author: WIEAND, Judge: WICKERSHAM, Judge,

text:
    476 A.2d 11
    In the Interest of Randy Scott MELLOTT, a Minor. Appeal of Randy Scott MELLOTT.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1983.
    Filed April 19, 1984.

      Kenneth F. Lee, Chambersburg, for appellant.
    Merrill W. Kerlin, District Attorney, McConnellsburg, for participating party.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

Randy Scott Mellott, a sixteen year old juvenile, was adjudicated delinquent because of a tragic hunting accident in which he accidentally shot and killed another hunter whom he momentarily and mistakenly believed to be a wild turkey. On appeal, he contends that his adjudication hearing was held in violation of Pa.R.Crim.P. 1100. He also contends that an incriminating statement made by him to a deputy game warden, as well as the offending shotgun, should have been suppressed.

Appellant’s first contention is lacking in merit. Rule 1100 does not apply to juvenile proceedings. Pa.R.Crim.P. 1(a). See: Commonwealth v. Sadler, 301 Pa.Super. 228, 233-234, 447 A.2d 625, 627-628 (1982); Commonwealth v. Jackson, 287 Pa.Super. 430, 430 A.2d 680 (1981); Commonwealth v. Mitchell, 283 Pa.Super. 455, 460-461, 424 A.2d 897, 900 (1981), cert. denied, 454 U.S. 851, 102 S.Ct. 292, 70 L.Ed.2d 141; Commonwealth v. Bell, 245 Pa.Super. 164, 166, 369 A.2d 345, 346 (1976), aff'd, 481 Pa. 229, 392 A.2d 691 (1978). Due process and equal protection arguments have been made with respect to the inapplicability of Rule 1100 to juvenile proceedings and have been rejected. Commonwealth v. Sadler, supra; Commonwealth v. Jackson, supra. The court’s adjudication in this case is not subject to reversal on Rule 1100 grounds.

The second issue is not so easily resolved. In reviewing the juvenile court’s order denying a motion to suppress evidence, we follow established precedent.

[W]e determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact. . . . In considering whether the record supports the court’s finding of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Eliff, 300 Pa.Super. 423, 428, 446 A.2d 927, 929 (1982) (citations omitted). Accord: Commonwealth v. Tuck, 322 Pa.Super. 328, 332, 469 A.2d 644, 646 (1983).

After law enforcement officers learned of the hunting accident, three deputy game wardens and two state policemen went to the scene, where a crowd of persons had already gathered. The state policemen examined the victim of the shooting, and the game wardens performed crowd control duties. Berley Souders, one of the deputy game wardens, asked, “Is the person who done the shooting here?” Two men responded in the affirmative and pointed to Mellott. Souders testified that the crowd seemed to be “gawking” at the juvenile; and, therefore, he told him “Come with me. We will get away from these people. Come on, let’s take a walk down. We will talk to you down here.” After Mellott had been removed to an isolated spot, Souders asked, “Did you fire the shot?” Mellott responded “Yeah. I was the one that shot.” He added that he thought it was a turkey. Souders did not know Mellott and did not then know he was a juvenile. He asked the juvenile for identification. Mellott gave Souders his name but said he had no identification, that his hunting license was with his vest. When asked where that was, he said, “Down by the creek with my gun.” Mellott was subsequently advised of his Miranda rights, and thereafter accompanied another deputy game warden to retrieve the gun and vest. As a result of further questioning, Mellott gave a detailed, written statement and participated in a re-enactment of the shooting. Everything said by the juvenile after the giving of Miranda warnings, however, was suppressed because Mellott had not been given an opportunity to confer with an interested adult. The suppression court refused to suppress the statements made by the juvenile prior to the Miranda warnings. It also refused to suppress the vest and shotgun taken into custody by the game warden. The inculpatory statement made prior to the Miranda warnings, as well as the gun and vest, were introduced against Mellott at the adjudication hearing.

Unless a person is advised of his Miranda rights prior to custodial interrogation by law enforcement officers in a criminal proceeding, evidence resulting from such interrogation cannot be used against him. Miranda v. Arizona, 384 U.S. 436, 444, 478-479, 86 S.Ct. 1602, 1612, 1630, 16 L.Ed.2d 694, 706, 726 (1966). See: Commonwealth v. Ziegler, 503 Pa. 555, 470 A.2d 56 (1983); Commonwealth v. Bracey, 501 Pa. 356, 366, 461 A.2d 775, 780 (1983); Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977); Commonwealth v. Nunez, 312 Pa.Super. 584, 459 A.2d 376 (1983); Commonwealth v. Schoellhammer, 308 Pa.Super. 360, 454 A.2d 576 (1982). Deputy game wardens are law enforcement officers charged with enforcing the Pennsylvania Game Law. See: Commonwealth v. Palm, 315 Pa.Super. 377, 462 A.2d 243 (1983). The Game Law makes it a crime to kill a fellow hunter in mistake. For this offense a maximum sentence of three years imprisonment may be imposed. Act of June 3, 1937, P.L. 1225, as amended, Act of June 23, 1970, P.L. 433, No. 145, § 1, 34 P.S. § 1311.825(c) (supp. 1983-84). There can be no doubt, therefore, that Mellott was being questioned by law enforcement officers in a criminal proceeding.

We are required to use an objective test to determine whether Mellott was subjected to interrogation for Miranda purposes. Commonwealth v. Johnson, 310 Pa.Super. 385, 392, 456 A.2d 988, 991-992 (1983). “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id., quoting from Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d 297, 308 (1980). Interrogation includes any questioning calculated to, expected to, or likely to elicit incriminating statements. Commonwealth v. Bracey, supra; Commonwealth v. Sero, 478 Pa. 440, 453, 387 A.2d 63, 70 (1978); Commonwealth v. Davis, 460 Pa. 37, 40, 331 A.2d 406, 407 (1975).

A subjective test must be applied in order to determine whether Mellott’s interrogation was custodial in nature. Commonwealth v. Meyer, 488 Pa. 297, 307, 412 A.2d 517, 521 (1980); Commonwealth v. Brodo, 262 Pa.Super. 375, 378, 396 A.2d 802, 804 (1979); Commonwealth v. Anderson, 253 Pa.Super. 334, 345, 385 A.2d 365, 371 (1978). Custodial interrogation does not require that a formal arrest have been made. Interrogation is custodial if an individual has been “taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.” Commonwealth v. Bracey, supra 501 Pa. at 366, 461 A.2d at 780, quoting Miranda v. Arizona, supra 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. See also: Commonwealth v. Meyer, supra; Commonwealth v. Brodo, supra; Commonwealth v. Anderson, supra 253 Pa.Super. at 345, 385 A.2d at 370. Our inquiry must be directed to whether Mellott was in a situation in which he reasonably believed that his freedom of action or movement had been significantly restricted. Commonwealth v. Meyer, supra; Commonwealth v. Brodo, supra; Commonwealth v. Anderson, supra.

Appellant, knowing that he had killed another person, observed five law enforcement officers arrive at the scene and take charge. When one of them asked who had done the shooting, appellant was identified by persons in the crowd which had gathered. One of the deputy game wardens took him aside, away from the crowd, for questioning. Two other deputy game wardens followed. Appellant, under these circumstances, had reason to believe that his freedom of movement and action had been curtailed. After he had been removed from the crowd, appellant was asked by Souders: “Did you fire the shot?” This was likely to elicit an incriminating statement. Indeed, that was exactly what happened. We are constrained to conclude, therefore, that appellant’s incriminating statement was the product of custodial interrogation.

Mellott was only sixteen years of age. His custodial interrogation was not preceded by any Miranda warnings. In addition, the record is clear that he was not accorded an opportunity to consult with an adult who was interested in his welfare. “[J]uvenile defendants are not, in the usual case, on a par with adults with respect to adequacy of their judgment, knowledge [or] the consequences of their admissions and ability to resist overbearing police interrogation.” Commonwealth v. Christmas, 502 Pa. 218, 221, 465 A.2d 989, 991 (1988). Under these circumstances, Mellott must be presumed to be incompetent to waive his Miranda rights without a prior opportunity for consultation with an informed and interested adult. Id. There was no evidence from which it could have been found that the juvenile understood his Miranda rights or that he was competent to waive them without prior opportunity to consult with an adult.

The juvenile court held that the interrogation of appellant was comparable to a police officer’s investigation of an automobile accident. Therefore, the court refused to suppress the juvenile’s admission despite the absence of Miranda warnings and despite the absence of opportunity to consult with an interested adult. Our review of the evidence leads us inevitably to the conclusion that the order of the suppression court cannot be sustained. Appellant’s admission was elicited during interrogation by law enforcement officers after he had become the focus of investigation by law enforcement officers and after he had been deprived of his freedom of action in a significant way. Under these circumstances, appellant’s incriminating statement was obtained in violation of existing law and should have been suppressed. The adjudication of delinquency, based on an illegally obtained incriminating statement, must be reversed. A new adjudication hearing is necessary.

Because of an erroneous determination that Mellott’s interrogation had been lawfully conducted, the suppression court did not determine whether the offending weapon and the vest taken by a game warden had been “fruits” of the unlawful interrogation. Upon remand, the court should determine whether the finding of this evidence was attributable to an improper interrogation of the appellant or whether the evidence would have been found irrespective of such interrogation and as a result of a properly conducted investigation. If the evidence was a product of the unlawful interrogation, it must be suppressed. If it would have been found in any event as a result of a lawful investigation by law enforcement officers, the evidence may be used by the Commonwealth. Commonwealth v. Jones, 271 Pa.Super. 528, 536, 414 A.2d 379, 383 (1979). See also: Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (1976).

Reversed and remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

WICKERSHAM, J., filed a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I would affirm the order of the trial court, Honorable George C. Eppinger, President Judge.

I agree with Judge Eppinger’s discussion and conclusion in his opinion filed below, particularly the following:

We perceive three separate time frames in which various incidents occurred on May 2, 1981, which must be considered in the context of the suppression petition and the applicable law. These times frames are:
(1) From the time of the arrival of the deputy game protectors and Cpl. Joyce at the accident scene.
(2) The time when the deputy game protectors learned or should have learned that Randy Scott Mellott was, in fact, a juvenile.
(3) The time period which the juvenile’s father was present with the juvenile in the company of the game warden and other deputy game protectors.

When the deputies and Cpl. Joyce arrived at the scene, they were confronted with a dead body and a crowd of people. Their position was analogous to that of the police officer who arrives at the scene of a traffic accident or a crime. One of the deputies addressed the crowd with the question of who had done the shooting, and two individuals pointed to Randy Mellott. To ensure the accuracy of the identification and to avoid any possible interferences or the insertion of irrelevant matters by members of the crowd, the deputy game protector and the juvenile moved away from the other people and into the woods where Deputy Souders sought to confirm the accuracy of the identification. In response to the deputy’s question the juvenile affirmed the fact that he had fired the shot because he thought it was a turkey. At this point the deputy sought identification of the juvenile; learned his name; and in response to his request for his hunting license learned that the license was with his vest and gun down by the creek. The juvenile pointed in the direction where his gun and vest were located. After Deputy Souders read the juvenile his rights, he requested the juvenile and Deputy Bergstresser to go pick up the vest and gun so that the license could be examined. The deputy and the juvenile retrieved the vest, gun and an empty shell case and returned to Deputy Souders. The juvenile’s hunting license was not in his vest and the deputy was told that the juvenile’s father had it. It was at this point in time that Cpl. Joyce advised the deputy game protectors that he had learned that Randy Mellott was a juvenile, and no further questions should be asked until he was in the presence of one of his parents.

In our judgment the questions asked by Deputy Souders during this time frame were equivalent to the questions asked in the preliminary stages of an accident investigation when the investigating officer is simply attempting to ascertain the basic facts, including the identification of the parties and the whereabouts of the instrumentalities involved; and he had arrived at no conclusion as to whether any violation of the law has occurred. The inquiry whether he fired the shot is analogous to the question whether a party was driving ‘that car’. The request for the hunting license is precisely identical to the request for a driver’s operator’s license and registration card. The juvenile volunteered that his gun was with the vest which he apparently believed had the license attached to it, and he pointed out the direction to the place where he had left vest and gun.

We do not feel that the questions asked by Deputy Game Protector Souders constituted an improper violation of the constitutional rights of the juvenile during this time frame because they were all in the nature of a preliminary investigation of a hunting accident. We feel it was proper for Deputy Bergstresser to take the gun and vest into his possession because they were lying out in the woods and could readily have been stolen by any member of the crowd, and because they might constitute necessary evidence in the ongoing investigation.

Lower ct. op. at 8-11.

I agree. I would affirm.

      . Act of June 3, 1937, P.L. 1225, § 1, 34 P.S. § 1311.1 et seq.

      . The right to consult with an interested adult is not diminished because the interrogating officer is unaware of the juvenile’s age. See: Commonwealth v. Markle, 475 Pa. 266, 270, 380 A.2d 346, 348 (1977).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    476 A.2d 16
    COMMERCIAL TRADING COMPANY, INC. v. MILSAN MILLS INCORPORATED, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1983.
    Filed April 19, 1984.

      Stanley W. Katz, Lebanon, for appellant.
    Daniel J. Barrett, Athens, for appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

Staylor Industries, Inc. (Staylor) assigned to Commercial Trading Company, Inc. (Commercial) all sums owed to Staylor by Milsan Mills Incorporated (Milsan). Commercial gave notice of the assignment to Milsan on August 9, 1979. Commercial subsequently commenced an action against Milsan to recover the sum of $29,070.16, which Milsan allegedly had owed Staylor at the time of the assignment. Milsan’s answer contained a denial that any amount was due. Instead, it was alleged, credits had been extended by Staylor to Milsan in the amount of $14,784.26 on August 8, 1979, prior to notice of the assignment. The balance of $14,-285.90, it was also alleged, had been paid to Staylor by Milsan’s check dated October 26, 1979. A partial summary judgment was entered in favor of Commercial and against Milsan for this latter amount because it was improperly paid to Staylor after Milsan had received notice that its account indebtedness had been assigned to Commercial. The issue of Milsan’s liability for the balance of $14,784.26 was tried before the court without a jury.

At trial, Milsan admitted the assignment. However, its witnesses testified and produced bookkeeping entries that the account between Milsan and Staylor had been reduced by a credit extended by Staylor on August 8, 1979. This credit was extended, it was stated, to cover the value of Milsan’s cloth seized by creditors of Staylor, to which creditors the cloth had been sent for work, as security for moneys owed them by Staylor. Commercial produced no contradictory evidence but generally denied Milsan’s defense. The trial court, without determining the credibility of Milsan’s evidence, entered an adjudication in favor of Commercial because “[t]oo broad a variation exists between allegata and probata.” Exceptions were dismissed, and judgment was entered on the adjudication by the court.

It was error to base a decision on that which the court deemed to be a variance between allegata and probata. Although it is correct that a party’s proof must be consistent with his pleadings, Willinger v. Mercy Catholic Medical Center, 241 Pa.Super. 456, 464, 362 A.2d 280, 284 (1976), aff'd, 482 Pa. 441, 393 A.2d 1188 (1978), and that a defendant may prove only those defenses which have been pleaded, Ochs v. Reynolds, 155 Pa.Super. 469, 472, 38 A.2d 728, 729 (1944); 29 P.L.E. Pleading § 175 (1960), a failure to object to a variance at trial is a waiver of the right to object to it thereafter. Sangl v. Sangl, 394 Pa. 156, 159-160, 146 A.2d 303, 305 (1958); Williams v. Philadelphia Transportation Co., 219 Pa.Super. 134, 140, 280 A.2d 612, 615 (1971).

In the instant case, the only variance between appellant’s evidence and the averments of its answer was the date on which the alleged credit was given by Staylor to Milsan. The answer contained an averment that the transaction had occurred on October 26, 1979; whereas, the evidence at trial was that the credit had been extended on August 8, 1979. Appellee did not object to the variance or otherwise raise it at trial. The trial court, therefore, could not properly raise the issue sua sponte and refuse to consider appellant’s evidence of an alleged credit merely because the date thereof, as testified to by witnesses at trial, was at variance with the date recited in appellant’s pleading.

The rule of law by which the validity of the credit must be determined has been set forth in Section 9-318(1) of the Uniform Commercial Code, 12A P.S. § 9-318(1) (repealed 1980) (current version at 13 Pa.C.S. § 9318(a)), where it is provided that the rights of an assignee are subject to

(a) all the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom; and
(b) any other defense or claim of the account debtor against the assignor which accrues before the account debtor receives notification of the assignment.

(Emphasis added).

Appellant’s evidence, if believed, showed that its account with Staylor (the assignor) had been adjusted by agreement of the debtor and creditor to reflect a credit of $14,784.26 and that this occurred prior to the date on which appellant received notice that its account balance had been assigned to Commercial (the assignee). The adjustment had been made allegedly to compensate appellant for its goods which had been seized by creditors of the assignor. Whether appellant’s evidence was credible is not for this Court to decide. That issue was for the trial court as trier of the facts. If appellant’s evidence is credible, the court can conclude that appellant had a defense to the claim being made by Staylor’s assignee. If appellant’s evidence is not to be believed, appellee is entitled to a judgment for the balance due on the account. Upon remand, the trial court should make the necessary findings upon which its ultimate decision can then be made to rest.

Prior to trial, Commercial served on appellant a set of written interrogatories requesting information about and documentation of the credits alleged in appellant’s answer. These interrogatories were not answered and the requested information was not furnished by appellant prior to trial. Appellee did not request an order of court compelling answers to its interrogatories but elected to proceed to trial without obtaining such answers. Approximately two months after trial had been completed and after the case had been decided, appellee requested the court to enter an order imposing sanctions in the form of an award of counsel fees because of appellant’s failure to answer pre-trial, discovery interrogatories. The court, in response thereto, ordered appellant to pay general counsel fees in an amount of $1,000 and an additional fee of $500 for counsel fees incurred in presenting and arguing the motion for sanctions. Appellant argues that the trial court’s order was procedurally irregular and substantively inappropriate. We agree.

Pa.R.C.P. 4019(g)(1) provides as follows:

(g)(1) Except as otherwise provided in these rules, if following the refusal, objection or failure of a party or person to comply with any provision of this chapter, the court, after opportunity for hearing, enters an order compelling compliance and the order is not obeyed, the court on a subsequent motion for sanctions may, if the motion is granted, require the party or deponent whose conduct necessitated the motions or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses, including attorney’s fees, incurred in obtaining the order of compliance and the order for sanctions, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

(Emphasis added). The procedure contemplated by this Rule has been described in Goodrich-Amram 2d, § 4019(g):5, as follows:

There is a two-step procedure for the court to award expenses and attorneys’ fees for the failure to comply with a discovery [rule]. The first step under subdivision (g)(1) of Rule 4019 is a motion to compel compliance. If, after a hearing, the motion is granted and depositions or discovery are ordered and the party against whom it is directed complies, that is the end of the matter as far as expenses and counsel fees are concerned. There can be no award of expenses and fees. If the order to comply is not obeyed, the aggrieved party may file a new motion to impose sanctions. The court, at this “second step” of the proceedings, may award expenses and counsel fees for either or both steps depending upon how the court views the conduct of the defaulting party and his counsel. The Rule permits the court to decline any award if the court finds that the opposition to the motion was substantially justified or that other circumstances make an award unjust.

10 Goodrich-Amram 2d § 4019(g):5.

This is the procedure which must be followed before a party can obtain from the court an award of counsel fees “incurred in obtaining the order of compliance and the order for sanctions.” In the instant case, this two-step procedure was not followed. The action went to trial without any prior attempt by appellee to obtain an order compelling appellant to answer the outstanding interrogatories. Without a pre-trial motion seeking an order compelling answers to its interrogatories and without an order entered pursuant thereto, there is no authority in the rules for a post-decision motion for discovery related counsel fees.

It is true that at trial appellee objected to and sought to prevent appellant from offering evidence of credits allegedly extended to appellant by appellee’s assignor. The trial court overruled appellee’s objection, however, and received the evidence. Thus, it seems clear that appellant did not disobey or refuse to comply with a proper court order. Without a refusal to comply with an order compelling answers, appellant could not be made to pay counsel fees and expenses under Pa.R.C.P. 4019(g)(1). The $500 award made for presenting and arguing the motion for sanctions, therefore, was improper.

The award of general counsel fees was also erroneous. An award of counsel fees for non-discovery related counsel fees is not authorized by Pa.R.C.P. 4019(g). If there is authority for such an award, it must be found in the provisions of Pa.R.C.P. 4019(a)(1), which authorize a court, on motion, to make an “appropriate order” whenever a party “fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005.” The imposition and choice of sanctions for noncompliance with discovery under this Rule is within the discretion of the trial court, Walker v. Pugliese, 317 Pa.Super. 595, 600, 464 A.2d 482, 486 (1983); Feingold v. Philadelphia National Bank, 313 Pa.Super. 579, 583, 460 A.2d 339, 341 (1983). However, the Rule “requires the court to select a punishment which ‘fits the crime’.” Dunn v. Maislin Transport Limited, 310 Pa.Super. 321, 325, 456 A.2d 632, 634 (1983). The order must be appropriate under the circumstances. The extent to which a moving party has been prejudiced by the failure to produce is an important consideration in formulating an appropriate sanction order. Shehady v. Pittsburgh Post-Gazette, 307 Pa.Super. 247, 251, 453 A.2d 18, 20 (1982).

Here, two months after trial had been completed and a decision rendered, appellee petitioned for and the trial court awarded general counsel fees in the amount of One Thousand ($1,000) Dollars. This award was based on an estimate of counsel fees incurred by appellee in trying the case. It was premised upon a belief by the trial court that if appellant had filed answers to appellee’s interrogatories, the case could have been resolved upon motion for summary judgment, thereby rendering trial unnecessary. The court concluded that it had been appellant’s failure to file answers to interrogatories which had rendered a trial necessary and that, therefore, the expenses of trial, including counsel fees, were recoverable by appellee.

This was inappropriate. In the first place, the trial court’s assumption that a trial could have been obviated by answers to interrogatories was not warranted. Appellant’s evidence, as we observed earlier in this opinion, was sufficient to create an issue of fact for the fact finder. If disclosed prior to trial, this information would not have supported a summary judgment.

Secondly, an award of counsel fees incurred in going to trial is not one of those sanctions which has been authorized specifically by Pa.R.C.P. 4019(c). Although this subsection is not necessarily intended to limit the discretion vested in the trial court by subsection (a)(1) (subsection (c)(5) authorizes “such order ... as is just”), it does provide guidance to the trial court called upon to enforce the discovery rules. The absence of express authority to award counsel fees, when viewed in the light of subsection (g) which authorizes discovery related counsel fees only after a two-step procedure there outlined, suggests that an award of general counsel fees should be made only in extreme cases of flagrant abuse.

Finally, an award of counsel fees incurred by appellee in trying the case was inappropriate under the circumstances here present. Appellee made no attempt to obtain a pre-trial order aiding in discovery and compelling appellant to answer its interrogatories. Instead, appellee elected to forego the remedy provided by the Rules and take its chances on proceeding to trial without compelling answers to interrogatories. After trial had been completed and a decision rendered, appellant could not for the first time seek a sanction order under Pa.R.C.P. 4019(a)(1) which required the opposing party to pay expenses incurred in trying the case without completed discovery. By failing to move pretrial in aid of discovery, appellant waived the right to recover such expenses after trial.

The judgment entered in favor of appellee for $14,784.26 is reversed, and the case is remanded to the trial court for findings of fact and decision in accordance with this opinion. The order directing appellant to pay counsel fees is reversed and set aside. Jurisdiction is not retained.

      . The entry of a partial summary judgment for this amount was clearly correct. The entry thereof has not been challenged on appeal.

      . The court also gave as a reason for its adjudication that Milsan had failed to prove an agency between Staylor and its creditors who allegedly seized Milsan’s cloth and for which Staylor allegedly extended a credit to Milsan. The trial court obviously misapprehended Milsan’s defense, for the existence of an agency relationship was entirely unnecessary to the credit which Milsan claimed.

      . This was the date of Milsan’s check sent to Staylor for the alleged purpose of paying the balance of its account indebtedness.

      . Neither appellant nor appellee has raised as an issue whether the parties’ rights are determined by the law of New York or the law of Pennsylvania, and with respect thereto we express no opinion. We observe, however, that both Staylor and Commercial are New York corporations and that the assignment was made in New York. Milsan, however, is a Pennsylvania corporation. The conflicts of law issue has caused us no concern because the Uniform Commercial Code has been adopted in both states, and the applicable provision in the New York law is identical with that in the Pennsylvania law. See: New York Uniform Commercial Code § 9-318(1) (McKinney Supp. 1983).

      . Pa.R.C.P. 4019(c) provides as follows:
      (c) The court, when acting under subdivision (a) of this rule, may make
      (1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact[s] shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

        (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;
      (3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;
      (4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;
      (5) such order with regard to the failure to make discovery as is just.


text:
    476 A.2d 22
    Allen H. SMITH, Appellant, v. Rees GRIFFITHS and Liverant, Senft & Cohen.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1983.
    Filed April 19, 1984.
    Petition for Allowance of Appeal Denied Aug. 27, 1984.

      Marc Roberts, York, for appellant.
    Patricia Ann Butler, York, for appellees.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

Allen H. Smith, an attorney, filed a civil action against Rees Griffiths, the lawyer representing Smith’s wife in a marital action. He averred in his complaint (1) that he had been defamed by his wife’s lawyer and (2) that the lawyer had caused injury to him by giving Smith’s wife incorrect legal advice. The trial court sustained preliminary objections in the nature of a demurrer and entered judgment in favor of Griffiths. An appeal from this judgment requires that we examine and define (1) the nature of the privilege which protects defamatory communications made by an attorney on behalf of a client and (2) the duty, if any, owed by a lawyer to an adverse party to a dispute.

Appellant’s complaint contains three counts. The first two counts allege causes of action respectively for libel and slander. The first count complains of two letters written by Griffiths to Judson E. Ruch, Esquire, a master appointed by the court to hear Mrs. Smith’s petition for alimony, alimony pendente lite, counsel fees and costs. The representations in these letters were that Smith had not paid counsel fees and expenses as previously agreed; had leased the marital domicile and appropriated the rentals to his own use; and had failed to pay real estate taxes on the marital property, as a result of which the property was to be listed for tax sale. The second count in the complaint avers that Griffiths slandered Smith by oral statements to the effect that Mrs. Smith was distraught because appellant had failed to pay a support order previously entered by the Honorable James E. Buckingham. These statements were allegedly made in the judicial chambers of Judge Buckingham during an unrelated pre-trial conference attended by Smith and Griffiths. Preliminary objections filed to the complaint contended that the communications were privileged and, therefore, not actionable.

“[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom. . . . [Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt. . . . [I]t must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.” DeSantis v. Swigart, 296 Pa.Super. 288, 286, 442 A.2d 770, 771 (1982), quoting Donnelly v. DeBourke, 280 Pa.Super. 486, 489-490, 421 A.2d 826, 828 (1980) (overruled on other grounds). Accord: Stein v. Richardson, 302 Pa.Super. 124, 136, 448 A.2d 558, 564 (1982); Duffee v. Judson, 251 Pa.Super. 406, 409, 380 A.2d 843, 844-845 (1977).

The law is now well established that “[a]ll communications pertinent to any stage of a judicial proceeding are accorded an absolute privilege which cannot be destroyed by abuse.” Binder v. Triangle Publications, Inc., 442 Pa. 319, 323, 275 A.2d 53, 56 (1971). Accord: Greenberg v. Aetna Insurance Co., 427 Pa. 511, 514, 235 A.2d 576, 577 (1967); Barto v. Felix, 250 Pa.Super. 262, 266, 378 A.2d 927, 929 (1977). This privilege exists in favor of counsel so that he will be permitted to represent his client’s interests to the fullest extent. Binder v. Triangle Publications, Inc., supra 442 Pa. at 324, 275 A.2d at 56. All persons involved in a judicial proceeding are encouraged by the privilege to speak frankly and argue freely without danger or concern that they may be required to defend their statements in a later defamation action. See: Yearsley v. Franklin Lamp Manufacturing Co., 97 Pa.Super. 538, 540 (1929); Barto v. Felix, supra 250 Pa.Super. at 278, 378 A.2d at 935 (Spaeth, J. dissenting); Restatement (Second) of Torts § 586 (comment a). Although it is possible that “[wjrong may at times be done to a defamed party, ... it is damnum absque injuria. The inconvenience of the individual must yield to a rule for the good of the general public.” Yearsley v. Franklin Lamp Manufacturing Co., supra, quoting Kemper v. Fort, 219 Pa. 85, 94, 67 A. 991, 995 (1907). Whether a privilege exists is a question of law for the court. Montgomery v. Dennison, 363 Pa. 255, 265, 69 A.2d 520, 525 (1949); Rankin v. Phillippe, 206 Pa.Super. 27, 31, 211 A.2d 56, 58 (1965); Medico v. Time, Inc., 509 F.Supp. 268, 272 (1980), aff'd, 643 F.2d 134, cert. denied, 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981). Where the question of the relevancy and pertinency of matters communicated is to be inquired into, all reasonable doubt must be resolved in favor of relevancy and pertinency. Greenberg v. Aetna Insurance Co., supra 427 Pa. at 514-515, 235 A.2d at 577-578; Nagle v. Nagle, 316 Pa. 507, 511, 175 A. 487, 489 (1934); Jennings v. Cronin, 256 Pa.Super. 398, 403, 389 A.2d 1183, 1185 (1978).

To achieve the beneficial purposes of the rule, an absolute privilege has been held applicable to defamatory material contained in a petition for writ of habeas corpus, Passon v. Spritzer, 277 Pa.Super. 498, 419 A.2d 1258 (1980); a brief, Id.; an affidavit, BBCI, Inc. v. Canada Dry Delaware Valley Bottling Co., 393 F.Supp. 299 (E.D.Pa.1975); and counsel’s statements to a client, Jones v. RCA Music Service, 530 F.Supp. 767 (E.D.Pa.1982).

The extent of a lawyer’s privilege has been defined in the Restatement (Second) of Torts § 586 as follows:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

Other jurisdictions, applying the Restatement view, have held the privilege applicable to a letter from counsel to an insurer as a preliminary to suit, Chard v. Gallon, 277 Or. 109, 559 P.2d 1280 (1977); a letter from counsel to a party against whom suit was seriously contemplated, Sriberg v. Raymond, 370 Mass. 105, 345 N.E.2d 882 (1976); a letter from counsel to the attorney for an adverse party, Romero v. Prince, 85 N.M. 474, 513 P.2d 717 (Ct.App.1973); letters from counsel to a client and to the judge in a pending action, Smith v. Hatch, 271 Cal.App.2d 39, 76 Cal.Rptr. 350 (1969); a letter from counsel to a judge concerning acts of former counsel in a pending action, Richeson v. Kessler, 73 Idaho 548, 255 P.2d 707 (Idaho 1953); an affidavit and letter to a party from counsel seeking settlement, Zirn v. Cullom, 187 Misc. 241, 63 N.Y.S.2d 439 (N.Y.Co.1946).

A review of these decisions persuades us that the privilege was correctly applied by the trial court to letters written by counsel on behalf of a party to a quasi-judicial officer appointed to hear issues which were a part of divorce proceedings then pending. The privilege was also applicable to oral communications by counsel to a judge that Smith had not paid support as required by an order which the judge had entered against him.

The purpose for which the privilege exists cannot fully be achieved by limiting the privilege to structured or formal proceedings. To permit an attorney to best serve a client, the privilege must be broad enough to include occasions when a client’s cause is being advocated under less formal circumstances. Thus, the privilege extends to and includes preliminary demands, as well as informal conferences and negotiations conducted after litigation has been commenced or when litigation is seriously contemplated. “[I]t is, on the whole, for the public’s interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech, in conducting the causes, and advocating and sustaining the rights, of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions.” Sriberg v. Raymond, supra 345 N.E.2d at 884, quoting Hoar v. Wood, 3 Met. 193, 197-198 (1841).

The third count of appellant’s complaint contains averments that Griffiths gave Mrs. Smith “illegal, improper and reckless” advice that she could remove property from the home which previously had been occupied by Mr. and Mrs. Smith as their marital home. This advice, appellant alleges, was designed to harass and injure him so that he would agree to a property settlement. Pursuant to this advice, it is alleged, Mrs. Smith removed from the marital home certain unidentified items of property which appellant had purchased following separation and which were owned solely by him.

The general rule is that an attorney will be held liable for negligence only to his client. In the absence of special circumstances, he will not be held liable to anyone else. 7 Am.Jur.2d, Attorneys at Law § 232. See also: Worldwide Marine Trading Corp. v. Marine Transport Service, Inc., 527 F.Supp. 581 (E.D.Pa.1981); Sachs v. Levy, 216 F.Supp. 44 (E.D.Pa.1963); Annotation: Attorneys — Liability to Third Parties, 45 A.L.R.3d 1181 et seq. The basis for this rule is the absence of privity between the lawyer and one with whom he has no contract of employment.

In more recent years the privity rule has been subjected to criticism because a strict application contains too great a potential for unrecompensable injury to innocent third persons. On the other hand, to abandon the concept completely entails too vast a range of the lawyer’s potential liability to third parties. 45 A.L.R.3d 1185. These concerns have caused some courts, most notably the courts of California, to reject an absolute rule in favor of a balancing test. Under such a rule, the liability of an attorney to third persons is determined “on a case by case basis, by the balancing of a number of factors, including the extent to which the transaction involved the third party, the foreseeability of harm to the third party, the closeness of the connection between the negligence and the injury suffered, and the policy of preventing future harm.” See: 45 A.L. R.3d 1186 et seq. A similar approach was advocated by a panel of this Court in Guy v. Liederbach, 279 Pa.Super. 543, 421 A.2d 333 (1980). On allocatur, however, the Supreme Court expressly rejected a balancing test and continued to adhere to the privity rule. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). The Supreme Court, after careful consideration, concluded that policy considerations, as well as unsatisfactory experiences with the California rule, compelled adherence to the rule requiring that an attorney-client relationship be shown before a cause of action can be maintained against an attorney for professional negligence. Id., 501 Pa. at 58, 459 A.2d at 750. These policy considerations are even stronger where the attorney is representing a client who is involved in litigation. In such circumstances, the law is clear that the attorney owes no duty of care to the adverse party but only to his own client. See: Weaver v. Superior Court, 95 Cal.App.3d 166, 156 Cal.Rptr. 745 (1979). To impose upon an attorney a duty of care to the adverse party would place the attorney in a position where his own interest would conflict with the interests of his client and prevent him from exerting a maximum effort on behalf of the client. It would place an undue burden on the profession and would diminish the quality of the legal services rendered to and received by the client. Weaver v. Superior Court, supra. Where an attorney represents a client in litigation or during arms length negotiations, the public interest demands that attorneys, in the proper exercise of their functions as such, not be liable to adverse parties for acts performed in good faith and for the honest purpose of protecting the interests of their clients. Gifford v. Harley, 62 A.D.2d 5, 404 N.Y.S.2d 405 (3d Dept.1978).

If an attorney’s conduct is motivated by malice or if he commits an intentional tort, on the other hand, he may become personally liable for damage suffered by a third person. 7 Am.Jur.2d, Attorneys at Law § 233. See: Worldwide Marine Trading Corp. v. Marine Transport Service, Inc., supra; Adelman v. Rosenbaum, 133 Pa.Super. 386, 3 A.2d 15 (1938); Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780, 173 A.L.R. 819 (1947); Roberts v. Ball, Hunt, Hart, Brown & Baerwitz, 57 Cal.App.3d 104, 128 Cal.Rptr. 901 (1976); Annotation, Liability of Attorney for Malicious Prosecution, 27 A.L.R.3d 1113 et seq. See also: Pride v. Pride, 29 Del.Co. 352 (Pa.1939). Appellant contends in the instant case that the averments of his complaint are sufficient to state a cause of action for an intentional tort. We disagree.

The general rule of liability for an intentional tort is articulated in Section 870 of the Restatement (Second) of Torts as follows:

One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor’s conduct does not come within a traditional category of tort liability.

This section of the Restatement requires an intentional act which is “unjustifiable” and “culpable” and which causes harm to a legally protected interest of the plaintiff. Aside from the issue of privilege, which we do not now decide, whether conduct is actionable requires an evaluation of the following four factors: “(1) the nature and seriousness of the harm to the injured party, (2) the nature and significance of the interests promoted by the actor’s conduct, (3) the character of the means used by the actor and (4) the actor’s motive.” Restatement (Second) of Torts § 870, comment e.

In the instant case, the averments of the complaint do not disclose an intentional tort. It is not alleged that the attorney’s advice to his client was intentionally erroneous in order to injure appellant; it is alleged only that the advice was recklessly given. Moreover, the motive for the advice, which plaintiff alleges to be recklessly incorrect, was to induce appellant to agree to a property settlement with appellee’s client. The advice was given by an attorney to a client whom he represented in an acrimonious divorce action. The attorney’s advice was that his client could enter what was formerly the marital home and remove personal property. Even if the advice had been intended to persuade appellant to agree to a property settlement, the attorney’s motive was not improper; he was clearly acting in the interests of his client. For such advice there can be no liability to the adverse party.

Absent an intent to harm a third person by using a client unjustifiably as an instrument to inflict harm, we will not impose liability upon an attorney for advice which he has given in good faith to a client for the purpose of serving a justifiable and proper interest of the client.

The order sustaining preliminary objections in the nature of a demurrer to the complaint and entering judgment in favor of appellee is affirmed.

      . The complaint also named as a party the law firm with which Rees Griffiths was associated. The decision which we reach makes it unnecessary to determine whether or to what extent principles of respondeat superior are applicable to intentional torts committed by members and/or associates of law firms.


author: CERCONE, Judge:

text:
    476 A.2d 27
    Michael J. AIELLO and Kathy Ann Aiello v. ED SAXE REAL ESTATE INC., and Sidney F. Jones, Jr., Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1983.
    Filed April 19, 1984.
    Petition for Allowance of Appeal Granted Sept. 17, 1984.

      Daniel W. Shoemaker, York, for appellants.
    Henry O. Heiser, III, Gettysburg, for appellees.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   CERCONE, Judge:

This appeal arises from the judgment entered against Ed Saxe Real Estate, Inc., and its salesperson, Sidney F. Jones, Jr., who were defendants in an action in trespass for fraudulent misrepresentation. Plaintiffs, Michael J. and Kathy Ann Aiello, sought to prove that Jones deliberately misrepresented to them the soil conditions of a tract of land which they eventually purchased. Because the soil was unsuitable for a conventional sewage system, a fact which they claimed was known to Jones, but not conveyed to them in spite of their direct inquiries, their plans to subdivide the tract in the manner which they had intended were thwarted. A jury awarded the plaintiffs, appellees herein, a verdict in the amount of $13,400.00 against Jones, and a verdict of $12,000.00 against Ed Saxe Real Estate, Inc., hereinafter Saxe. For the reasons set forth below, we vacate the judgment in favor of appellee as against appellant Saxe, and enter judgment N.O.V. in Saxe’s favor. We affirm the judgment as to appellant Sidney F. Jones, Jr.

In reviewing a lower court’s denial of a motion for judgment non obstante veredicto, we will only reverse the lower court when we find “an abuse of discretion or an error of law which controlled the outcome of the case.” McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982). In ruling upon these motions, the trial judge must consider “the evidence, together with all reasonable inferences that may be drawn therefrom ... in the light most favorable to the verdict winner.” Carrender v. Fitterer, 310 Pa.Super. 433, 436, 456 A.2d 1013, 1014 (1983). Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary, the trial judge must grant said motions when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case. Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 455 A.2d 637 (1983).

It was established at trial that appellees, a young married couple, decided to buy some land in order to subdivide it and gain a profit on their investment. They contacted Jones who showed them several tracts, including 87 acres owned by one Lystad, not a party to this case. Evidence established that a prior sales agreement for this Lystad tract in the amount of $80,000.00, had fallen through owing to the failure of the land to pass five percolation tests for a conventional sewage system. A series of twenty-one soil probes had been conducted. Twenty showed the soil was unsatisfactory; one indicated that the soil was marginally suitable for a sand mound system, but not a conventional system.

Appellees testified that they specifically asked Jones about the soil’s suitability for a sewage disposal system. Jones reassured them that five soil percolation tests had been performed on the land, and that three revealed a suitability for a conventional system, and that two were conducive to the sand mound system. Appellees, in reliance on these representations, then purchased the tract for $80,-000.00. It was only after their acquisition of the land and subsequent testing that they discovered the land was not as Jones had represented to them. Jones denied making any statements about five percolation tests and insisted that he disclosed to appellees just how poor the soil was. Ed Saxe testified that he owned the real estate firm which is also appellant in this case. As the trial court stated in its opinion, it is undisputed that Saxe Real Estate had no knowledge of any representation when it was made, did not participate in making it, and has not expressly ratified it. It is also undisputed that no percolation tests were performed on the property prior to appellees’ purchase and that the soils were poor.

Appellees’ theory against Ed Saxe Real Estate Company, Inc., was solely on the theory of respondeat superior. After pre-trial briefs and arguments on this issue, and additional argument at sidebar, the trial court ruled, as a matter of law, that Saxe could indeed be found liable, if the jury found liability existed as to Jones. This ruling of the trial court was in error, and, which fact compels our reversal and entry of judgment in favor of Saxe.

Our starting point is the tort of fraudulent misrepresentation or deceit, which is the basis of the within cause of action. Our court has set forth the elements of such an action.

The elements of a fraud and deceit action in trespass may be said to consist of: (1) a false representation of an existing fact, Fidurski v. Hammill, 328 Pa. 1, 195 A. 3 (1937); (2) if the misrepresentation is innocently made, then it is actionable only if it relates to a matter material to the transaction involved; while, if the misrepresentation is knowingly made or involves a non-privileged failure to disclose, materiality is not a requisite to the action, DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644 affirming 11 Pa.D. & C.2d 447 (1958); (3) scienter, which may be either actual knowledge of the truth or falsity of the representation, reckless ignorance of the falsity of the matter, or mere false information where a duty to know is imposed on a person by reason of special circumstances (16 P.L.E., Fraud §§ 7, 4) reliance, which must be justifiable, so that common prudence or diligence could not have ascertained the truth; and (5) damage to the person relying thereon. Shane v. Hoffmann, 227 Pa.Superior Ct. 176, 182, 324 A.2d 532, 536 (1974).

And in the same case, we explained that, in requiring proof of scienter on the part of a principal at the time of a misrepresentation made by an agent, our law in Pennsylvania does not follow the general rule. In Carl W. Littler et ux. v. Everett B. Dunbar, trading as Acme Real Estate Company, et al., 166 Pa.Superior Ct. 271, 70 A.2d 365, reversed on other grounds, 365 Pa. 277, 74 A.2d 650 (1950), an agent of Dunbar informed the purchasers of a home that the attached garage, for which he had no key, was certainly long enough to accommodate any then modern automobile like the purchasers’ Lincoln Zephyr. On the strength of his representation, the purchasers signed a sales agreement and paid $1,000.00 in hand money toward their purchase of the house. When the inadequacy of the garage was discovered, the purchasers sued only the broker Dunbar, to recover their hand money. Citing to the necessity of scienter on the part of the broker in order to find him liable in an action for trespass in fraud and deceit based on his agent’s misrepresentation, we entered judgment N.O.V. for the purchasers’ failure to allege or prove the broker’s scienter.

This leads us to Shane v. Hoffmann, supra. In that case, plaintiffs were purchasers of a residence with an undisclosed sewage problem. When they were surprised by the flooding of their basement with sewage a short while after they moved in, the Shanes brought suit against one James F. Hoffmann, individually and t/d/b/a C.J. Hoffmann Agency with three other Hoffmanns, and against the vendor. It was undisputed that the salesman who made the misrepresentations about the plumbing was also a broker and partner in the real estate agency that was also sued. The agency did not contest its liability. It appears, then, that in Shane, the salesperson was also the broker; thus, the respondeat superior dilemma was not present as between salesperson and broker, as in the instant case and in Dunbar, supra. Our court said:

“Under the circumstances, we hold that the Agency and its salesman are liable for damages to the purchasers-appellees who relied on representations made by them regarding the condition of the sewer system, the true condition being known at the time the representations were made.” Shane v. Hoffmann, supra, 227 Pa.Super. at 183, 324 A.2d at 537.

Where the importance of scienter arose in Shane was in plaintiffs’ suit against the vendor. Our court cited the necessity of scienter in order to hold the vendor liable. Thus, our court declined to attribute vicarious liability to the broker in a broker/salesperson relationship for the tort of fraud and deceit, but found the vendor herself violated her duty to disclose a dangerous condition known to her (Restatement of Torts, 2d, § 353) when she was asked at the closing about the plumbing in the house. Thus, her own scienter was sufficiently proven. It was on that theory that the judgment was affirmed.

Thus, the Pennsylvania requirement of scienter as to fraud and deceit when deciding a broker’s liability in a broker/salesperson relationship is still intact after Shane.

The trial court did affirm the viability of the scienter requirement in general, but it found as a matter of law that because the nature of the real estate broker/salesperson relationship is that of master/servant, that, in that case, the scienter requirement for fraud drops out. Appellee and the lower court advance the unique tenor of fraud in a real estate context as not requiring the scienter element. They cite the “Real Estate Licensing Act,” Act of Feb. 19, 1980, P.L. 15, No. 9, 63 P.S. § 455.101, et seq., which requires strict supervision of salespersons by the brokers who employ them. However, the control evidenced by that Act does not serve to hold a broker for every misrepresentation of a salesperson employed by him, absent his or her own knowledge. The Act so holds in the context of license revocation.

63 P.S. § 455.702 Imputed knowledge, limitations
No violation of any of the provisions of this act on the part of any salesperson, associate broker, or other employee of any licensed broker, shall be grounds for the revocation or suspension of the license of the employer of such salesperson, associate broker, or employee, unless it shall appear upon the hearings held, that such employer had actual knowledge of such violation. A course of dealing shown to have been followed by such employee shall constitute prima facie evidence of such knowledge upon the part of his employer.

In the Act, therefore, which outlines the important duties and responsibilities of real estate personnel as they relate to each other, a broker’s actual knowledge must be present before a wrongful act of an employee affects his or her licensing status.

1980, Feb. 19, P.L. 15, No. 9, § 702, imd. effective.

We hold, therefore, that in an action in trespass for fraudulent misrepresentation against a broker as principal, on a theory of respondeat superior for the tortious acts of its salesperson/agent, scienter of the broker must be established in order for recovery to lie against the broker. In the instant case, no evidence was presented even to suggest that Saxe was aware of Jones’ misrepresentation regarding the soil tests. Accordingly, we vacate the judgment in favor of appellees as against appellant Saxe, and enter judgment N.O.V. in favor of Saxe.

Our attention now turns to appellant Jones who, in his own right, challenges the judgment entered against him on the basis of various alleged trial errors. We will address these seriatim.

Appellant alleges two court errors which are intrinsically connected to the defense attorney’s dual representation of Jones and Saxe. He claims defense counsel should have been permitted to cross-examine each defendant, since each could be considered an adverse party as related to the other. He relies on Peters v. Shear, 351 Pa. 521, 41 A.2d 556 (1945). But, in that case, plaintiff-wife’s attorney called her husband on direct examination. He had been joined as an additional defendant by the defendant in an auto accident case. Plaintiff’s attorney sought to set the stage for the facts in which the husband figured as the driver of the car in which his wife was injured. The court held that the attorney for the husband as additional defendant would be permitted to cross-examine him. In the instant case, the defendants were both called as on cross-examination by plaintiffs’ counsel, not on direct, as in Peters.

Here we have a different situation. Defense counsel’s problem stemmed not from the court’s refusal to allow him to cross-examine his own clients, but from the fact that he represented both at all. Counsel pleaded surprise when, at the close of plaintiffs’ case plaintiffs sought to amend their complaint to include the theory of agency as underpinning their case against Saxe. However, in this predicament we must agree with the lower court and with appellees. Counsel for appellants revealed by his request to lead his own clients that he was aware of their inconsistent defenses. It was not suddenly at the close of plaintiffs’ case that he was faced with a totally different theory of liability as between his two clients. Rather, the vicarious liability issue was the subject of pre-trial briefs and in-court argument albeit the nonconformity of the complaint with these developments. At no time did counsel for appellants seek a mistrial or the appointment of additional counsel for one of his clients. For him to complain now that trial error was responsible for his predicament when he should have been aware of his clients’ inconsistent defenses prior to appellees’ motion to amend strains credulity. Pa.R.C.P. 1033 clearly permits an amendment to conform the pleading to the evidence. Appellant relies on West Penn v. Bethlehem Steel Corp., 236 Pa.Superior Ct. 413, 348 A.2d 144 (1975), in which our Court affirmed the lower court’s denial of an amendment on the last day of an eight week trial when the amendment would have effected a complete change in the theory of liability. But unlike West Penn, in the instant case the amendment was implicit from developments early in the trial. We cannot say that the lower court abused its discretion in granting appellees’ motion to amend.

As for appellant’s contention that the Court erred in sustaining an objection to his question of witness Shultz regarding the feasibility of constructing a waste treatment plant to service a multi-subdivided tract, we note that counsel had already twice posed the question immediately prior to the objected question. The witness twice answered that the question was too speculative to be addressed. We see no error in the court’s ruling.

Appellant argues that counsel for appellees improperly argued in his closing that appellees

“... are young people. They don’t have a lot of money. You didn’t get the impression I would assume that they have a lot of money. That’s a lot of dollars.” and
“Had they known the facts are they going to offer to buy that land? No. If they know the facts, they’re going to say we’ll buy it for fifty and sixty. The soil is no good.”

While our Supreme Court has ruled that references to the relative affluence of parties are highly inappropriate, Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966), we do not deem the challenged statements to be so prejudicial to warrant the grant of a new trial to Jones.

Additionally, appellant argues that counsel for appellees in his summation improperly placed the burden of production of certain test results on appellants. Objectionable statements in a closing argument must be viewed in the context of both arguments. Commonwealth v. Dozier, 294 Pa.Superior Ct. 249, 439 A.2d 1185 (1982). Appellees’ attorney argued before the jury:

“... I think Mr. Shoemaker [counsel for appellants] said why weren’t these test results asked for at settlement. Where are they? They have never been produced. They never produced any kind of test reports;' one sandmound, two sandmounds, three sandmounds, nothing produced at all from the files of Ed Saxe Real Estate, Inc. Never produced. What can you draw from that? I suggest that you draw your common sense and think about the demeanor of the witnesses and some of the inconsistencies in the testimony.”

From the context of the challenged statements, it is clear that counsel for appellees was not referring to appellant’s burden at trial, but to their behavior during the course of negotiations with appellees regarding the purchase of the land. We see nothing prejudicial in this.

As for appellant’s contentions regarding damages, we find no error in either the court’s supplemental charge, nor in the jury’s award of loss of bargain damages. Plaintiffs are required to prove their damages by a preponderance of the evidence; damages not proved are not recoverable. Wright v. Buckeye Coal Co., 290 Pa.Superior Ct. 231, 434 A.2d 728 (1981). The Court instructed the jury that loss of the benefit of the bargain was .

“The difference between the profits that they would have reasonably expected to gain from the property had it been as represented and which have been proven to a reasonable degree of certainty minus the profits that they will recover from the property as it is.”

Appellee presented the testimony of three witnesses from whom the jury was able to determine the damages which it apportioned. Moreover, we see that no prejudice inured to appellant by the court’s supplemental charge to the jury on the damages issue.

The judgment is affirmed as to appellant Jones.

Judgment is vacated in favor of appellant Ed Saxe Real Estate, Inc.; judgment N.O.V. is entered in favor of appellant Ed Saxe Real Estate, Inc. Verdict and judgment against appellant Sidney F. Jones, Jr., are affirmed.

WIEAND, J., concurs in the result.

      . The lower court granted the motion of both defendants for a compulsory nonsuit on assumpsit counts.

      . A principal is liable for his agent’s misrepresentation made within the scope of his authority even though amounting to fraud and deceit. See, Restatement of Agency, §§ 257 and 258.

      . The necessity of scienter was explained in Eckrich v. DiNardo, 283 Pa.Superior Ct. 84, 91, 423 A.2d 727, 730 (1980).

      . Given our disposition on this issue, it is unnecessary for us to discuss appellant’s allegations that the lower court erred in ruling as a matter of law that Jones was an employee of Saxe, not an independent contractor.

      . Concretely, counsel's inquiry of Jones was objected to and sustained because of its leading nature:
      "Mr. Jones, in your relationship with the corporation, would I be correct to say that you’re an agent or act as an agent of Ed Saxe.” Counsel, acting on Saxe’s behalf, sought to elicit from Jones the fact that an independent contractor status existed between the two. It may not have been in Jones’ best interest for the contractual arrangement to be characterized as "independent contractor,” while Saxe would definitely benefit from such an arrangement.


author: PER CURIAM:

text:
    476 A.2d 34
    COMMONWEALTH of Pennsylvania v. Robert DAVID, Appellant.
    Submitted May 13, 1983.
    Superior Court of Pennsylvania.
    Filed April 19, 1984.

      Jonathan Blum, Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

On April 13, 1981, appellant, Robert David, appeared before the Honorable Arthur D. Dalessandro and entered pleas of guilty to the following charges (Record 7-8):

No. 120 of 1981, Theft by Deception;
No. 121 of 1981, Forgery;
No. 122 of 1981, Theft by Deception;
No. 123 of 1981, Forgery;
No. 124 of 1981, Theft by Deception;
No. 125 of 1981, Forgery;
No. 202 of 1981, Theft by Deception;
No. 216 of 1981, Forgery.

Sentencing was set for June 2, 1981.

At the April 13, 1981 hearing, the following testimony occurred:

Mr. PODCASY: If it please the Court; your Honor, concerning criminal information No. 202 of 1981 my understanding is that on November 29, 1980, the defendant and Mr. Cupp went to the residence of one Robert Leggett at which they secured certain checks and moneys amounting to $260.00. The checks owned by Mr. Leggett were issued by the Nevada National Bank. Mr. Leggett at no time authorized the defendant to have or use the checks or to take them originally.
MR. BLUM: Your Honor, for the purpose of clarification, on the charge on 202 of 1981 involving Mr. Cupp, [co-defendant], the reason the burglary and the criminal conspiracy are not being plead is because Mr. David was the driver of the car and did not enter the residence or apartment building. Aside from that I have no questions of the District Attorney. I would like to get a figure from the bank of what is owed.
THE COURT: I have a figure that indicates that this man has taken $11,410.00 in seven days and that a total of $1,630.00 a day was taken.
THE COURT: The Court finds that the defendant’s participation in the plea bargain agreement and the tender of guilty pleas as set forth by the Assistant District Attorney, and as verified by the Court’s inquiry of the defendant, was done voluntarily, intelligently and understanding^ and after consultation with trial counsel.
The Court finds that this defendant is an intelligent person who is fully aware of all of his rights and is fully aware of everything that has happened concerning his appearance in court today.

Guilty Plea Transcript, April 13, 1981, at 17, 19, 27.

On June 2, 1981, the defendant again appeared before Judge Dalessandro, again represented by Jonathan Blum, Esquire, Assistant Public Defender. Mr. Blum informed the court that appellant wished to withdraw the guilty plea to No. 202 of 1981. After reviewing the informations and counts thereof to which appellant had pled guilty, the court denied the motion to withdraw the guilty plea:

“THE COURT: Mr. David.
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: We went through very detailed explanations and proceedings when you submitted a plea of guilty on a number of charges on April 13th, 1981. They were very thoroughly and clearly explained to you. Also, there were a number of charges that were to be nol prossed, meaning dropped. I was completely convinced that you fully understood what was taking place and that you understood what you were doing. And I stated for the record my conclusions as to the fact that you tendered the plea to the various charges knowingly, intelligently, voluntarily, understandingly and after consultation with Counsel. Now, Mr. Blum has stated that you want to withdraw your guilty pleas.
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: What’s the basis for that?
“THE DEFENDANT: At the time of my hearing last time, I didn’t know if the witnesses that I have now, that I have talked to, that can indicate that I had no part in the theft or planning of this, or burglary of the checks.
“THE COURT: There has been no guilty pleas to those charges. The guilty pleas have been to forgeries and to thefts from the bank.
“MR. BUTERA: That’s correct. They were thefts by deception charges that he pled to.
“THE COURT: Yes. There has been no guilty plea to any offense concerning the unlawful taking of the checks from the owner of the checks. I’ll repeat the guilty pleas to you.
“Information 121, the first count, forgery. That has nothing to do with charging you with stealing the checks from Mr. Robert W. Leggett.
“Information 122, second count, theft. That basically charges that you obtained the property of the Peoples Bank of Nanticoke, specifically $700, by deception. That doesn’t charge you with stealing checks.
“Information 123, a charge of forgery.
“Information 124, a charge of theft. That you intentionally obtained or withheld property of another by deception, to wit, $1400, the property of Peoples National Bank of Nanticoke.
“Information 125 is a forgery charge.
“Information 202 is a theft charge; and 216, a forgery charge.
“Is there anything else you want to submit?
“THE DEFENDANT: No, Your Honor.
“THE COURT: Do you understand what I’m speaking of now?
“THE DEFENDANT: Yes, sir.
“THE COURT: You didn’t plead guilty to stealing anything from Mr. Leggett. You entered a plea of guilty to forging his name on a check. And also you entered a plea of guilty to the various charges of obtaining property, which was money of the Peoples Bank of Nanticoke, by deception. Those are the charges to which you entered a plea of guilty.
“MR. BLUM: Excuse me, Your Honor. I believe Information 202 would be taking.
“THE COURT: Can I see 202, please.
“MR. BUTERA: Your Honor, I don’t have the file on 202.
“THE COURT: 202 of ’81, third count charges that you and William James Cupp, on or about November 29, 1980, did unlawfully take or exercise unlawful control over a quantity of checks and United States currency; the total value of approximately $260, the property of Robert Leggett. Is that the charge that you say that you have evidence on?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: What’s the evidence that you have on that charge?
“THE DEFENDANT: Persons that have seen Mr. Cupp go into the building. Mr. Cupp admitted to two persons that he did enter the building and take money. And that he did have the key to the apartment that the checks were taken from.
“THE COURT: Are you saying to me today that although you admitted that charge on April 13th, 1981, that now you’re saying to me that you had nothing whatsoever to do with that?
“THE DEFENDANT: Yes, Your Honor.
“THE COURT: Well, why would you have admitted it on April 13th? We described it very clearly to you. We asked you if you knew what you were doing. We asked you if you realized that by pleading guilty you would be admitting that you performed the acts that I read to you from the third count of Information 202 of ’81.
“THE DEFENDANT: At the time that I pleaded guilty, Your Honor, I didn’t know about the witnesses.
“THE COURT: Well, the fact that you may not have known about the witnesses doesn’t seem to be connected with whether or not you did, in fact, participate in that crime. Do you follow me? In one instance you’re saying you did it. Now you’re saying there are witnesses who have a different story than what you, yourself, admitted. It’s inconsistent.
“THE DEFENDANT: Yes, I know, Your Honor. But at the time, I didn’t have any way of proving myself innocent.
“THE COURT: Well, why did you confess to that crime if you didn’t do it?
“THE DEFENDANT: Because I had no way to prove that I didn’t do it, Your Honor.
“THE COURT: Mr. David, that’s not the way the law works and we made it very clear to you, the nature of entering a plea of guilty.
“The third count of Information 202 of ’81, charges that, on or about the 29th day of November, 1980, William James Cupp and Robert David, did unlawfully take or exercise unlawful control over a quantity of checks and United States currency; a total value of approximately $260, the property of Robert Leggett, with intent to deprive him thereof.
“Did you and Mr. Cupp steal the checks and some money of Robert Leggett, on or about November 29th, 1980?
“THE DEFENDANT: No, sir, I didn’t.
“THE COURT: Well, why did you say you did on April 13th, 1981?
“THE DEFENDANT: Because I didn’t have any way to prove myself different. I had no way to prove to you or anyone else that I didn’t do it.
“THE COURT: No. I made it very clear to you that you didn’t have to prove you’re innocent. That the Commonwealth has to prove beyond a reasonable doubt all of the elements of the crime charged beyond a reasonable doubt. I made that extremely clear. And you do appear to be an intelligent person who knows very well what you’re doing. And I have no hesitation in arriving at that conclusion.
“Therefore, Mr. Blum, the only possible question on a withdrawal of a guilty plea would make reference to the third count of Information 202 of ’81.
“MR. BLUM: That would be how I would see it, Your Honor. I don’t know if Mr. David agrees with me or not.
“THE COURT: Do you understand that, Mr. David?
“THE DEFENDANT: Yes, sir.
“THE COURT: The motion to withdraw a guilty plea is denied.”

Sentencing Transcript, June 2, 1981, at 2-8.

The court then sentenced appellant as follows:

On Information No. 121 of 1981, minimum of years less 1 day and a maximum of 5 years less 1 day in the Luzerne County Prison.
On Information Nos. 123, 125 and 216 of 1981, identical sentence as that on No. 121 of 1981. All sentences to run concurrent.
On Information No. 122 of 1981, placed on probation for 5 years with the Pennsylvania Board of Probation and Parole. Probation to commence at the expiration of the maximum term on the felony charges filed to Nos. 121, 123, 125 and 216 of 1981.
On Information Nos. 124 and 202 of 1981, identical sentences as that on No. 122 of 1981. All probations to run concurrent.

Appellant was given credit for time served. Appellant was also ordered to make full restitution to the victim and pay the costs of prosecution on all charges including those nol-prossed by the Court. Costs to be paid within six months.

The court inadvertently omitted the sentence on No. 120 of 1981 at the June 2, 1981 sentencing proceeding. Appellant filed a timely motion challenging the validity of the guilty plea and/or petition to modify his sentence, which motion was denied by the court without a hearing on June 17, 1981. A notice of appeal was filed on appellant’s behalf, and said appeal was docketed in the Superior Court of Pennsylvania to No. 2122 Philadelphia, 1981. On May 19, 1982, appellant was sentenced on No. 120 of 1981 to a minimum of 2Va years and a maximum of 5 years to commence at the expiration of the sentence imposed on June 2, 1981 on Nos. 121, 123, 125 and 216 of 1981. The Court further changed appellant’s original sentence from the Luzerne County Prison to a state correctional institution. Appellant filed a timely petition to modify sentence, which petition was denied by the court without a hearing on June 1, 1982. A notice of appeal was filed on appellant’s behalf, and said appeal was docketed in the Superior Court of Pennsylvania to No. 1828 Philadelphia 1982. Appellate counsel filed a petition in this court to consolidate both of appellant’s appeals because they both involved the same plea agreement, which petition was granted on August 9, 1982.

In Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976), our supreme court pointed out that in determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, the test to be applied by the trial courts is fairness and justice. Further, the court said:

In Commonwealth v. Santos, 450 Pa. 492, 494-495, 301 A.d 829, 830 (1973), we stated additional reasons for allowing liberal withdrawal of guilty pleas prior to sentencing:
“... However, since guilty pleas involve the simultaneous waiver of so many constitutional rights, ... we have recently emphasized ‘that a request [to withdraw] made before sentencing ... should be liberally allowed.’ Commonwealth v. Forbes, 450 Pa. 185, 190, 299 A.2d 268, 271 (1973).
“The trial courts in exercising their discretion must recognize that ‘ “[b]efore judgment, the courts should show solicitude for a defendant who wishes to undo a waiver of all the constitutional rights that surround the right to trial — perhaps the most devastating waiver possible under our Constitution.” ’ Commonwealth v. Neely, 449 Pa. 3, 6, 295 A.2d 75, 76 (1972) [concurring opinion, quoting Dukes v. Warden, Connecticut State Prison, 406 U.S. 250, 258, 92 S.Ct. 1551 [1555] 32 L.Ed.2d 45 (1972) (concurring opinion) ].”

In Commonwealth v. Morales, 452 Pa. 53, 54-55, 305 A.2d 11, 13 (1973), this court, in further defining the conditions which would allow withdrawal of a guilty plea, stated:

“Although the court based its decision to refuse appellant’s motion to withdraw his guilty plea on a finding that appellant’s claim that he did not fully understand the nature and consequences of his plea was not to be believed, this would not in itself be controlling on the issue of whether to permit the withdrawal of a guilty plea before sentencing in the absence of a showing of prejudice. As we said in Santos, supra: ‘A trial court, [in presentence situations], abuses its discretion by not allowing a guilty plea to be freely withdrawn prior to sentencing when the Commonwealth would not be sustantially prejudiced by the plea withdrawal. ’ [450 Pa.] At page 496, 301 A.2d at page 831.” (Emphasis supplied.)

See also Commonwealth v. Starr, 450 Pa. 485, 489, 301 A.2d 592, 594.

A review of the above authorities indicates that the existence of substantial prejudice to the Commonwealth is

the crucial factor in determining whether to allow a presentence withdrawal of a guilty plea. In the instant case, we are of the opinion that the trial court erred in not allowing a presentence withdrawal of appellant’s guilty plea.

Id. 469 Pa. at 411-13, 469 A.2d at 240-41.

Applying the McLaughlin test to the above case we find no evidence from the record that would indicate that the Commonwealth would have been substantially prejudiced by the plea withdrawal.

As we recently said in Commonwealth v. Dickter, 318 Pa.Super. 372, 465 A.2d 1 (1983):

Although appellant’s petition was presented four years after he entered the pleas, it was nonetheless filed prior to the imposition of sentence. Pa.R.Crim. Procedure 320 provides:
At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

Our Supreme Court recently discussed the standard to be employed in reviewing petitions to withdraw pleas that are presented prior to sentence. In Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), the court wrote:

The standard for allowing withdrawal of a guilty plea prior to sentence was articulated in Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973) wherein we quoted with approval the following:

“Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant ’s pleas. ” ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty

(Emphasis in original.) Because the plea involves the simultaneous waiver of so many constitutional rights, a request to withdraw prior to sentencing is “liberally allowed.” Id. [450 Pa.] at 190, 299 A.2d at 271; see also Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976).

See Forbes, supra, 450 Pa. at 191, 299 A.2d at 271 (the test to be applied by trial courts is fairness and justice).

In Commonwealth v. Mosley, 283 Pa.Super. 28, 31, 423 A.2d 427, 428 (1980), we explained,

While a pre-sentence withdrawal request should be liberally considered, defendant must present a fair and just reason for withdrawing the plea. Even if a viable reason is asserted for withdrawal, withdrawal is only permitted if the Commonwealth has not been substantially prejudiced by reliance on the plea.

Id., 318 Pa.Superior Ct. at 375, 465 A.2d at 2.

In the Dickter case, the lower court’s refusal to permit the withdrawal of a guilty plea was affirmed by our court because substantial prejudice to the Commonwealth was demonstrated on the record had the withdrawal been permitted. It was pointed out that although the withdrawal request was made prior to sentencing, it was made four and one-half years after the plea was entered. The delay was caused by appellant’s unlawful flight. The crimes were committed against young boys whose ability to testify accurately would assumably be substantially diminished after the passage of so long a period. In the case sub judice, we have no evidence whatsoever of any prejudice to the Commonwealth.

Accordingly, the trial court abused its discretion by not allowing the guilty plea (to No. 202 of 1981 charging theft) to be freely withdrawn prior to sentencing. Accordingly, the judgment of sentence is reversed and the case is remanded with instructions to allow appellant to withdraw his guilty plea to No. 202 of 1981 charging theft. The court will then re-sentence appellant on the remaining uncontested guilty pleas. Jurisdiction is relinquished.

      . Further testimony indicated:
      THE COURT: Where is the money?
      THE DEFENDANT: We split and I had a ball in Nanticoke, I drank for a while. I lost money that way. I have no idea where Billie [Cupp, a co-defendant] put his.
      THE COURT: You split it with the other fellow named Cupp?
      THE DEFENDANT: Yes, sir.
      MR. NAGORSKI [Police Officer]: The only thing I can add, I don’t think Mr. Cupp got half the money, he got a small amount of it. I think Mr. David got the larger share.
      THE COURT: Were you the one that took the checks to the bank and got your hands on the checks?
      THE DEFENDANT: Yes, sir.
      THE COURT: Where was Mr. Cupp when you were doing that?
      THE DEFENDANT: My car. He didn’t get half, o.k.
      THE COURT: Whose idea was it to rip off the victim and the bank here, Mr. Leggett and the bank?
      THE DEFENDANT: Well, he took the checks.
      THE COURT: Who thought of the idea?
      THE DEFENDANT: Billie got the checks, when he got them I cashed them.
      THE COURT: Whoever knew that Mr. Leggett had $11,000.00 sitting in his checking account?
      THE DEFENDANT: William knew him.
      Guilty Plea Transcript, April 13, 1981, at 21, 22.

      . We have no way of knowing what effect the guilty plea at No. 202 of 1981 had on the sentences handed down on June 2, 1981 and May 19, 1982.

      . In this appeal appellant raises the following issues:
      I. Whether the sentences imposed by the lower court are so manifestly excessive as a result of the court’s failure to give adequate weight and consideration to the following:
      A) The defendant did not contemplate that his conduct would cause serious harm.
      B) The defendant’s conduct did not cause serious harm.
      C) The defendant is likely to respond affirmatively to probationary treatment.
      D) Lengthy confinement of the defendant would cause excessive hardship.

        II. Whether the lower court should have allowed the defendant to withdraw his guilty plea on some of the counts prior to sentencing.
      III. Whether the judge should have sentenced the defendant or allowed another judge to sentence.
      Brief for Appellant at 2.
      Due to our treatment of the second issue raised in this appeal, we deem it unnecessary to consider the first issue raised herein. We have directed that defendant be sentenced anew on all charges to which he pled guilty and which are not contested in this appeal. There is no merit whatsoever to the third issue raised by appellant.


author: HESTER, Judge:

text:
    476 A.2d 40
    COMMONWEALTH of Pennsylvania v. Columbus J. COTTMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1984.
    Filed May 11, 1984.
    Petition for Allowance of Appeal Denied Aug. 21, 1984.

      Harvey L. Anderson, Philadelphia, for appellant.
    Carolyn E. Alden, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

This is a direct appeal from appellant’s judgment of sentence. Appellant shot the unarmed victim with a sawed-off rifle after the victim borrowed appellant’s automobile without permission. Following a non-jury trial, appellant was adjudged guilty of a variety of charges stemming from this incident. Appellant raises three issues on appeal, none of which has merit. Specifically, appellant argues a violation of Pa.R.Crim.P. 1100, ineffectiveness of trial counsel for failing to obtain witnesses, and abuse of discretion by the sentencing judge. Having closely reviewed appellant’s assertions, we conclude that relief is not warranted. Hence we affirm.

In appellant’s initial argument, he contends that the Commonwealth failed to prove due diligence in its efforts to comply with Rule 1100. Appellant’s contention that the Commonwealth failed to act with due diligence centers on the absence of the complaining witness on the September 16, 1981, trial date. Consequently, he submits that the extensions granted to the Commonwealth were improper, and that he should be discharged.

Appellant was arrested on March 29, 1981, thereby establishing a run date of September 25, 1981. On September 18, 1981, the Commonwealth filed a motion to extend time in which to commence trial. It alleged therein that the victim, who was the sole eyewitness, had failed to appear for trial on three separate occasions in spite of a subpoena and a bench warrant. A hearing was scheduled for October 29, 1981, but at the request of the defense was continued until January 13, 1982. After the witness failed to appear on January 13, 1982, the Commonwealth amended its petition to aver that the complaining witness had been injured and was unable to attend trial. A Rule 1100 hearing was conducted on February 23, 1982, at which time the court granted the Commonwealth’s petition and ordered that appellant be tried on February 24, 1982.

It is well settled that the Commonwealth, in order to obtain an extension of time pursuant to Rule 1100(c), need only prove that reasonable efforts were made to secure a witness’ attendance. Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678 (1982); Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981). While the Commonwealth must demonstrate that it employed reasonable means to insure the appearance of the witness, it is not necessary that all methods be exhausted , in order to establish due diligence. Commonwealth v. Thompkins, 311 Pa.Super. 357, 457 A.2d 925 (1983). See also Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981).

Herein, after attempting to ascertain the victim’s whereabouts, the Commonwealth sought to compel his attendance at trial by serving him with a subpoena both personally and by mail. Unfortunately, personal service could not be effected; however, the complainant’s father accepted service. In addition, the Commonwealth repeatedly telephoned the witness in an effort to reach him, but to no avail. Finally, a bench warrant was issued for his arrest. We believe the above-cited conduct by the Commonwealth constituted a reasonable effort to produce the victim prior to his actual appearance and that a finding of due diligence was not error.

Appellant next requests that his case be remanded for an evidentiary hearing on the alleged ineffective assistance of counsel. A finding of ineffective assistance of counsel is only warranted when we are able to conclude that the particular course chosen by counsel did not have some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In order to examine such a claim, we employ a two-step analysis:

The Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); Commonwealth v. Sherard, supra.

Commonwealth v. Jennings, 285 Pa.Super. 295, 298-99, 427 A.2d 231, 232 (1981). If the underlying issue has no merit, and would have been a frivolous or futile effort on the part of counsel, failure to pursue such a course will not be deemed ineffectiveness. Commonwealth v. Nero, 250 Pa.Super. 17, 378 A.2d 430 (1977).

In the instant case, appellant asserts that counsel failed to call witnesses to testify in his behalf. However, nowhere does appellant recite the names of those who would so testify or the substance of their testimony. This Court has previously considered unsupported allegations such as the one advanced by appellant, and has held:

Absent a demonstration that missing testimony would be helpful, we cannot premise a finding of ineffective assistance of counsel on failure to secure such testimony.

Commonwealth v. Rainey, 282 Pa.Super. 15, 20, 422 A.2d 652, 655 (1980), citing Commonwealth v. Gardner, 250 Pa.Super. 86, 378 A.2d 465 (1977). Although given many opportunities to do so, appellant has consistently failed to name those witnesses who could affirm his innocence. The witnesses could have been identified at trial when appellant first referred to them in open court, or at sentencing when appellant again insisted that witnesses could establish his non-culpability. Finally, and most importantly, appellant failed to state the names of his desired witnesses in this appeal.

Appellant demands an evidentiary hearing in order to enhance the record in this regard. Frequently it is necessary for an appellate court to remand to the trial court for an evidentiary hearing to determine the basis of trial counsel’s omission. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). However, mere allegations of ineffectiveness standing alone on direct appeal will not warrant a remand for an evidentiary hearing if this Court is not presented with facts sufficient to support the claim. Commonwealth v. Blackwell, 312 Pa.Super. 117, 458 A.2d 541 (1983). To rule otherwise would serve to place less of a burden on a defendant asserting an ineffectiveness claim on direct appeal than a defendant advancing a like argument in a Post Conviction Hearing Act petition when both are seeking the same relief. To be entitled to a post-conviction evidentiary hearing, a petitioner seeking relief must allege facts which “if proven would entitle the petitioner to relief.” 19 P.S. § 1180-9. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Oliver, 280 Pa.Super. 274, 421 A.2d 719 (1980). Appellant will be held to no less a standard on direct appeal. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). Since he has failed to allege facts which would entitle him to relief or to outline a claim of arguable merit, appellant’s claim must be rejected.

Appellant finally assigns error to his sentence, which was modified following the grant of a petition for reconsideration. Although' appellant achieved a reduction in sentence, he nevertheless contends that the lower court failed to consider the mitigating circumstances introduced at his second sentencing hearing. For the following reasons, we deem this issue to be waived.

Appellant correctly filed a motion to modify his original sentence, as required by Pa.R.Crim.P. 1410. The principal purpose of this rule is to provide the sentencing court with the first opportunity to modify its sentence and to correct any errors that may have occurred at sentencing. Commonwealth v. Burtner, 307 Pa.Super. 230, 235, 453 A.2d 10, 12 (1982), and cases cited therein. In the absence of such a motion, a defendant may only seek appellate review of the legality of his sentence. Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982). Failure to present claims of abuse of discretion to the sentencing court constitutes waiver. Commonwealth v. Boyce, 304 Pa.Super. 27, 450 A.2d 83 (1982); Commonwealth v. Dumas, 299 Pa.Super. 335, 445 A.2d 782 (1982).

Although appellant did afford the sentencing court the opportunity to adjust its initial sentence, he failed to provide an opportunity to that court with respect to the amended sentence, which was imposed following the vacation of the initial sentence. The issue raised instantly alleges that error was committed at the second sentencing hearing. Since appellant’s initial sentence was vacated and no motion to reconsider appellant’s current sentence was filed, this issue is waived.

Judgment of sentence affirmed.

      . Appellant was convicted of simple and aggravated assault, possession of an instrument of crime, possession of a concealed weapon, recklessly endangering another person, and making terroristic threats.

      . Rule 1100 requires the Commonwealth to commence trial within 180 days from the date of a defendant’s arrest unless “trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.” Pa.R.Crim.P. 1100(c).

      . The complainant was present on October 29, 1981.

      . Since new counsel raised the ineffectiveness claim at the first stage of the proceedings in which he represented appellant, the issue is properly before the Court. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).