by her emergency room visit.

Trial court opinion, 6/30/95 at 7-8. Viewing trial court findings in accordance with the precedent set forth above, we do not find that judgment notwithstanding the verdict is warranted. Armstrong, supra.

Lastly, appellant advances three claims in support of its contention that the trial court erred in denying its motion for a new trial. The trial court has inherent power to grant a new trial and the power to grant or deny a motion for a new trial lies within the court’s discretion, and that court’s decision will not be overturned on review unless the court acted capriciously or palpably abused its discretion. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). Moreover, “[i]t should be obvious that where, as here, the trial court sat as finder of fact in a non-jury proceeding, its authority to grant a new trial to correct an error of law or an injustice is enhanced, and the appellate court’s authority to override the trial court’s decision is proportionately diminished.” Spang & Co. v. U.S. Steel Corp., 519 Pa. 14, 24-25, 545 A.2d 861, 866 (1988).

First, appellant claims that a new trial is warranted because the lower court failed to properly apportion liability between it and Dr. Harvey Bryant. Instantly, appellant contends that it was inappropriate for the trial judge to assess damages against it alone without first apportioning liability between the two defendants.

The trial judge entered a verdict against appellant in the sum of $40,000 and noted, as follows, that an additional hearing would be necessary to assess damages in the case of Dr. Bryant:

There is one more matter. It doesn’t concern [appellant]. I think in order to assess damages in the case of Dr. Bryant, you have to have a separate procedure and I think you would have to give him notice.

N.T., 10/27/94 at 223.

“It is for the court to determine, as a matter of law, whether multiple defendants are joint tortfeasors.” Ariondo v. Munsey, 122 Pa.Commw. 475, 553 A.2d 94 (1989). The facts in the instant case clearly indicate that appellant and Dr. Bryant were joint tortfeasors. See id.; Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982). Accordingly, appellant and Dr. Bryant are jointly and severally liable for the damages that appellee sustained. For this reason, we believe that it was error for the trial court to assess damages against appellant alone and reserve imposition of damages against Dr. Bryant. Additionally, apportionment remains relevant in cases where joint tortfeasors are jointly and severally liable since, in an action for contribution between the tortfeasors, apportionment determines one defendant’s liability to the other. Ariondo, supra. Accordingly, we remand this case for a determination as to appellee’s total damages and apportionment of such between the joint tortfeasors.

Further, appellant claims entitlement to a new trial based upon the allegation that the trial court precluded appellant from cross-examining appellee regarding her ability to track time. Based upon our review, we find that the trial court did not improperly prevent appellant from pursuing questions regarding appellee’s ability to estimate time and appellant has failed, in its brief, to raise any specific instances of such. Thus, we find this issue to be meritless.

Finally, appellant requests a new trial on the ground that the verdict was against the weight of the evidence. “[A]n appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of the trial judge.” Thompson, supra. Instead, appellate review of the trial court’s grant or denial of a new trial is to focus on whether the trial judge palpably abused his discretion, as opposed to whether the appellate court can find support in the record for the verdict. Id. Instantly, our review of the record reveals no such abuse of discretion on the part of the trial court and, thus, appellant’s final contention fails.

Remanded to the Court of Common Pleas of Philadelphia County for a new trial, limited to the issue of damages and apportionment of liability consistent "with this opinion. Jurisdiction relinquished.

McEWEN, J., dissents.

      . We note, also, that the lower court found in favor of appellant as to Dennis Brown's claim.

      . While one judge in Stoddard concurred in the result and another dissented, we note that the dissent agreed with the legal principles set forth and disagreed solely as to the application of that law to the facts of the case.

      . We note, however that in Kazatsky, supra, which is relied upon in Hunger, supra, our Supreme Court stated that the zone of danger rule is a limited exception to the impact rule whereby the requirement of a physical impact as a precondition to recovery was abandoned in those cases where the plaintiff was in personal danger of physical impact from the negligent force and actually feared physical impact although no physical impact had actually occurred.


author: TAMILIA, Judge:

text:
    674 A.2d 1138
    COMMONWEALTH of Pennsylvania v. Joseph Edward HERON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 18, 1996.
    Filed April 23, 1996.

      Lisa M. Andrejko, Public Defender, Montrose, for appellant.
    Jeffrey B. Snyder, District Attorney, Montrose, for Commonwealth, appellee.
    Before BECK, TAMILIA, and POPOVICH, JJ.
   TAMILIA, Judge:

Joseph Heron, a juvenile, appeals from the Order of Disposition entered on June 1, 1995 following an adjudication of delinquency after appellant was convicted of rape, involuntary deviate sexual intercourse, aggravated indecent assault and indecent assault. Pursuant to the Order, appellant was placed under the “intensive supervision of the Susquehanna County Juvenile Probation Department” subject to the following terms and conditions: 1) appellant shall have no contact ■with children under the age of 14 years old without appropriate adult supervision; 2) appellant shall have .no contact with the victim or her family; 3) appellant shall be responsible for making restitution for counseling to the victim; 4) appellant’s parents shall also be responsible for restitution; 5) appellant shall be responsible for court costs relating to this matter; 6) appellant shall receive individual and family counseling; 7) appellant shall complete 25 hours of community service; and 8) appellant shall not miss more than three days of school for the remaining (1995-1996) school year. See Order, 6/1/95. In addition to the appeal, we have before us a petition for leave to withdraw as counsel filed by appellant’s counsel, Lisa M. Andrejko, which must be decided prior to review of the appeal on its merits.

Appellant’s counsel seeks to withdraw from this appeal pursuant to Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), and its federal precursor Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In order to satisfy the requirements of McClendon and Anders, counsel must: 1) petition the court for leave to withdraw stating that after making a conscientious examination of the record counsel has determined the appeal would be wholly frivolous; 2) notify appellant of the request to withdraw; 3) furnish appellant with a copy of the brief prepared by counsel; and 4) advise appellant of his right to retain new counsel, proceed pro se or raise any additional points that he may deem worthy of consideration. This Court must then conduct its own review of proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous. McClendon, supra at 470-72, 434 A.2d at 1187; see also Commonwealth v. Torres, 428 Pa.Super. 283, 630 A.2d 1250 (1993) (en banc).

On January 26, 1996, counsel filed a petition with this Court averring that her review of the record “demonstrates the absence of any meritorious appellate issues.” Also, the petition avers that “Counsel has communicated with appellant and attempted to explain the absence of any meritorious appellate issues.” Finally, the petition avers that “Counsel has sent to appellant a copy of the instant petition, a copy of the brief filed in this case, and a letter ... explaining the defendant’s right to forward any additional arguments and/or to retain new counsel to represent him.”

Based upon our examination of the record, we find that counsel has failed to comply with the requirements of Anders, McClendon and their progeny. First, Attorney Andrejko has failed to assert, either in her petition or brief, that appellant’s claims on appeal are wholly frivolous. Instead, Attorney Andrejko states only that her review of the record “demonstrates the absence of any meritorious appellate issues” and therefore “she is unable to raise any argument which would permit this Court to grant either a new trial or an arrest of judgment.” (Appellant’s brief at 9.) Our law is crystal clear “that lack of merit in an appeal is not the legal equivalent of frivolity.” McClendon, supra at 471, 434 A.2d at 1187; Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974). As stated in both McClendon and Greer:

Anders appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.

McClendon, supra, citing Greer, supra at 108-109, 314 A.2d at 514.

It is only after all of the requirements attendant to counsel’s request to withdraw are met that a reviewing court will make a full examination of the proceedings and render an independent judgment of whether the appeal is in fact “wholly frivolous”. Commonwealth v. Kennedy, 417 Pa.Super. 154, 157-59, 611 A.2d 1312, 1314 (1992).

Secondly, counsel’s letter “explaining [appellant’s] right to forward any additional arguments and/or to retain new counsel to represent him”, Petition to Withdraw as Counsel at 2, does not specifically advise appellant of his right to proceed pro se, as required by Anders, McClendon and their progeny.

Finally, we note that counsel’s letter was addressed to appellant’s parents. While our courts have not addressed- the question of whom should receive the notice required by Anders and McClendon in a case involving a juvenile, we find an analogous provision in the Juvenile Act, 42 Pa.C.S. § 6301 et seq. Section 6355 of the Act, Transfer to criminal proceedings, regarding notice of a criminal hearing following transfer from juvenile court, provides:

(3) Notice in writing of the time, place and purpose of the hearing is [to be] given to the child and his parents....

Id., § 6355(a)(3) (emphasis added); see also Com. ex rel. Freeman v. Superintendent of State Correctional Institution at Camp Hill, 212 Pa.Super. 422, 429, 242 A.2d 903, 907 (1968) (regarding notice of delinquency hearing, “[d]ue process require[s] ... that notice of the charges be given to the juvenile and to his parents”) (emphasis added).

We find the requirement of the Juvenile Act that notice be given to a juvenile and his/her parents applicable to Anders cases involving juveniles.

Hence, in addition to filing an amended petition alleging frivolity, counsel on remand must notify both appellant and his parents of the request to withdraw, appellant’s right to retain new counsel or proceed pro se, and his right to raise any points he deems worthy of consideration. McClendon, supra at 470-72, 434 A.2d at 1187. Counsel is directed to file within thirty (30) days an amended petition for leave to withdraw complying in all respects with the requirements of Anders.

Case remanded for proceedings consistent with this Opinion.

Jurisdiction retained.

      . 18 Pa.C.S. § 3121.

      . Id., §3123.

      . Id., §3125.

      . Id., § 3126.


author: Porter, J., Head, J.,

text:
    Vivian v. Challenger, Appellant.

      Appeals—Assignments of error—Rulings on evidence.

    1. Assignments of error referring to more than one bill of exceptions, and embracing the testimony of several witnesses violate rule XIV of the Superior Court, and will not be considered.

      Trespass—Punitive damages—Wrongful levy and sale—Judgment— Collateral attack on judgment.

    2. Where a person enters up a judgment on a judgment note against one of three joint owners of certain personal property, and issues execution against the entire property, buys it in at the sale, and converts it to his own use, one of the joint owners in an action of trespass against the plaintiff in the execution will not be permitted to show as a basis for punitive damages that the note upon which the judgment was entered was a forgery.
    3. In such a case the joint owner may maintain the action of trespass against the plaintiff in the execution, and is not under the circumstances subject to the rule that a tenant in common with another of personal property cannot maintain trespass or trover against 'his cotenant in possession. t

      Practice, C. P.—Trial—Damages—Statement of court as to amount of damages by plaintiff.

    4. It is reversible error for a trial judge to mention in the presence of the jury the amount of damages which the plaintiff claims in his statement.

      Argued March 7, 1910.
    Appeal, No. 12, March T., 1910, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1907, No. 508, on verdict for plaintiff in case of Henry Vivian, by his next friend Eliza Thomas, v. William Challenger.
    Before Rice, P. J., Henderson, Or-t.adt, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass for wrongful conversion of personal property. Before (Ferris, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $700 punitive damages and $150 for value of personal property converted.

      Errors assigned were (1-9) various rulings on evidence and instructions sufficiently set forth in the opinion of the Superior Court.

      B. B. Jones, with him Charles A. Shea, for appellant.—
    There is no right in one joint owner in personal property to recover damages in trespass against another joint owner in the same goods, by showing that defendant-rested his title as joint owner on a sheriff’s sale, founded upon a forged note, the said sale never having been set aside at the instance of the execution defendant, or the title to the goods established in any direct proceedings: Lewis v. Smith, 2 S. & R. 142; Thompson’s App., 57 Pa. 175; Crawford v. McDonald, 33 S. W. Repr. 325; Ward v. Taylor, 1 Pa. 238; Stewart v. Stocker, 13 S. & R. 199; Hicks v. Perry, 7 Mo. 346; Rowland’s Est., 4 Clark, 199; Humphreys v. Rawn, 8 Watts, 78; Billings v. Russell, 23 Pa. 189; Shaw v. Levy, 17 S. & R. 99; Shryock v. Buckman, 121 Pa. 248; Evans v. Maury, 112 Pa. 300.
    A joint owner has no right to claim punitive damages for taking the joint property without the joinder of his cotenants, as plaintiffs: Mersereau v. Norton, 15 Johns. 179; Mobley v. Bruner, 59 Pa. 481; Stevens v. Brown, 4 Atl. Repr. 384; McNaughton’s App., 101 Pa. 550; Rowland’s Est., 7 Pa. Law Journal, 312; Agnew v. Johnson, 17 Pa. 373.
    The court erred in stating to the jury that they could award damages for the amount which plaintiff claimed in his pleadings: Bryan v. Acee, 27 Ga. 87; Reese v. Hershey, 163 Pa. 253; Hollinger v. York Rys. Co., 225 Pa. 419.

      Thomas D. Shea, for appellee.
    The appellee was a tenant in common with his mother and brother, in possession of the household goods and the home based upon them, but he never became a tenant in common with Challenger, the appellant, since the latter had only the interest and title of a forger: Mobley v. Bruner, 59 Pa. 481; McCreary v. Ross, 7 Watts, 483; Sommer v. Wilt, 4 S. & R. 19; McBride v. McLaughlin, 5 Watts, 375.
    If any error was committed by the court in stating the amount of the plaintiff’s claim for damages, it was the duty of the appellant to take exception at that time and bring it immediately to the attention of the court: Life & Trust Co. v. Philadelphia, 202 Pa. 78; Kuntz v. R. R. Co., 206 Pa. 162; Carpenter v. Lancaster, 212 Pa. 581; MacKellar v. Seeds, 10 Pa. Superior Ct. 167; Com. v. Price, 15 Pa. Superior Ct. 342; Cox v. Wilson, 25 Pa. Superior Ct. 635; Ross Twp. Road, 5 Pa. Superior Ct. 85.
    December 12, 1910:
   Opinion by

Porter, J.,

The defendant caused a judgment to be entered in the court of common pleas of Luzerne county against Eliza Thomas, under a warrant of attorney contained in a note purporting to have been signed by her. He issued an execution upon this judgment and directed the sheriff to levy upon certain personal property and that property was sold by the sheriff, bought in by the plaintiff in the writ, this defendant, and was subsequently converted by him to his own uses. This action of trespass was subsequently brought by Eliza Thomas on behalf of Henry Vivian, her minor son by a former marriage, alleging that the said Henry Vivian had been the owner of one-third of the said personal property so sold under an execution upon a judgment to which he was not a party. The evidence produced at the trial warranted a finding that Eliza Thomas, the defendant in the execution under which the plaintiff caused the property to be sold, owned only an undivided one-third interest in that property, that Henry Vivian owned an undivided one-third interest therein, and that the other third was owned by the brother of the latter. The jury found the following verdict: “We, the jury, find for the plaintiff Henry Vivian and settle on the amount of $700.00 punitive damages, and $150.00 as the value of the furniture, household goods and chattels seized and sold by the defendant while the property of the plaintiff. The defendant shall pay to the plaintiff the sum of $850.00;” and upon this verdict judgment was entered. The defendant appeals.

The first, second and third specifications of error each, respectively, refer to more than one bill of exceptions and embrace the testimony of several witnesses, thus violating rule XIV of this court, and as a consequence must be considered as waived. The enforcement of the rule of this court does not in this instance work any hardship to the appellant, for the specifications of error above enumerated refer only to the introduction of evidence tending to establish facts, the propriety of submitting which to the jury is raised by the specifications of error founded upon the charge of the court. The court having, under exception by the defendant, permitted the plaintiff to introduce evidence tending to establish that the note upon which the judgment against Eliza Thomas had been entered was a forgery, the defendant was practically compelled to produce evidence showing that her signature was genuine, and did so, and the court then submitted to the jury the question of the validity of the judgment upon which the execution against Eliza Thomas had isr sued. The learned judge, in the instructions which are the subject of the fourth, fifth and sixth specifications of error charged the jury substantially as follows: “If the jury believe from the evidence that the judgment note in question was not signed by Mrs. Daniel Thomas, and that Challenger knew this to be true, then the plaintiff would be entitled not only to compensatory damages, but to punitive damages;” and “If the jury find that the plaintiff is entitled to punitive damages, they may award a sum equal to the total amount of the plaintiff’s claim, to wit; five thousand dollars.” The plaintiff had in writing requested these specific instructions, and got what he prayed for. It is true the court added the qualification that the jury were not bound by the plaintiff’s claim, if they found punitive damages, but that they could not exceed it, and then added, “You may award the sum claimed or you may award any less amount that you think would be proper under the evidence.” That part of the general charge which is the subject of the fourth specification of error embodied instructions similar to those above quoted. The defendant promptly and in proper form took an exception to the charge and to the answers to the points and a bill of exceptions was thereupon sealed by the court, and it is idle to argue that the questions involved were not properly raised in the court below. In determining whether there was error in these instructions of the court, two questions must be considered: (1) Did this plaintiff have standing to question the validity of the judgment entered by the defendant against Eliza Thomas, in the court of common pleas, and (2) was it proper for the court to say to the jury that, if they found Mrs. Thomas did not sign the note, they might find punitive damages, “not exceeding in the aggregate the sum claimed in the statement of the plaintiff’s cause of action, which is five thousand dollars”?

The property right of the plaintiff against which the trespass, if any, was committed, was his undivided one-third interest in personal property, the other two-thirds of which were owned, respectively, by his brother and Eliza Thomas. The ownership of these parties, respectivély, of the property was as tenants in common. They had several and distinct titles and estates, independent of each other, and there was no privity of estate between them: Mobley v. Bruner, 59 Pa. 481. This plaintiff had hot derived title under Eliza Thomas, he did not in any manner represent her estate, and he was not her creditor. The appellee seeks to invoke the principle that the judgments and decrees of courts, procured by actual fraud, are null to the extent of the fraud, as against the party defrauded, and cites Jackson v. Summerville, 13 Pa. 359; Kurtz v. Railroad Company, 187 Pa. 59, and kindred cases. This plaintiff is not, however, within that principle, for while a judgment may be void as against the party defrauded it is valid against all the world beside. A judgment which is void as to creditors, because of fraud and collusion between the plaintiff and defendant therein, is valid as between the parties to it. A fraudulent judgment, like a fraudulent deed, is good against all but the interests intended to be defrauded. There was in this case no suggestion that there had been any collusion between Challenger and Eliza Thomas, for the contention of the plaintiff was that Eliza Thomas had been defrauded by the entry of the judgment. Had the plaintiff shown that he took title under Eliza Thomas, or that he represented her interest, he might have been in a different position. The judgment was a matter which did not concern this plaintiff, but another person; if fraudulent, it was so as to Eliza Thomas alone, and no other person ha'd standing to challenge it in a collateral proceeding: Stewart v. Stocker, 13 S. & R. 199; Billings v. Russell, 23 Pa. 189; Thompson’s Appeal, 57 Pa. 175; Shryock v. Buckman, 121 Pa. 248; Ogle v. Baker, 137 Pa. 378. The jury in this case ought not to have been permitted to pass upon the question of the validity of the judgment against Eliza Thomas or the regularity of the execution which issued upon that judgment.

The averment of the amount of damages in the statement of the plaintiff’s claim is not evidence of the amount due the plaintiff as compensation for an injury, nor can it in any sense be made available as a suggestion of the amount which a defendant should be called upon to pay as punitive damages. When, however, the amount of the damages alleged in plaintiff's statement is read to the jury by the court it is likely to have weight with them, and be considered as evidence, or certainly as the suggestion of a standard for estimating the damages which they may properly award. “That the admonitions by the court that such is not the purpose in stating the amount claimed will not be sufficient to eliminate it entirely from the minds of the jurors. It will remain with them and, consciously or unconsciously, it will influence them in arriving at a conclusion. At all events, as must be conceded, it is entirely improper for the jury to consider the amount of damages claimed in the statement, and this being true, the court should not bring it to the attention of the jury:” Hollinger v. York Railways Company, 225 Pa. 419; Reese v. Hershey, 163 Pa. 253; Quinn v. Philadelphia Rapid Transit Co., 224 Pa. 162. We must, upon both the grounds above stated, hold the instructions of the court below to be erroneous, and the fourth, fifth and sixth specifications of error are sustained.

The ninth specification of error refers to the refusal by the court below of a point submitted by the defendant requesting binding instructions in his favor. The argument submitted upon this specification of error is attempted to be founded upon the principle that a tenant in common with another of personal property cannot maintain trespass or trover against his cotenant in possession, the tenancy in common not being severed or destroyed by the possession of such cotenant. The evidence in this case presents no ground for the application of this principle. Challenger having issued the execution upon his judgment against Eliza Thomas caused the sheriff to levy upon and sell the entire property, not the undivided one-third thereof nor the interest of Eliza Thomas therein, but he sold the property as if the defendant, Eliza Thomas, had been the sole owner, and having purchased it he applied it to his own exclusive use. He asserted an exclusive possession and ownership. This plaintiff was not a party to the. execution under which the property had been sold and had no notice of the sale and the sale did not divest his title. He was the owner of an undivided interest in the property. The defendant had acquired possession, of the property, claimed the exclusive ownership of it and had transferred what had formerly been the joint property to other uses than those for which it had been held by the joint owners. The evidence was sufficient to warrant a finding of these facts, and if that evidence was true, an action of trover would lie for the injury which the plaintiff had sustained: Agnew v. Johnson, 17 Pa. 373. Under our present practice the action of trespass is the form prescribed in all cases in which the action would formerly have been in trover, trespass on the case or trespass vi et armis; and in determining the real character of the action we must examine the statement of the plaintiff. The form of this action is trespass, and the facts set forth in the statement would formerly have sustained an action of trespass on the case, which action the evidence produced would have been sufficient to sustain: Rank v. Rank, 5 Pa. 211. The ninth specification of error is dismissed.

The judgment is reversed with a venire facias de novo.

Head, J.,

concurring:

I fully concur in the judgment of the court, but I cannot accept as sound that portion of the majority opinion which convicts the learned trial judge of error in permitting the plaintiff to prove that the defendant had forged the note which became the effective agency through which he wrought the injury to the plaintiff’s property. The opinion concedes that the record discloses evidence which, when accepted by the jury, would warrant a verdict for compensatory damages. In such a case it is the right of the plaintiff to prove, if he can, that the act of trespass was not the result of a mistake or committed in the honest belief that it was the exercise of a right, but was willful, wanton and intentional, thus laying the foundation for punitive damages.

It is true it was not the name of this plaintiff that was attached to the note and he was not a party to the judgment afterwards entered thereon. No one can deny the; soundness of the well established rule that the validity of a judgment cannot be collaterally attacked by one who is a stranger to it. But it seems plain to me that the proof offered in this case constituted no attack on the validity of the judgment within the meaning of that rule. The record here made would have no relevancy in any proceeding between the parties to the judgment. Its validity or invalidity, inter partes, would be in nowise affected by what was done here. That would have to be determined on its own merits as if this proceeding had never been instituted.

I cannot agree therefore that any proper application of the rule referred to should result in denying to this plaintiff the right to prove, if he can, not only that the defendant did an injury to him or his property; but also that he did it willfully and designedly by forging a note which enabled him to abuse the legal process of the courts to authorize him, apparently under that sanction, to work a wrong he could not otherwise have accomplished.

Rice, P. J., concurs in this opinion.


author:
Orlady, J.,
      Morrison, J.,

text:
    Commonwealth v. Boyle, Appellant.

      Criminal law—Kidnaping—Evidence—Circumstantial evidence—Jurisdiction.

    Where a man and a woman go to a town in Pennsylvania, give themselves out as man and wife, stay there for a time, and then leave, falsely stating that they are going to a distant state, but in fact going to a city in an adjoining state, and thereafter the man returns to the town in Pennsylvania, there kidnaps a boy and takes him to the city in the adjoining state where the woman had prepared lodgings for the boy’s reception, the woman may be convicted of the overt act in Pennsylvania by her own declarations showing knowledge of pre-existing facts and conditions in the Pennsylvania town, and by evidence of the whole course of her connection with the reception, detention and subsequent release of the child, including the fact that the very money that was paid for the release of the child was found after her arrest secreted on her person.
    Argued Oct. 3, 1910.
    Appeal, No. 117, April T., 1910, by defendant, from judgment of O. T. Mercer Co., April Sessions, 1907, No. 41, on verdict of guilty in case of Commonwealth v. Helen Boyle.
    Before Bice, P. J.,. Hendeeson, Moeeison, Oelady, Head and Poetee, JJ.
    Affirmed.
    Indictment for kidnaping. Before Williams, P. J.
    The court charged in part as follows:
    [The testimony shows, and it is uncontradicted, that James Boyle and this defendant came to the home of Mr. Boyle’s mother about Thanksgiving Day, 1908, and remained there until March 12,1909; that neither he nor the defendant were employed at any kind of work during that time; that they seemed to be out of money, or had no money, and that about March 12, and probably prior to that time, they talked about going to Denver, and the testimony shows that this defendant and James Boyle stated to Mrs. Katharine Boyle, the mother of James Boyle, and to Joseph Boyle, a brother, that they were going to Denver. The testimony of Mrs. Katharine Boyle, and possibly that of Joseph Boyle, also seems to show, or does show, that this defendant said a number of times that she was expecting some money from her father, and that she expected to get it about April 15, and this was along up to as late as March 12, 1909.] [23] On March 12 they left, and they told Mrs. Boyle they were going to Denver. Mrs. Katharine Boyle tells you that they had no money to go to Denver, and that she indorsed a note for her son, James Boyle, to get the money from McDowell's bank, with which to pay their fare; that some members of the family accompanied this defendant and James Boyle to an Erie train, in the borough of Sharon, which train went west, toward Cleveland, and would also be going towards Denver for a certain distance; that they both stated there that they were going to Denver, and that that was some time in the afternoon of March 12, 1909. [The next we hear of James Boyle and this defendant they appear at these Granger apartments, in Cleveland, which are owned or rented by Miss Mills, and which Billy called the "hospital.” Miss Mills tells you that on the morning of the thirteenth, which would be the morning after the afternoon they left Sharon stating to their friends and the family of the Boyles that they were going to Denver, they appeared at these apartments and wanted a suite of rooms; that she showed them this suite, and they made some inquiry as to whether there were any children about and stated that the last place they were they had been annoyed a great deal with children; that she told them there were no children about, and the apartments suited them and they remained there.] [24] They remained there from that time, March 13, until Billy reached there on the evening of the eighteenth, five days later.
    [Now, you have heard the testimony of Mr. Whitla as to what occurred after the kidnaping of Billy; that he received, in all, four letters, and the purport of .those letters was that Billy was held for a ransom of $10,000. Those letters were read in your presence, gentlemen, and you heard the threats as to what would become of Billy unless the money was produced. Mr. Whitla detailed to you his efforts to comply with the request and demand they made by signifying his willingness to comply with their demands by inserting an advertisement in the different papers they instructed him to put it in, so that they would know whether or not he would do as requested. He told you of his effort to reach them at Ashtabula, with the package of money, and how it fell through; that he left the money under a cannon in the park there, and that it was subsequently returned to him by the mayor of Ashtabula. He •'tells you of the letters he received, the last one being on Monday, March 22, when he was directed to take a certain train and go to Cleveland and get off at Wilson avenue, and then go down to the drug store of Theodore Urban, on the corner of St. Clair avenue, as we remember it, and he would there find a letter addressed to Mr. Williams, and to follow the instructions in that letter. He tells you that he went to the drug store and asked for the letter and received it, and he testified as to what the letter directed him to do—that he was to go down to a confectionery store on the corner of Fifty-third and Standard streets and leave a package there for Mr. Hays. Mr. Whitla tells you that he complied with these instructions; that he went to this store and said he had a package that he wanted to leave there for Mr. Hays, and did leave a package, and in that package there was $10,000 in twenty, ten and five dollar bills; that in compliance with the request in the letter he was required to put in the package all of the letters he had received up to that time, which he did, and left the package containing the money and letters 'with Mrs. Lena Hendrickson, who was clerking there in the store owned by her mother.
    Mrs. Hendrickson tells you that about five minutes ■after Mr. Whitla left the store James Boyle came in and inquired whether or not a package had been left there by Mr. Williams for W. P. Hays, and was informed that Mr. Williams had left about five minutes before, and he expressed himself as being sorry he had missed him, and that the package was delivered to James Boyle.] [25] Mr. Whitla tells you that Billy Whitla was returned to the Hollenden Hotel that same night, about eight or nine o’clock in the evening.
    The next step in the testimony is that on the night of Tuesday, March 23, about ten o’clock, Officer Shattock saw this defendant and James Boyle on Ontario street, in the city of Cleveland, not far from Michigan street, and something attracted his attention to them; that he followed them for a little way, and finally he and Detective Wood crossed the street and intercepted them as they turned into Michigan street; that they made some inquiries of them as to who they were and what their business was, but received no satisfactory answer; that Mr. Boyle told them he did not know who the defendant was, that he had met her on the street and she had requested him to escort her to the depot, and that was what he was doing; that their answers were not satisfactory and they took them to the central station in Cleveland; that as they got near the station, Mr. Shattock having the custody of Mr. Boyle and Mr. Wood the custody of the defendant, Boyle said “Good-by” and started to run away, when the policeman fired one shot in the air, at which Boyle either stumbled or intentionally fell; that he was then taken into custody again by Mr. Shattock and they were taken to the police station and held.
    [The allegation of the commonwealth, and upon the testimony as to which they expect you to find this defendant guilty of aiding, assisting or abetting, is, in the first place, that the plan was formed in Sharon; that their giving out to their friends that they were going to Denver and that the defendant expected to get some money from her father’s estate was for the purpose of making an answer to developments that they expected to occur; that is, if they succeeded in this plan of kidnaping, and being out of money themselves, and they should be in different circumstances shortly afterwards, that then the story of the defendant expecting money from her father and their going to Denver would clear that matter up; that this whole thing was concocted by the defendant and James Boyle in Sharon before they left there, and that as a part of that plan they were looking for a place to keep Billy Whitla after he should be taken; that the intent was formed in Mercer county, and they then went to Cleveland and rented these apartments for two weeks, and that their purpose in getting apartments of that kind was to find and have a safe place in which to keep this boy after James Boyle had carried out his part of the arrangement; that the inquiry as to whether or not there were any children in those apartments was important in the way of showing the purpose for which the apartments were rented; that they went there and gave their names as Mr. and Mrs.1 Walters and subsequently the boy was brought there and there kept; that this defendant disguised herself, or wore an apron and a dust cap, or something of that ldnd, on her head, and had her face marked with red spots to indicate to Billy, as she said to Billy, that they were marks from the smallpox that she had had.] [26] They further say that the declarations of the defendant after she was arrested tend to support that theory and to show that the plan was formed in Mercer county, and that this was the mere carrying of it out. They alleged, and the witnesses tell you, that after they had arrested the defendant and taken her to the police station, she stated that she was the “frail little woman that planned the whole thing.” Another declaration that they have offered in evidence as being made by her was,- “You think you are smart and that you will get your names and pictures in all the papers to-morrow; but we are not disappointed; we expected this when we planned this job,” or words to that effect. You, gentlemen, will remember the exact words of these statements for yourselves. They tell you that after the defendant had-, been searched in the station house, and the matron had taken from under her skirts these packages of $10,000 in money and the money had been laid on the table, the defendant walked around the table and said that she was "the little woman that could get the money.”
    [Now, the commonwealth ask you to find from all of these' circumstances that this crime was concocted and planned by this defendant and James Boyle in Mercer county before they left Sharon at all. They had been without employment and, as far as the testimony shows, with little or no money, from Thanksgiving Day in November, 1908, until March 12, 1909, and the commonwealth alleges, and ask you to find, that during that time, considering Mr. Boyle’s acquaintance in Sharon and his being there for that length of time and the opportunity he would have to become acquainted with prominent people in Sharon and with the children and whose children to abduct or kidnap, they formed the plan deliberately there, and, as a part of that plan, gave out that the defendant expected money from her father and expected to get it about April 15, and as a further concealment-of that plan gave out, on the very day they left to go to Cleveland, a statement that they were going to Denver.] [27] [The commonwealth alleges that instead of doing that they went direct to Cleveland and rented apartments there in the house of Miss Mills for the express purpose of confining or securing this boy that they had already arranged to kidnap in Sharon; and they ask you to find that the declarations of the defendant after her arrest, as to being "the frail little woman that planned the whole thing,” and she was “the frail little woman that could get the money,” and "You think you are smart, but we expected this when we planned the job,” were simply in pursuance of the prearranged plan made by the defendant and James Boyle in Sharon, Mercer county, Pennsylvania.] [28]
    Before you can convict this defendant, you must be satisfied beyond a reasonable doubt that that is true, for anything she did in Cleveland would not be a crime in Mercer county ? and she could not be convicted for anything she did in Cleveland. The fact that this money, which is admitted to be the money that James P. Whitla left at the store of Mrs. Hendrickson, passed into the hands of James Boyle and that money was found concealed about the person of this defendant would not justify a conviction of the defendant in this county, because that all occurred in Cleveland. [If, however, you are satisfied beyond a reasonable doubt from all of the testimony in the case that the theory of the commonwealth is true—that is, if it is supported by evidence that satisfies you beyond a reasonable doubt that prior to their-leaving Sharon on March 12, 1909, this defendant and James Boyle had formed in their minds a fully matured plan to kidnap Billy Whitla, and that their going to Cleveland and renting these apartments was simply in pursuance of that plan, then it -would be your duty to find this defendant guilty on the second count of this indictment; but you must be satisfied of that fact beyond a reasonable doubt. ] [29]
    Verdict of guilty, upon which the plaintiff was sentenced to imprisonment for twenty-five years and to pay a fine of $5,000.

      Errors assigned were (23-29) portions of charge as above, quoting them.

      S. H. Miller and L. K. Porter, with them S. G. Porter, for appellant.
    We assert with confidence that there is no evidence in the record that can be contorted so as to show such an overt act committed by Helen Boyle in Pennsylvania; or even to show an intent formed in her mind, in the state of Pennsylvania, to commit such an offense: Com. v. Kunzmann, 41 Pa. 429; Com. v. Schmunk, 22 Pa. Superior Ct. 348; Simmons v. Com., 5 Binn. 617.

      Q. A. Gordon, with him J. Mede Lininger, district attorney, and T. C. Cochran, for appellee.
    December 12, 1910:
   Opinion by

Orlady, J.,

James Boyle was convicted under sec. 1 of the Act of April 4, 1901, P. L. 65, of kidnaping William Whitla, an eight year old son of James P. Whitla, of Sharon, Mercer County, Pennsylvania. Helen Boyle, this defendant, was convicted of the offense defined in sec. 2 of this act, viz.: “Any person who shall aid, assist, or abet, in the taking or carrying away, or in the decoying or enticing away, or secreting of any child or person, with intent to extort money or any other valuable thing for the restoration or return of such child or person, such offender shall be guilty of felony, etc.”

The only questions raised by this appeal are, first, the sufficiency of the evidence to show an offense under this statute, and second, whether the court of Mercer county had jurisdiction of the case.

In November, 1908, James Boyle, .a former resident of Sharon, Mercer county, after an absence of two and a half years, returned to the town with this defendant who was ostensibly his wife. They remained there in the home of his mother until March 12, 1909, during which time they were without any known means of support, and he was not engaged in any business. They there announced their intention of going to Denver, Colorado, and Boyle secured sufficient funds from his mother to take himself and alleged wife to that place. Helen Boyle at the same time, stated that she expected soon to receive some money from her father. On the afternoon of March 12, James and Helen Boyle left Sharon, with the avowed purpose of going to Denver, but they went directly to Cleveland, Ohio, and the' next day under the names of Mr. and Mrs. Walters, rented a two room housekeeping suite at a quiet apartment house, paying two weeks’ rent in advance.-

On March 18, about ten o’clock a. m., Boyle decoyed the child from a school at Sharon, where he was then in attendance as a pupil, stating that he, Boyle, had been sent by the child’s father to get him so as to prevent the doctors taking him on account of his having smallpox, and he took him in a buggy to Warren, Ohio, where the child was induced to address a letter to his mother in Sharon, and to post it in a street letter box. This letter contained a demand for a ransom of $10,000, and gave instructions as to the delivery of the money to a Mrs. Hendrickson at Cleveland, Ohio. Boyle, accompanied by the child, arrived at the selected rooms in Cleveland during the evening of the same day, where the child was taken charge of by this defendant, who was disguised as a nurse, and having simulated marks of smallpox on her face. The lad was so secreted that no person was permitted to see him, and when there was any alarm at the door, he was instructed to hide in a closet in the bath room.

During the stay of the parties in these rooms, several letters were sent to the parents at Sharon. The ones written by the child were dictated by Boyle, and those written by Boyle in regard to the payment of the ransom and the return of the child, were dictated by Helen Boyle. Pursuant to the instructions contained in these letters, Mr. Whitla, the father, on March 22, left at a designated place (Mrs. Hendrickson’s store) in Cleveland, Ohio, a package containing $10,000 in paper money, which was to be called for by a Mr. Hays, and soon thereafter, James Boyle, calling himself Hays, came to this store and inquired for the package left for him, and received it.

That evening, Boyle and this defendant (who were known to the child as Mr. and Mrs. Jones) instructed him how he should go to meet his father, and Boyle went with him to the street where he put him on a car, with a note prepared by James and Helen Boyle to be shown to the conductor, reading, as follows: “Please leave boy off at Hollenden Hotel.” The father was there in accordance with the instructions contained in the letters written by James and Helen Boyle, and then and there recovered the child.

The next evening the two Boyles were arrested in Cleveland as they were leaving the city, and when searched at the police station, the $10,000, which had been left by Mr. Whitla at Mrs. Hendrickson’s store, were found secreted in the clothing of Helen Boyle. At the time of her arrest and examination, the voluntary statements of Helen Boyle, while not in the nature of a confession, related so directly to her participation in the crime from its inception at Sharon, that they became material evidence in determining her knowledge of participation and motive in the enterprise.

Without any inducement or coercion she voluntarily stated to the officers, “Now just think of it, I am the little frail woman that planned the whole thing, .... there will be hell to pay in Sharon to-morrow. . . . That kid’s eyes will be burned out with acids. . . . I’m the little woman that can get the money. . . . I’m not at all surprised at it, because we expected this when we planned the job. . . . You have got it on us, and got it right, and you have got the money; but I’m not afraid of their taking me back to Sharon, .... if they take us back to Sharon, they will have it on Buhl as strong as they have got it on us.”

There is no intimation that any other person was in any manner implicated in this crime, and every act of each of these two parties had an important relation to the .conduct of the other at every stage of the enterprise. To carry to a successful termination a crime of this character there would necessarily be frequent consultation and conference between the parties so that definite arrangements could be made as to many details, which must be accurately understood and provided for by the participants, hefore any overt act would with safety be committed by either. To secure the child would be but one step, and an unimportant one, unless arrangements were made for secreting and detaining him until the ransom should be paid. That every act of these confederates at Cleveland was a designed sequence of the plan arranged by them at Sharon, and that this woman was an important and necessary participant in this crime at its inception, was a reasonable and natural conclusion reached by the jury, in determining her guilty in manner and form, under this indictment.

The declarations of the woman in Cleveland related so pertinently to her knowledge of preexisting facts and conditions in Sharon, and her conduct there conclusively shows the understanding of each and both in regard to the reception, detention, and release of the child for the purpose of securing the very money that was found secreted on her person that they were convincing items of evidence.

In order to sustain this conviction, there must be found in this record sufficient competent evidence to establish the commission by this defendant of an overt act in Mercer county, Pennsylvania, but this overt act, however, like any other substantive fact, may be determined by any adequate proof.

A well connected train of circumstances is as cogent of the existence of a fact as any array of direct evidence. It has frequently been stated, that circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence: in the concrete, it may be infinitely stronger—all evidence is inore or less circumstantial, the difference being only in degree; and it is sufficient for the purpose when it excludes disbelief: that is actual, and not technical disbelief. The evidence adduced in this case recalls what was said in Commonwealth v. Kovovic, 209 Pa. 465: “These and other inculpatory facts and circumstances testified to not only indicated the appellant’s guilt, but seem to be incapable of explanation on any other reasonable hypothesis.” The very nature of the crime requires resort to circumstantial rather than direct evidence. A conspiracy may be proved, as other facts are proved, and parties performing disconnected overt acts, all contributing to the same result, and the consummation of the same offense, may by the circumstances and their general connection or otherwise, be satisfactorily shown to be conspirators and confederates in the commission of the offense. One party may allure a victim into a den, leaving it to others to effect a robbery, and all will be held equally guilty as confederates: Kelley v. People, 55 N. Y. 565; People v. Miles, 192 N. Y. 541 (84 N. E. Repr. 1117). Standing alone, some of the items of evidence might not definitely show a community of intent, yet each was an important link in the chain of circumstances which was designed, by these parties, to be misleading and complicated; and when taken together they clearly showed a design and understanding which could lead to but one conclusion. The fact that the woman was apprehended in another state, in charge of the place in which the child was detained, and made there her incriminating statements, did not change the character of her relation to the crime in Mercer county, though at the time the physical abduction of the child was effected in Mercer county, she was not personally present, the evidence conclusively shows a continuing purpose, through a definite series of acts, to aid, assist and abet James Boyle in kidnaping this child, with intent to extort money for his restoration to his family. While in Sharon, their acts and declarations relative to their financial condition, as well as to their destination were competent, as bearing on their identity and on the motive for changing, within a few hours their announced plan, and names, and their disguises. The jury was warranted in finding that what Boyle did on March Í2, was the reasonable and natural, as well as the direct and intended, result of their joint undertaking, and that, without this previous understanding in regard to the safe place in which to secrete the child while negotiating for the ransom, the whole project would have failed. This disposes of the case as presented by the question involved.

Helen Boyle’s offense as charged in the indictment, was complete in Mercer county, the case was fairly tried by able counsel, and was submitted to the jury in a clear and adequate charge.

After an examination of each of the assignments we fail to find any reversible error and the judgment is affirmed.

Morrison, J.,

dissenting:

I am unable to agree with the majority of the court in affirming the judgment in this case. The first count of the indictment charged the appellant, Helen Boyle, with kidnaping and abducting William Whitla, a male child, from the county of Mercer, in the state of Pennsylvania, on April 7, 1909, and the second count charged that she did, on the same date and at the same place, aid, assist and abet James Boyle in kidnaping, abducting and carrying away the said William Whitla from the county of Mercer, Pennsylvania. While the indictment charges the abduction to have been on April 7,1909, the testimony clearly establishes that the child was actually abducted and carried away by James Boyle on March 18, 1909, and this fact is conceded on all hands.

The jury found the defendant not guilty under the first count, but guilty under the second count of the indictment, and she was sentenced to undergo imprisonment in the penitentiary for a period of twenty-five years.

' James Boyle was tried and convicted under a separate indictment for kidnaping and carrying away from the county of Mercer, Pennsylvania, the said child, William Whitla, and he was sentenced to undergo imprisonment in the penitentiary for life. At the trial it was clearly proved and is a conceded fact that James Boyle and Helen Boyle left Mercer county, Pennsylvania, on March 12, 1909, and on the same day arrived in the city of Cleveland in the state of Ohio, and that Helen Boyle remained in that city and state continuously from that day until March 23, 1909. There is no pretense made by any one that on March 18, 1909, when James Boyle lddnaped and carried away from Mercer county the child, William Whitla, Helen Boyle was within the state of Pennsylvania. I understand the majority of this court to concede that to sustain the conviction of Helen Boyle there inust be found in the record evidence that she committed some overt act in regard to the abduction in the county of Mercer, in the state of Pennsylvania, and that is my view of the law, but I am unable to find such evidence in the record. Conceding that Helen Boyle was in Cleveland, Ohio, on the day of the abduction and for several days next preceding that date, I cannot see how she could have aided, assisted or abetted James Boyle in committing the felony in Mercer county. The offense of which she was convicted seems to be embraced in the word abet, and I do not understand that anybody contends that she actually aided or assisted James Boyle on March 18, 1909, in kidnaping and carrying away the child from the county of Mercer, in the state of Pennsylvania. This being so, did she abet him in committing this felony? The best definition I find of the word abet is: “In law, to encourage, counsel, incite or assist in a criminal act—implying in the case of a felony personal presence.” I find in the record no evidence supporting the charge that Helen Boyle either aided, assisted or abetted James Boyle in committing the felony in Mercer county on March 18, 1909.

It is true that it was proved that when arrested in Ohio Helen Boyle said in substance: “I am the little woman who planned the whole scheme.” But this planning might all have been done while Helen Boyle and James Boyle were in Cleveland, Ohio, during the several days immediately prior to the abduction. Under all of the evidence the jury could only guess as to where the abduction was planned. It was just as likely to have been in Ohio as in Pennsylvania, even if such planning was sufficient evidence of aiding, assisting or abetting James Boyle in committing the felony. But I am of the opinion that, even if the plan to abduct the child was made in Mercer county, between James and Helen Boyle, and they then left Mercer county and went to Cleveland, Ohio, on March 12, 1909, where Helen Boyle remained continuously until several days after the abduction, such planning, without more, would not be sufficient to convict Helen Boyle of the crime charged in the second count of the indictment.

There can be no doubt that Helen Boyle committed a serious crime in the state of Ohio in aiding and assisting James Boyle in secreting and holding the child until they received a large sum of money for surrendering the child to its father, but whatever crime she committed seems to me to have been in the state of Ohio, and she should be there tried and punished.

I would reverse the judgment and discharge the defendant without day.


author: Per Curiam,

text:
    Filbert v. Behney, Appellant.

      Vendor and vendee—Breach of contract—Hand money—Damages.

    1. In an action by a vendee of real estate against the vendor to recover hand money paid down and damages for breach of contract, the trial judge cannot be convicted of error in refusing a point which asks for binding instructions relieving the defendant from all liability, where in any view of the evidence the plaintiff is entitled to recover the hand money.

      Principal and agent—Evidence—Letter.

    2. In an action by a vendee against a vendor of real estate to recover damages for the breach of a contract of sale, a letter offered by the defendant will not be admitted in evidence to establish the fact that the plaintiff was the agent of a third person, where the contents of the letter shows that if any agency had existed, it had been terminated before the plaintiff made his contract with the defendant.
    Argued Nov. 15, 1910.
    Appeal, No. 64, Oct. T., 1910, by defendant, from judgment of C. P. Berks Co., Feb. T., 1907, No. 49, on verdict for plaintiff in case of Adam M. Filbert v. Simon Behney.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for breach of contract to sell land. Before Endlich, P. J.

      At the trial it appeared that Simon Behney was the' owner of the Pleasant Hill Hotel on October 13, 1906, and that on that day he made a written contract to sell the property to plaintiff for $8,500. There was evidence that on the same day he verbally contracted to sell the same property for the same price to W. L. Donmoyer, the proprietor of the New Lebanon Brewing Company. At the time of the execution of the written agreement plaintiff paid to defendant $300 hand money. On October 18, 1906, the defendant conveyed the premises to the brewing company in accordance with the verbal contract. The defendant offered evidence tending to show that the plaintiff was in fact the agent of the brewing company. This evidence was contradicted by that of the plaintiff.
    The attorney for the defendant made the following offer:
    Mr. Nicolls: We offer in evidence a letter from A. M. Filbert to Simon Behney, dated October 3, 1906 (exhibit “B”).
    Mr. Keiser: What is the purpose of the letter?
    Mr. Nicolls: Mr. Behney having testified that he did not see Mr. Filbert from October 3 until October 15, and Mr. Filbert in this letter having said .that the negotiations were concluded and that his man would not take the hotel property, the letter is offered for the purpose of showing that Mr. Behney thought he was not dealing with Mr. Filbert but with some other party and that that party was the New Lebanon Brewing Company.
    Mr. Keiser: Objected to for the purpose stated.
    Mr. Nicolls: Secondly, to corroborate the testimony of Mr. Behney that he thought he was dealing with the New Lebanon Brewing Company and not with Mr. Filbert.
    The Court: Objection sustained; bill sealed for defendant. [2]
    A copy of said letter is as follows:

      “A. M. Filbert,
    “Wholesale Dealer in
    “Wines and Liquors.
    “Southwest Cor. 9th and Cumberland Sts.
    “Lebanon, Pa., Oct. 3,1906.
    “Mr. Simon Behney,
    “Reading, Pa.
    “Dear Sir:
    “I seen my customer this morning, in regards the Hotel. He now tells me he has changed his mind, that I should not try and get it for him. So do not keep it for me. If any one comes and makes you an offer and wish to sell it, its for you to say so. Coming up in the train yesterday I met Wm. Blecker who was at Reading looking at different places to buy out, so I do not believe Mr. Wills wants it for him. If you come to Lebanon stop in to see me.
    “Resp.
    “A. M. Filbert.”
    Defendant presented this point:
    - 3. If the jury believe that the plaintiff knew of Behney's verbal agreement to sell to the brewing company before he, the plaintiff, made his written agreement of purchase with Behney, then the plaintiff cannot recover. Answer: Declined (and not read to jury). [1]
    Verdict and judgment for plaintiff for $875 damages and $300 down money. Defendant appealed.
    ' Errors assigned were (1) answer to point as above, quoting it, and (2) ruling on evidence, quoting the bill of exceptions.

      F. W. Nicolls, of Ricks & Nicolls, with him E. W. Miller, for appellant.

      Henry P. Reiser, for appellee.
    December 12, 1910:
   Per Curiam,

This action was brought for the recovery of damages for breach of a written contract for the sale of real estaté. It is undisputed that at the time the agreement was entered into the plaintiff paid to the defendant $300 on account of the purchase price, and that three days after-wards the latter conveyed the property to another party, taking a bond to indemnify him against liability. The defendant’s contention was that the conveyance to the third party was made pursuant to an oral agreement entered into on the same day, but before the defendant’s agreement with the plaintiff was made, and that the latter knew of this prior oral agreement at the time the agreement with him was entered into. It is argued that if this was the fact, the plaintiff was not in position to claim damages upon the ground of a fraudulent breach of the contract with him. We need not discuss the question as to the effect upon the measure of damages of the plaintiff’s knowledge of the prior oral contract; for in any view of the case he was entitled to recover back the down money. Hence, the point, the refusal of'whiciris the subject of the first assignment of error, was too broad, and as the affirmance of it, as it was put, would have been error, it was not error to answer it by a simple negation. As none of the instructions given in the general charge are assigned for error, the appellant is not in position to argue against the correctness'of the judge’s statement of the. questions of fact upon which the case turned. In saying this, we are not to be understood as intimating that this was erroneous; on the contrary, we are of opinion that it was not erroneous.

The argument of appellant’s counsel, in support of the second assignment of error, is correctly and adequately answered by the learned judge in his opinion overruling the motion for a new trial as follows: “The rejection of a certain letter from plaintiff to defendant, offered by the latter to corroborate his assertion of belief, could not be error unless what was said in the letter supported it by amounting to proof in some degree of the alleged agency. The letter, however, dated Oct. 3, 1906, whilst speaking of an undisclosed ‘customer’ of plaintiff’s with reference to the property, distinctly declared that this party had changed his mind and had instructed plaintiff not to buy for him. When after the lapse of about two weeks plaintiff came back to negotiate for the purchase in his "own name, defendant could hardly assume he was still or again acting for that ‘customer,’ much less that he was acting for the particular party to whom defendant eventually conveyed. If he so assumed, surely the letter had no tendency to justify the assumption. If it proved anything on the subject of plaintiff’s agency for anyone, it negatived its existence. It was therefore not evidence, either corroborative or otherwise, of any fact pertinent to the case.”

The assignments of error are overruled, and the judgment is affirmed.

Porter, J., concurs.