author: WIEAND, Judge. HESTER, Judge,

text:
    611 A.2d 206
    COMMONWEALTH of Pennsylvania v. James J. CALDERINI, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Filed June 3, 1992.
    Reargument Denied Aug. 10, 1992.

      Stephen H. Begler, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   WIEAND, Judge.

James Calderini was tried by jury and was found guilty of robbery. Following the denial of post-trial motions, he was sentenced to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years. On direct appeal from the judgment of sentence, Calderini contends that there was insufficient evidence to support his conviction and that the trial court committed reversible error during its instructions to the jury. Finding no merit in these contentions, we affirm the judgment of sentence.

In reviewing a challenge to the sufficiency of the evidence, we must determine, “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). In addition, the facts and circumstances established by the Commonwealth “need not be absolutely incompatible with defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

So viewed, the evidence at appellant's trial established that, on March 24, 1990, at or about 7:30 p.m., John Chilton entered the Springdale Pharmacy and asked an employee if the store’s owner-pharmacist was present. Chilton was told that the owner was not there, but that another pharmacist was on duty. He then asked the pharmacist on duty if she would show him literature about a certain drug. When the pharmacist retrieved the requested information, Chilton grabbed her by the wrist and pushed her to the floor. Subsequently, Chilton began kicking the cabinet in which narcotic drugs were stored, and he removed therefrom a bottle containing Tylenol with codeine pills before fleeing the store. During the robbery, Joseph Rometo was observed standing outside the pharmacy, and, after Chilton had fled the store, Rometo was seen walking away from the pharmacy in the same direction as Chilton.

Springdale Police Officer Gene Polsinelli, immediately prior to receiving a radio report of the robbery, had observed a large brown sedan pull away from the curb about one block from the pharmacy. The occupants of the vehicle appeared suspicious. Twenty minutes after the robbery, Officer Joseph Naviglia of the Tarentum Borough Police Department observed a brown Lincoln Continental being driven out of Springdale. The vehicle was driven by the appellant, James Calderini, and its passengers were Joseph Rometo and John Chilton. Prior to this observation, Naviglia had been informed of the robbery via police radio and had been told that Rometo had been seen outside the pharmacy during the robbery by Chilton. Naviglia called for backup and followed the vehicle to the home of Rometo. When the vehicle left Rometo’s home, Naviglia continued to follow it until it broke down on Route 28. Upon the arrival of other officers, Naviglia approached the vehicle and asked appellant for identification. Appellant told the officer his name was Spencer and gave the officer identification reciting that his name was Spencer. When appellant was subsequently searched, police found on his person four Tylenol with codeine pills of the same kind which had been taken by Chilton from the pharmacy.

Based upon these facts, appellant, Rometo and Chilton were charged with robbery and criminal conspiracy. Chilton entered a plea of guilty to robbery, and appellant and Rometo were subsequently tried jointly upon the theory that they had been accomplices of Chilton. Both were convicted of robbery, but acquitted on the charge of conspiracy. In this appeal, Calderini argues that the Commonwealth failed to prove that he was an accomplice because there was no evidence that he had been present at the scene of the crime or that he actively participated therein.

“A person is legally accountable for the conduct of another person when he is an accomplice of that person in the commission of [an] offense.” Commonwealth v. Orlowski, 332 Pa.Super. 600, 616, 481 A.2d 952, 960 (1984). See: 18 Pa.C.S. § 306.

An accomplice is one who “knowingly and voluntarily cooperates with or aids another in the commission of a crime.” Commonwealth v. Carey, 293 Pa.Super. 359, 373, 439 A.2d 151, 158 (1981). See: 18 Pa.C.S. § 306. See also: Commonwealth v. Jones, 213 Pa.Super. 504, 508, 247 A.2d 624, 626 (1968). To be an accomplice, “one must be an active partner in the intent to commit [the crime].” Commonwealth v. Fields, supra 460 Pa. [316] at 319-320, 333 A.2d [745] at 747 [1975]; Commonwealth v. McFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972). “An [accomplice] must have done something to participate in the venture.” Commonwealth v. Flowers, 479 Pa. 153, 156, 387 A.2d 1268, 1270 (1978).

Commonwealth v. Brady, 385 Pa.Super. 279, 284-285, 560 A.2d 802, 805 (1989). However, “[t]he least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice.” Commonwealth v. Graves, 316 Pa.Super. 484, 489-490, 463 A.2d 467, 470 (1983). See: Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981).

Although appellant is correct in his assertion that there was no direct evidence placing him at or near the pharmacy at the time of the robbery, the evidence did show that only twenty minutes later he was driving a vehicle which a jury could find, by inference, was the getaway car. At that time, moreover, appellant had in his possession four Tylenol pills of the same type which had been taken during the robbery. His possession of these pills was alone circumstantial evidence of guilt, for our Supreme Court has observed that a person’s possession of property shown to have been possessed recently by “the victim of a robbery is evidence that such person was a party to the robbery.” Commonwealth v. Wilson, 394 Pa. 588, 606, 148 A.2d 234, 244 (1959), cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959). See: Commonwealth v. Kaufman, 179 Pa.Super. 247, 251,116 A.2d 316, 319 (1955) (“possession of goods recently stolen in the perpetration of a robbery or burglary is evidence of guilt on charges of not only larceny but of both robbery and burglary as well.”); Commonwealth v. Lehman, 166 Pa.Super. 181, 185, 70 A.2d 404, 406 (1950) (same). See also: Commonwealth v. Lawson, 204 Pa.Super. 239, 242, 203 A.2d 406, 407 (1964) (defendant’s possession of recently stolen goods warranted jury in finding that he was the robber); Commonwealth v. Fusci, 153 Pa.Super. 617, 621, 35 A.2d 93, 95 (1943) (“[Possession of recently stolen property is evidence that the possessor is the thief.”). “‘However, such evidence is not conclusive and may be rebutted. It is for the trier of fact alone to say whether the guilt of the defendant is a reasonable inference, fairly deducible from his possession of recently stolen property, in light of all the circumstances, including the reasonableness of his explanation, if any, as to how he came into possession.’ ” Commonwealth v. Thomas, 305 Pa.Super. 158, 165, 451 A.2d 470, 473 (1982), quoting Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965).

When appellant’s possession of the pills is considered along with his driving of the getaway car only twenty minutes after the robbery, it seems clear that a jury could infer that appellant was a participant in the robbery as Chilton’s accomplice. See: Commonwealth v. Perry, 334 Pa.Super. 495, 503, 483 A.2d 561, 565 (1984) (defendant’s driving of getaway car minutes after her husband had robbed gas station and her possession of money taken in the robbery constituted sufficient evidence to establish her guilt as an accomplice to the robbery). Here, appellant also gave a false name and identification when stopped by the police. This was an additional circumstance tending to show consciousness of guilt. See: Commonwealth v. Boyle, 498 Pa. 486, 497, 447 A.2d 250, 255-256 (1982); Commonwealth v. Bolish, 381 Pa. 500, 524, 113 A.2d 464, 476 (1955); Commonwealth v. Meadows, 381 Pa.Super. 354, 362, 553 A.2d 1006,1010 (1989). Therefore, despite the fact that there was no direct evidence placing appellant at the scene of the robbery, we hold that the evidence that he was driving the getaway car a short time after the robbery, that he falsely identified himself to police and that he had in his possession fruits of the robbery was sufficient to establish circumstantially that appellant was an accomplice in the commission of the robbery.

Appellant also contends that the trial court committed reversible error when, in response to an inquiry from the jury, the court gave the following additional instruction:

Now, ladies and gentlemen, you also asked about an accessory after the fact, and that’s different from being an accomplice. An accessory after the fact is somebody who does something in connection with the crime that did not — that did not do anything to promote or facilitate the commission of the crime, did not solicit, command, encourage the other person who committed crime to do so or did not aid or agree to aid or attempt to aid the other person in planning it or committing it. He may have some connection with it, as one of [the] attorneys gave you an example after the crime is all over, somebody hands a person a gun or something, had nothing to do with the crime at all. He may have known it was committed, however, if he tried to help the person to do it.
In other words say if you committed a homicide, a shooting, and after the whole thing is over, you hand some guy a gun, say keep it for me, didn’t do anything about it, said sure, I will keep it for you, can be an accessory after the fact. He has the murder weapon. But if he knows a murder was committed and is hiding the weapon to help the defendant, then he is an accomplice, very fine line.
In other words, the accomplice is somebody that is helping the person do the crime or telling him to do it or encouraging him to do it. The accessory is sort of an accessory, not necessary, but he is around.

N.T. 11/5/91 at pp. 174-176. Appellant argues, specifically, that the court’s example distinguishing an accomplice from an accessory after the fact was incorrect.

“In reviewing jury instructions to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather it is the general effect of the charge that controls.” Commonwealth v. Myers, 376 Pa.Super. 41, 50, 545 A.2d 309, 314 (1988). “Even if the court erred when it instructed the jury, we will reverse only if the error prejudiced the appellant.” Commonwealth v. Klinger, 369 Pa.Super. 526, 540, 535 A.2d 1060, 1066 (1987). A jury instruction given by the trial court will be upheld so long as it “sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.” Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273, 1276 (1990).

We agree with appellant that the trial court’s example distinguishing the concepts of accomplice liability and accessory after the fact was erroneous. However, we also agree with the Commonwealth that this part of the charge was wholly superfluous and does not require the award of a new trial. In this case, appellant had not been charged as an accessory after the fact but with being an accomplice to a robbery. It was the defense that requested that the jury be charged that an accessory after the fact is not an accomplice. Although such an instruction was given by the court, it was not necessary under the facts of this case, and, indeed, probably should not have been given. What was necessary was that the jury be fully and correctly instructed upon the law pertaining to accomplice liability. Our review of the jury charge and the additional instructions given in response to the jury’s inquiry convinces us that the trial court fully and accurately instructed the jury regarding accomplice liability. Any error in the court’s discussion regarding the circumstances necessary to prove one an accessory after the fact was unnecessary to the issues before the jury. As such, the trial court’s erroneous instruction was harmless. We hold, therefore, that appellant is not entitled to a new trial because of the trial court’s unnecessary attempt to define the crime of accessory.

Having found sufficient evidence to sustain appellant’s conviction for robbery, and finding no other error which would entitle appellant to a new trial, the judgment of sentence will be affirmed.

Affirmed.

HESTER, J., files a Dissenting Opinion.

HESTER, Judge,

dissenting:

I respectfully dissent from the majority’s conclusion that the evidence was sufficient to support appellant’s conviction of robbery. I believe that the evidence does not establish that appellant knew either before or after the fact that the pharmacy had been robbed. I would reverse the judgment of sentence.

Appellant, John Chilton, and Joseph Rometo were charged with robbery and conspiracy. Chilton subsequently pled guilty to robbery; Rometo was appellant’s co-defendant at trial. The trial evidence established the following. Sue Molnar was the Commonwealth’s first witness. She was working at Springdale Pharmacy in Springdale on March 24, 1990, when John Chilton entered the store at approximately 7:30 p.m. Chilton asked for the store’s owner-pharmacist, Sam Tallarico, by first name. Ms. Molnar advised him that another pharmacist was on duty. Chilton asked the pharmacist, Terry Kirin, about literature regarding the side effects of a drug that he said that he was taking. Ms. Kirin retrieved the requested material and brought it to Chilton when he suddenly grabbed her wrist and pushed her to the floor. Chilton then started to kick the cabinet where narcotic drugs were kept. Ms. Molnar screamed for Brenda Rudolph, who was at the cash register, to telephone police. Chilton grabbed a plastic bottle containing the prescription medicine Tylenol with codeine and ran. At trial, Ms. Molnar identified Chilton and said that she personally knew Rometo. She could not identify appellant, and she testified that she did not see either appellant or Rometo on the day of the robbery.

Terry Kirin, the pharmacist, testified as follows. She observed Rometo in the pharmacy on the morning of the robbery at approximately 9:30 a.m. She recognized Rometo because he tripped over a card rack, paced, and “really made notice of himself.” Notes of Testimony (“N.T.”), 11/2-5/90, at 25. At approximately 6:30 p.m. that day, Ms. Kirin received a telephone call for a prescription for a controlled substance used to induce sleep. The patient name given was “Linda Rometo,” and the prescribing doctor was “Dr. Miller.” Id. at 26. Since Ms. Kirin could not verify the prescription due to the hour, she refused to fill it.

Ms. Kirin also confirmed Ms. Molnar’s version of the robbery. Chilton entered, asked for Sam and materials about a drug, pushed Ms. Kirin to the floor, threatened to kill her, and took Tylenol with codeine from the narcotic drug cabinet. After Chilton started to kick the cabinet, Ms. Kirin stood up, telephoned the police, and went to the front of the store to watch where Chilton fled. At that time, she also saw Rometo walking away from the pharmacy and heading in the same direction as Chilton. They both went toward the parking lot used by pharmacy customers. Ms. Kirin testified that she never saw appellant at any time. She only identified Rometo at trial.

Brenda Rudolph was at the cash register in the front of the store when Ms. Molnar told her to call the police and to watch where Chilton went. Ms. Rudolph panicked and ran outside the store, where she saw Rometo standing beside the door. She began running and then decided to return to the pharmacy to see if anyone was injured. She saw Chilton exit the pharmacy just as she was entering it. Ms. Rudolph testified that she never saw appellant.

Springdale Police Officer Gene Polsinelli testified that he heard the radio call for the robbery. Prior to the call, he had passed the pharmacy in his police cruiser and noticed a large brown sedan in the area. The car was parked about a block from the pharmacy. The officer’s suspicions were aroused since Springdale is a small town and since the men in the car, which was a luxury sedan, looked “the criminal type” to the officer. Id. at 44. The officer did not state the precise number of people viewed in the car; he said only that there were “several guys.” Id. Officer Polsinelli could not identify any of the occupants of the vehicle.

At the time, Officer Polsinelli thought that the state store may be a robbery target since the car was parked closer to it than the pharmacy. He turned his cruiser around and looked into the state store. When everything appeared normal, he left. As he was headed away from the state store, the police broadcast concerning the robbery was transmitted.

Chilton, Rometo, and appellant were apprehended by Tarentum police twenty to twenty-five minutes following the robbery in a white and brown Lincoln Continental. Appellant was driving. Tarentum Borough Police Officer Joseph T. Naviglia searched appellant and found four Tylenol with codeine pills in his pocket.

Following the close of the Commonwealth’s case, appellant demurred to the evidence. He did not present a defense, but Chilton and Rometo both testified in Rometo’s defense. Chilton said that he was a drug addict at the time of the robbery and that Tallarico often sold him narcotic drugs at a significant profit without a prescription. Chilton went to the pharmacy on March 26th hoping to find Tallarico. When he was not there, Chilton, on his own, decided to rob the store of drugs. He stated specifically that he had not discussed taking the drugs by force with Rometo prior to entering the store but that they planned on buying drugs from Tallarico. Chilton also testified that he did not know appellant prior to the day of the robbery and that appellant was picked up hitchhiking just after the robbery. Chilton also testified that he allowed appellant to drive the car because Chilton was intoxicated and appellant was not. Rometo’s testimony was consistent.

The test applied in reviewing whether a demurrer should have been granted is to accept the Commonwealth’s evidence, together with all reasonable inferences from that evidence, and to determine whether it is sufficient to support a finding of guilt beyond a reasonable doubt by the factfinder. Commonwealth v. Turner, 491 Pa. 620, 421 A.2d 1057 (1980). The evidence establishes that Chilton, not appellant, committed the robbery. In order to establish appellant’s guilt, the Commonwealth was required to prove that appellant was either an accomplice or co-conspirator of Chilton in the commission of the robbery. Commonwealth v. Brady, 385 Pa.Super. 279, 560 A.2d 802 (1989).

An accomplice is one who knowingly and voluntarily promotes or facilitates the commission of an offense and agrees or aids or attempts to aid such other person in planning or committing the offense. Commonwealth v. Potts, 388 Pa.Super. 593, 566 A.2d 287 (1989), petition for allowance of appeal granted, 525 Pa. 656, 582 A.2d 322 (1990). A conspiracy requires an agreement to engage in a criminal act. Commonwealth v. Brady, supra. Accepting the Commonwealth evidence as true and all reasonable inferences therefrom, I believe that the evidence was not sufficient to overcome appellant’s demurrer on the robbery charge. Even rejecting the testimony of Chilton and Rome-to that appellant was picked up hitchhiking following the robbery, there was nothing in the record to establish appellant’s knowledge that a robbery occurred. Furthermore, disbelief of contrary evidence cannot substitute for proof, Commonwealth v. Scott, 409 Pa.Super. 313, 320, 597 A.2d 1220 (1991), and I believe that the Commonwealth’s evidence was insufficient to establish that appellant knew about Chilton’s robbery of the store — either before or after it occurred.

First, the Commonwealth evidence establishes conclusively that appellant was never near the pharmacy and never viewed Chilton’s actions. Ms. Molnar, Ms. Kirin, and Ms. Rudolph all testified that they did not see appellant at or around the crime scene. Furthermore, these three witnesses, at various times, viewed the entire vicinity of the pharmacy during and immediately after the robbery. They all stated positively that they did not see appellant.

Although the Commonwealth suggests Officer Polsinelli’s testimony established appellant’s presence at the scene, I strongly disagree. Officer Polsinelli never identified appellant as one of the car occupants, and he never stated how many men he saw. Furthermore, given where the car was located, even if appellant was in the car during the robbery, he could not have viewed the inside of the pharmacy, where the robbery occurred.

Equally significant is the fact that this robbery did not involve a weapon of any sort. Neither Chilton nor Rometo nor appellant possessed a weapon when arrested, and Chilton never displayed a weapon during the robbery.

These two facts, viz, that appellant did not see Chilton rob the pharmacy and that the robbery was not committed with a weapon, are the keys that distinguish this case from the cases relied upon by the Commonwealth. In Commonwealth v. Perry, 334 Pa.Super. 495, 483 A.2d 561 (1984), and Commonwealth v. Esposito, 236 Pa.Super. 127, 344 A.2d 655 (1975), the actor committed the robberies with a visible firearm. Thus, conspiracy or accomplice liability could be inferred from the fact that the non-actor must have known that the actor was going to rob the particular establishment due to the actor’s possession of a visible weapon. Similarly, in Commonwealth v. Ross, 248 Pa.Super. 312, 375 A.2d 113 (1977), the accomplice actively participated in the robbery with the actor by entering the establishment with that person and distracting the victim’s attention while the actor stole the money.

In this case, appellant’s conviction rests solely on the following pieces of evidence: he was driving the car twenty to twenty-five minutes after the incident, he had four Tylenol with codeine tablets in his pocket for which he had no prescription, and he gave false identification. This evidence, however, must be viewed in light of the fact that the Commonwealth evidence establishes that the robbery was committed by Chilton’s “pushing” the employee to the ground. There was no evidence that possibly could establish that appellant knew that Chilton had robbed the store.

Furthermore, Rometo’s evidence supports the conclusion that appellant did not know that the store was robbed. Both Chilton and Rometo stated that they regularly purchased controlled substances from the owner of the pharmacy and went into the pharmacy on that day planning to purchase drugs illegally. Not only did the Commonwealth fail to rebut this evidence, the testimony of two of its witnesses, Ms. Kirin and Ms. Molnar, supports it. Both Ms. Kirin and Ms. Molnar testified that Chilton requested the owner by name prior to engaging in his bizarre conduct.

While reasonable inferences must be drawn in the Commonwealth’s favor, the inferences must flow from facts and circumstances proven in the record, and must be of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused’s guilt beyond a reasonable doubt. Commonwealth v. Clinton, 391 Pa.212, 219, 137 A.2d 463, 466 (1958). The trier of fact cannot base a conviction on conjecture and speculation and a verdict which is premised on suspicion will fall even under the limited scrutiny of appellate review. Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966).

Commonwealth v. Scott, supra, 409 Pa.Super. at 315, 597 A.2d at 1221.

I believe that given the manner in which the store was robbed and given the fact that the evidence establishes conclusively that appellant did not view the robbery, appellant’s mere presence in the car after this incident, even with the pills in his pocket, was not sufficient to establish that he either conspired or agreed to aid Chilton in robbing the store, before or after the fact. The evidence establishes only his guilt in possessing an illegal substance — which explains why he gave police false identification. The inferences from this evidence do not establish appellant’s guilt beyond a reasonable doubt, and I believe the disposition of this case is controlled by Commonwealth v. Brady, supra, where we held that a defendant’s mere presence at the scene of a burglary and apprehension in the car where the burglary proceeds were located were not sufficient to sustain a conviction for burglary, even though the defendant had viewed the burglary. Accordingly, I respectfully dissent

      . Calderini was found not guilty of criminal conspiracy.

      . Our holding is unaffected by the testimony of Rometo and Chilton that appellant was not involved in the robbery, for the credibility of such testimony was for the jury to evaluate. " ‘[Ijt is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.’” Commonwealth v.

        Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). Therefore, the jury was free to reject the exculpatory testimony given by Chilton and Rometo.

      . Criminal liability for being an accessory after the fact is imposed by 18 Pa.C.S. § 5105, which provides as follows:
      § 5105. Hindering apprehension or prosecution
      (a) Offense defined. — A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
      (1) harbors or conceals the other;
      (2) provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;
      (3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;
      (4) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or
      (5) volunteers false information to a law enforcement officer.
      (b) Grading. — The offense is a felony of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a felony of the first or second degree. Otherwise it is a misdemeanor of the second degree.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    611 A.2d 213
    COMMONWEALTH of Pennsylvania v. Elaine C. MEDER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1992.
    Filed June 3, 1992.

      Deborah T. Lux, Asst. Public Defender, Bellefonte, for appellant.
    Ray G. Gricar, Dist. Atty., Bellefonte, for Com., appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order of the Court of Common Pleas of Centre County dated July 23, 1991, which denied appellant’s petition for a writ of habeas corpus. Appellant filed her petition from the decision of the district justice which held her for trial. We affirm.

The charges filed against appellant are for first- and third-degree murder. The Commonwealth has alleged that appellant strangled her newborn child in October 1985. At the preliminary hearing two witnesses testified. The first witness was appellant’s mother, Gloria Meder. Gloria Med-er testified that in the Fall of 1985 she resided with her daughter, who was at that time nineteen years old. Gloria Meder testified that she was not aware that appellant was pregnant until after finding the cold, white, apparently dead child in a basin on the floor beside appellant’s bed. Gloria Meder testified that on the day in question, appellant had stayed home sick from work and went to bed around 11 p.m. A noise from appellant’s room awakened Gloria Med-er, who proceeded to appellant’s room. Gloria Meder testified that she thought appellant had fallen. Appellant was assisted to the bathroom by her mother, and upon returning to the room Gloria Meder saw the baby in the basin on the floor. Gloria Meder testified that the umbilical cord was wrapped tightly around the baby’s neck once and wrapped around a second time more loosely.

Gloria Meder then testified that she did not call for medical assistance, but put appellant to sleep. Then, in a bizarre set of actions, Gloria Meder took the baby and placed it in a box and placed the box in the freezer. At some point in time after this, Gloria Meder placed the baby into a wood-burning stove and burned the baby’s body. The body was totally consumed by the fire.

The second witness was Investigator Michael Kenny, of the Ferguson Township Police Department. Investigator Kenny testified to incriminating statements appellant made to him in an interview. Investigator Kenny testified that he advised appellant of her Miranda rights and that she agreed to waive those rights. Investigator Kenny then testified that appellant told him that she had a baby, that it was born alive, and that it cried. Appellant then admitted that she strangled the baby with the umbilical cord. Appellant stated that after she strangled the baby, she placed it in a pan and passed out. When she awoke, the baby was there and she attempted to get up, but fell against the wall.

On February 28, 1991, appellant was arrested and charged with first- and third-degree murder. A preliminary hearing was held on March 6, 1991, at which time District Justice Robert Schoff dismissed both charges against appellant. On March 7, 1991, the Commonwealth filed the charges for a second time. On March 20, 1991, a second preliminary hearing was held, at which time District Justice Clifford H. Yorks ordered appellant held for court on both counts. Appellant then filed a writ of habeas corpus to the Court of Common Pleas of Centre County challenging the ruling ordering appellant held for court. The writ was denied by the court of common pleas, and this timely appeal followed.

Appellant raises two issues for our consideration. First, appellant argues that the Commonwealth was required to prove corpus delicti before it could use appellant’s confession at the preliminary hearing. In regard to this issue, appellant asks this Court to determine whether as a matter of law the Commonwealth is required to prove the corpus delicti at a preliminary hearing before it can use a defendant’s confession. Second, appellant argues that in this case the evidence of corpus delicti produced by the Commonwealth is just as consistent with stillbirth, accident and/or natural causes as with criminality, and, therefore, is insufficient to prove the corpus delicti. We take up each of appellant’s arguments below.

We agree with appellant’s first argument that the Commonwealth was required to prove the corpus delicti at the preliminary hearing in order to use appellant’s confession. The rule of law relied upon by appellant is that:

... “an extra-judicial admission or confession of one accused of crime cannot be received in evidence unless and until the corpus delicti of the crime has first been established by independent proof.” Commonwealth v. Turza, 340 Pa. 128, 133, 16 A.2d 401, 404 (1940).

Commonwealth v. Davis, 308 Pa.Super. 204, 213, 454 A.2d 92, 96-97 (1982). “Corpus delicti means the body of the crime or the fact that a crime has been committed.” Commonwealth v. Brushy, 219 Pa.Super. 54, 56, 280 A.2d 826, 827 (1971). In a homicide case, the corpus delicti consists of proof “that the person for whose death the prosecution was instituted is in fact dead and that the death occurred under circumstances indicating that it was criminally caused by someone.” Commonwealth v. Davis, 308 Pa.Super. at 213, 454 A.2d at 97 (quoting Commonwealth v. Turza, 340 Pa. at 134, 16 A.2d at 404).

The initial question which arises in this case is whether the rule cited above should apply to a preliminary hearing. For the reasons which follow, we believe the rule does apply.

The distinction between a preliminary hearing and the trial itsélf is well settled. While a trial determines guilt or innocence, the “preliminary hearing is held primarily to prevent the detention of a person for a crime which was never committed or of a crime with which there is no evidence of his connection.”
******
The question at a preliminary hearing is not whether there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt; rather, the question is whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected with a crime.

Commonwealth v. Rick, 244 Pa.Super. 33, 36, 366 A.2d 302, 303-304 (1976). The corpus delicti rule is a rule of evidence. Commonwealth v. May, 451 Pa. 31, 301 A.2d 368 (1973). It has been held that the law of evidence is often relaxed at a preliminary hearing. Commonwealth v. Davis, 308 Pa.Super. at 213, 454 A.2d at 97. The question here is whether the law of evidence is so relaxed at a preliminary hearing so as to allow the use of a confession without proof of the corpus delicti of the crime charged.

We have found no caselaw that specifically states whether or not the corpus delicti must be shown at a preliminary hearing before a confession may be used. Two decisions of this Court have dealt with proof of corpus delicti at a preliminary hearing. Commonwealth v. Davis; Commonwealth v. Taylor, 219 Pa.Super. 334, 280 A.2d 405 (1971). In Davis, appellant argued that the district justice erred by allowing incriminating statements prior to proof of corpus delicti. The Court in Davis responded that there is no strict order of proof, rather the order of proof is within the discretion of the judge or, in that case, the district justice. Further, in Davis appellant argued that the district justice erred in allowing proof of the death of the victim by the use of a hearsay autopsy report. The court found no difficulty with proving the corpus delicti at the preliminary hearing through the use of hearsay.

In Taylor, the Court held that where a defendant was not represented by counsel at a preliminary hearing and the prosecution failed to prove the corpus delicti at the preliminary hearing, the defendant was entitled to a new trial. Taylor involved a charge of rape, and from the testimony reproduced in the opinion it can be seen that there was no proof of penetration at the preliminary hearing. The Court in Taylor found that, in light of the lack of evidence of corpus delicti, counsel at the preliminary hearing would have likely resulted in a dismissal of the charge of rape.

While neither Davis nor Taylor specifically sets forth black letter law stating that the corpus delicti must be proven at the preliminary hearing, we find that such a rule is implicit in these cases. We find that proof of the corpus delicti of the crime must be proven at a preliminary hearing in order to allow the use of confessions or incriminating statements. We find further support for our holding in that the purpose of a preliminary hearing is, in part, to assure that a person is not detained for a crime that was never committed. Commonwealth v. Rick. Requiring the Commonwealth to establish the corpus delicti assures that there is some evidence that a crime was committed.

Appellant’s second argument is that the evidence the Commonwealth produced at the preliminary hearing was just as consistent with stillbirth, accident and/or natural causes as with criminality, and, therefore, is insufficient to establish the corpus delicti for murder. Examining the evidence presented the question becomes whether the testimony of appellant’s mother, Gloria Meder, is sufficient to establish the corpus delicti. We agree with the court of common pleas that the testimony of appellant’s mother is sufficient to establish the corpus delicti.

As was stated above, the corpus delicti in a homicide case consists of proof “that the person for whose death the prosecution was instituted is in fact dead and that the death occurred under circumstances indicating that it was criminally caused by someone.” Commonwealth v. Davis, 308 Pa.Super. at 213, 454 A.2d at 97 (quoting Commonwealth v. Turza, 340 Pa. at 134, 16 A.2d at 404). We believe that some analysis of the Commonwealth’s burden of proof is required.

Thus, the rule requires the Commonwealth must sustain an initial burden of proof by preliminarily establishing to the satisfaction of the trial judge that the death occurred under circumstances which were more consistent with criminality than with natural causes or accident. Once the Commonwealth has sustained this initial and preliminary burden of proof, which is admittedly slight, the admissions of the accused become admissible. It is for the trial judge to decide whether the Commonwealth has sustained the burden of preliminarily establishing the corpus delicti. This preliminary burden of proof must be distinguished from the Commonwealth’s ultimate burden of proof, namely, the requirement that it establish beyond a reasonable doubt each and every element of the crime to the satisfaction of the fact-finder.

Commonwealth v. Fried, 327 Pa.Super. 234, 239-40, 475 A.2d 773, 775 (1984). To prove corpus delicti, the Commonwealth need not prove each element of the crime charged beyond a reasonable doubt. Rather, the Commonwealth merely must establish that a crime was committed. In Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974), the Pennsylvania Supreme Court explained what is required to establish corpus delicti in a homicide case.

The first element that a human being is in fact dead, rarely presents difficulty. But proof of the second element — that death “occurred through a criminal agency,” — frequently is disputed. Often the circumstances of death are such that homicide cannot be established absent the statements of the accused as the cause of death to the exclusion of the accident or suicide. Accordingly, we have held that the corroboration policy is satisfied if the independent evidence “points to an unlawful killing, although it may indicate as well accident or suicide,” or “ ‘where the circumstances attending the death are consistent with crime, though they may also be consistent with accident ... or suicide.’ ” Although corroboration is insufficient if the independent evidence is equally consistent with accident or criminality, “the prosecution has no duty to affirmatively exclude the possibility of accident or suicide in order to establish the corpus delicti.”

Commonwealth v. Ware, 459 Pa. at 366-67, 329 A.2d at 274-275 (citations omitted, footnote omitted). Applying the above factors to this case, we find the Commonwealth established the corpus delicti for murder at the preliminary hearing.

The first element which must be satisfied is that the person upon whose death the prosecution is based, is in fact dead. The reason for the death is the second element. In this case, the testimony of Gloria Meder established at a minimum that she found a cold, white body of a baby in a pan at the side of appellant’s bed. Certainly this establishes that the person upon whose death the prosecution was commenced is dead.

Appellant has put forth a strained argument that there was no proof presented that the child was born alive, independent of her confession, and, therefore, the first element that a person is dead was not established. We believe appellant’s argument confuses the elements of corpus delicti for a homicide prosecution. The first element is that the person is actually dead. Whether this child died as a result of accident or wrong doing is not a part of the first element. Further, we see an opportunity to be led by appellant into an argument that this child was not bom alive, and, therefore, was not a person who could die. This we refuse to do. The reason for the death and the circumstances surrounding the death may vindicate or condemn appellant, but we will not accept an argument that this full-term infant was not a person. The Commonwealth established that the person upon whose death the prosecution was based is actually dead for purposes of the corpus delicti rule.

The second element the Commonwealth is required to establish is that the death occurred under circumstances that indicate that it was criminally caused by someone. The Commonwealth need not establish a connection to appellant in order to establish corpus delicti, although to establish a prima facie case the Commonwealth is required to show a connection between appellant and the crime. Appellant has argued here that the evidence presented at the preliminary hearing, independent of her confession, is equally consistent with stillbirth, accident and/or natural causes as with criminal activity. Appellant argues that because the testimony is equally as consistent with non-criminal activity as with criminal activity, the evidence is insufficient to establish the corpus delicti. We do not agree.

It has been said that the independent evidence of corpus delicti is insufficient if it is merely as consistent with criminal activity as with non-criminal activity. Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967). It is clear, however, that the Commonwealth has no affirmative duty to disprove the possibility that the death was not the result of criminal activity. Commonwealth v. May. The Commonwealth need not establish that the death was not the result of accident prior, during, or after birth. All the Commonwealth need demonstrate, independently of the confession or incriminating statements, is that the death occurred under circumstances that indicate criminal activity. Once this is shown, the confession or incriminating statements are admissible.

In this case we do not find that the circumstances, as shown by the evidence, were equally consistent with accident as with criminal activity. The evidence independent of the confession is limited to the testimony of appellant’s mother, Gloria Meder. Although the evidence is only the testimony of a single witness, it is very revealing and extremely indicative of criminal activity. First, Gloria Med-er testified she found a cold, white, apparently dead baby in a pan at the side of her daughter’s bed. Gloria Meder’s testimony reveals that the baby had the umbilical cord wrapped once tightly around its neck and a second time more loosely. The umbilical cord being wrapped around a dead child’s neck indicates two possibilities: either it was caught there accidently, or it was purposely wrapped around the neck. This alone might lead to a conclusion that the circumstances are just as consistent with crime as with accident. The testimony of Gloria Meder reveals much more than that the baby’s body had the cord wrapped around its neck. Gloria Meder testified that although she lived with her daughter during this time, she never knew her daughter was pregnant. It is difficult to understand how this is possible. Gloria Meder testified that the child weighed six to seven pounds. It is hard to envision concealing a pregnancy from the people one resides with until the child has reached a weight of six pounds. Further, the actions of Gloria Meder are certainly consistent with concealment of criminal activity. It requires a considerable motive for a person to freeze and burn a body, even the small body of an infant. Also, Gloria Meder’s daughter had apparently just delivered a child and was ill, but Gloria Meder never called for medical or other assistance. These circumstances indicate criminal activity more than an accident or natural causes. To the extent that these circumstances are consistent with an accident, the Commonwealth has no duty to disprove that possibility.

For the foregoing reasons, the order of the court of common pleas is affirmed.

Order affirmed.

      . We note here that this appeal was taken pursuant to a grant of permission to file an interlocutory appeal dated October 21, 1991.

      . It is the modern view that the order of proof of corpus delicti is within the discretion of the judge. Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982).

      . We note here that our decision in this case in no way impacts on the means by which the Commonwealth may establish the corpus delicti. The decision here merely states that proof of the corpus delicti must be produced at the preliminary hearing in order to allow the use of incriminating statements or a confession.


author: HUDOCK, Judge. POPOVICH, Judge,

text:
    611 A.2d 219
    Christopher M. NOLL, Timothy L. Noll and Darlene M. Noll, His Wife, Appellees, v. PADDOCK POOL BUILDERS, INC.; Paddock Pool Equipment Co., Inc.; Paddock Aquatic Facilities; Frost Company; Sta-Rite Industries, Inc.; and YMCA of the USA. Appeal of STA-RITE INDUSTRIES, INC.
    Superior Court of Pennsylvania.
    Argued March 11, 1992.
    Filed June 3, 1992.
    Reargument Denied Aug. 14, 1992.

      James B. Young, Harrisburg, for appellant.
    Anthony Stefanon, Harrisburg, for appellee Noll.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   HUDOCK, Judge.

This appeal follows the grant of Plaintiffs’/Appellees’ (the Nolls’) motion to amend their complaint and the denial of Defendant’s/Appellant’s (Sta-Rite’s) motion to amend its answer and new matter. We quash in part and remand in part.

This action arose out of an accident in which the plaintiff/appellee, Christopher Noll, was rendered a quadraplegic as a result of diving into a swimming pool from starting blocks anchored to the pool by bolts. The pool was located at the Westshore branch of the YMCA. The accident took place on May 17, 1987, and the complaint in this action was filed on September 8, 1988. Sta-Rite filed an answer and new matter. The Nolls’ filed a motion to amend their complaint and Sta-Rite filed a motion to amend their answer and new matter to allege the statute of repose as a defense, claiming that the starting blocks were improvements to real property. The trial court, on June 5, 1991, granted the Nolls’ motion to amend their complaint but denied Sta-Rite’s motion to amend their answer stating that the starting blocks were not improvements but rather personal property, finding, therefore, that the statute of repose defense was not available to Sta-Rite. Sta-Rite has appealed this order.

Sta-Rite raises the following issues in their appeal:
1. Did not the trial court err by granting plaintiffs’ Motion for Leave To Amend The Complaint to assert a theory of defective design after the expiration of the Statute of Limitations?
2. Did not the trial court err in denying Sta-Rite Industries, Inc.’s Motion for Leave To Amend New Matter to plead the Statute of Repose?

Appellant’s Brief at 4.

Initially, we raise the issue of the appealability of the trial court’s order. The Nolls’ complaint was not dismissed, rather the court permitted it to be amended. Generally, an order granting leave to amend pleadings is interlocutory and, therefore, not immediately appealable. Tate v. MacFarland, 303 Pa.Super. 182, 449 A.2d 639 (1982). Unless a right to appeal is expressly granted by statute or rule of court, an appeal to this Court must be quashed if it is from an interlocutory order. See Pa.R.A.P. 311, 1311, 42 Pa.C.S.A. No one has been put out of court as the result of the order granting leave to amend the complaint and we, therefore, find that the part of the order allowing amendment of the complaint is interlocutory and quash that part of the appeal.

The second part of the order, denying Sta-Rite’s motion to amend their answer and new matter, would appear to be interlocutory since Sta-Rite still has other valid defenses. Our decision in Schaffer v. Litton Systems, Inc., 372 Pa.Super. 123, 539 A.2d 360 (1988), alloc. den., 520 Pa. 583, 549 A.2d 916, however, holds that an order denying amendment to plead the statute of repose defense is a final appealable order. We will, therefore, address Sta-Rite’s claim as to this issue.

Pa.R.C.P. 1033, 42 Pa.C.S.A., states:
A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Although liberal amendment of pleadings is permitted in Pennsylvania, it will not be permitted where it is against a positive rule of law. General Machine Corp. v. Feldman, 352 Pa.Super. 180, 507 A.2d 831 (1986). The decision to permit amendment of pleadings rests in the sound discretion of the trial court. Id.

Sta-Rite argues that they should be permitted to amend their answer and new matter to plead the statute of repose, because the statute of repose is a non-waivable defense. Sta-Rite’s Brief at 10. The Nolls’, on the other hand, argue that the statute of repose is not available to Sta-Rite and, therefore, to permit them to amend their answer and new matter would be against a positive rule of law. The Nolls’ Brief at 11. We must, therefore, examine whether the statute of repose is available to Sta-Rite before we can determine whether the trial court abused its discretion in denying Sta-Rite’s motion to amend their answer and new matter.

42 Pa.C.S.A. § 5536 (the statute of repose) reads in part:

(a) General rule. — Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.
(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).

We have long held that the statute of repose does more than merely limit the remedy of a party against another, as does a statute of limitations. Schaffer v. Litton Systems, supra. Rather, the statute of repose “eliminates all causes of action arising out of the negligence in construction or design of an improvement to real property which occurred more than twelve (12) years before the accident.” Id., 372 Pa.Super. at 125, 539 A.2d at 361. This defense is properly raised at any time and is, therefore, non-waivable. Id. Consequently, Sta-Rite is permitted to raise the statute of repose as a defense in their new matter. This, however, does not end our inquiry. Although it is a non-waivable defense, if the defendant is not entitled to protection under the statute, then the trial court may refuse to permit amendment because it would be against a positive rule of law.

The trial court stated in its opinion: “Sta-Rite argues its starting blocks were an ‘improvement to real property’, but it is clear they were not. The blocks were removable and attached to the pool by bolts. Sta-Rite cannot successfully assert an affirmative defense under the Statute of Repose. Therefore, the Court denied the amendment.” Trial Court Opinion at 4. The issue before us then is whether or not the starting blocks in question are an “improvement to real property” under the statute of repose. The Nolls’ argue that the trial court

relied upon facts of record developed over the course of more than three (3) years of litigation. The factual basis for this decision was summarized in [the Nolls’] Memorandum of Law in Opposition to Motion of [Sta-Rite] For Leave to Amend New Matter and the exhibits thereto.

The Nolls’ Brief at 5.

The Memorandum of Law to which the Nolls’ refer lists (1) an answer of Sta-Rite to the Nolls’ Interrogatories First Set # 14, (2) the original invoice from Sta-Rite to Paddock Pool Equipment Co., Inc. listing the starting platforms, and (3) promotional literature and installation instructions, which were attached as exhibits. These are the items which we find the trial court could reasonably have relied upon in making its determination that the starting blocks were not improvements to real property.

The parties turn next to their examination of the cases in Pennsylvania which have construed the statute of repose. Although there are cases which determine items as either improvements to real property or as personal property, our courts have not defined the term improvement to real property, and the statute does not provide a definition. Therefore, the determination of what constitutes an improvement to real property is made on a case-by-case basis. The parties cite the following cases in support of their positions which we find to be inapplicable because the issue of the definition of an improvement to real property was not in issue: Misitis v. Steel City Piping Company, 441 Pa. 339, 272 A.2d 883 (1971); Leach v. Philadelphia Savings Fund Society, 234 Pa.Super. 486, 340 A.2d 491 (1975); Freezer Storage, Inc. v. Armstrong Cork Company, 476 Pa. 270, 382 A.2d 715 (1978); Fetterhoff v. Fetterhoff, 354 Pa.Super. 438, 512 A.2d 30 (1986), alloc. den., 514 Pa. 624, 522 A.2d 50 (1987); McCormick v. Columbus Conveyor Company, 522 Pa. 520, 564 A.2d 907 (1989); McConnaughey v. Building Components, 401 Pa.Super. 329, 585 A.2d 485 (1990), alloc. granted, 527 Pa. 667, 593 A.2d 842 (1991).

The following four cases which the parties cite have dealt with interpreting the term “improvement to real property”. First, we examine Mitchell v. United Elevator Company, Inc., 290 Pa.Super. 476, 434 A.2d 1243 (1981). In Mitchell, we held that an elevator system in an apartment building was an improvement to real property. The trial court erroneously focused on the uniformity of elevators from building to building in finding that it was not an improvement to real property. We reversed the trial court there saying that the trial court likened the installation of an elevator system, with its myriad components, motors, cables, wiring and machinery, to uncrating a television set and plugging it in. We were guided by Black’s Law Dictionary’s definition of the general term improvement:

A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intending to enhance its value, beauty or utility or to adapt it for new or further purposes. Generally, buildings, but may also include any permanent structure____

Mitchell, supra, 290 Pa.Superior Ct. at 488, 434 A.2d at 1249 (citing Black’s Law Dictionary 682 (5th ed. 1979)). Our decision, however, does not explain how the Black’s Law Dictionary definition of “improvement" relates to the finding that the elevator is an improvement. We referred, instead, to Freezer Storage Inc. v. Armstrong Cork, supra, holding that the elevator is at least as much an improvement to real property as the insulation material in the ceiling of a warehouse. As we said earlier, however, Freezer Storage did not address the definition of an improvement to real property. We do not find Mitchell is much guidance to us in our present case.

Next, the parties cite Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985). There we determined that a skylight/skydome in the ceiling of a high school was an improvement to real property. In Catanza ro, we found that the skylight/skydome was like a window, and windows have been held to be fixtures. Keeler v. Commonwealth, Department of Transportation, 56 Pa. Cmwlth. 236, 424 A.2d 614 (1981). We agreed with the Commonwealth Court that a fixture is, by definition, an improvement to real property. Id. We held:

No Pennsylvania decision directly addresses the issue of whether a skydome/skylight is a fixture. However, analogous authority strongly suggests that a skydome should be considered a fixture____ In function and appearance, a skydome or skylight is virtually identical to a window. Moreover, a skydome, like a window, is physically annexed to a building and made a part thereof. Therefore, we do not hesitate in holding that a skydome is a fixture and as such, is an “improvement to real property” within the meaning of 42 Pa.C.S. Sec. 5536.

Catanzaro, 339 Pa.Superior Ct. at 485, 489 A.2d at 265 (footnote omitted). Although the definition of a fixture refers to the annexation of an item of personal property to real estate, we find that this definition is too general to be dispositive in our present case. Likening a skylight/sky-dome to a window is a much more direct analogy than likening a skylight/skydome to starting blocks in a pool.

The problem with using an analogy to our previous decisions is more acute in Ferricks v. Ryan Homes, Inc., 396 Pa.Super. 132, 578 A.2d 441 (1990), alloc. den. 527 Pa. 617, 590 A.2d 757 (1991), 527 Pa. 618, 590 A.2d 758 (1991). We held in Ferricks that plywood used to construct a home was not an improvement to real property. The appellees in Ferricks argued that the plywood boards were an improvement to real property because they became “so affixed to the property that they cannot be removed without material injury to the real estate or to themselves.” Ferricks, 396 Pa.Superior Ct. at 135, 578 A.2d at 443. We held:

Although we cannot disagree that the plywood did become an integral part of the structure build by Ryan Homes, we do not find this factor determinative of the question of whether the plywood was itself the improvement.

Id. (Emphasis in original). We found that the prior cases (Mitchell, Fetterhoff Catanzaro, Freezer Storage and McCormick) did not address the same situation. We held:

The plywood manufacturers were merely furnishing a material to be used in the construction of the actual improvement. The plywood was simply a component part of a wall or floor which eventually made up the improvement on the real estate.
******
A multipurpose building material such as plywood, which is merely used as a component in the creation of a finished product, does not come within the definition of the term “improvement”.

Ferricks at 136, 578 A.2d at 443, 444. We continued, citing Judge Livingstone M. Johnson’s trial court opinion:

The definition of the term improvement also caused Judge Johnson to observe that a building material such as plywood which is a single component of a greater whole is recognizable as some form of “improvement” only upon the application of “labor and capital” to create the construction of a structure or fixture. He accurately observed:
Any contrary finding would serve to advance the absurd result that building materials such as plywood, plate glass, aluminum sheeting or steel supports might be merely stock piled on a given piece of real estate and be thereby subject to inclusion under the Statute of Repose, as “improvement's] to real property”.

Id. at 137, 578 A.2d at 444. What distinguishes Ferricks from the present case is that we are not dealing with raw materials which make up an improvement. We therefore find that Ferricks is too dissimilar to aid us in the present case.

Finally, in Radvan v. General Electric Company, 394 Pa.Super. 501, 576 A.2d 396 (1990), we found that a weld and side trim machine was an improvement to real property. We relied on the trial court’s finding that it was an improvement because:

it had been in place for more than thirty years; it had never been moved since its installation; it was bolted to the floor and was connected to conduit piping for power; and because its “weight was in dozens of tons and it would have been very difficult to dismantle.”

Id., 394 Pa.Superior Ct. at 504, 576 A.2d at 397. Although Radvan arguably addressed some of the same features of the starting blocks, i.e., in place for length of time, bolted to the floor, we also find this case distinguishable because of the presence of facts which imply the intent of the parties to annex this machine to the real estate.

In each of the cases we have discussed, the problems faced by our Court have differed remarkably from the facts of our present case. So much so, that we find there is a need for clarification of the analysis process which should be used in cases like ours that require a determination of what constitutes an improvement to real property. We find that the Commonwealth Court has been faced with a similar problem in a slightly different context.

The Commonwealth Court has been called upon to define the term “real property” because of the exception to sovereign immunity. 42 Pa.C.S.A. § 8541 et seq. We find their analysis helpful in our interpretation of “improvement to real property”. The Commonwealth Court, relying on a decision of our Supreme Court, divided property into three categories:

Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvements, and not particularly fitted to the property with which they are used; these always remain personalty____ Second, those which are so annexed to the property, that they cannot be removed without material injury to the real estate or to themselves; these are realty____ Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty, depending on the intention of the parties at the time of annexation____ Clayton v. Lien-hard, 312 Pa. 433, 436-37, 167 A. 321, 322 (1933).

Canon-McMillan School District v. Bioni, 127 Pa.Cmwlth. 317, 320-21, 561 A.2d 853, 854 (1989) (Canon-McMillan III). If we apply these categories to the four cases we have discussed previously, we find that the elevator in Mitchell clearly falls into category two, real property, because it is reasonable to assume that to remove the elevator, which is clearly annexed to the property, would require a material injury to the building. Next, we find that the skylight/skydome in Catanzaro falls into category two for the same reasoning we applied to the elevator. The plywood in Ferricks fits into category one, personalty, because it is not particularly suited to the property for which it is to be used. We held it was a multipurpose item and, therefore, it remains personalty. Finally, we examine the weld and side trim machine in Radvan. This machine appears to fall into category two provided the facts show that removing the machine would materially injure the real property or the machine. The facts as developed in our opinion did not address this, therefore, we can use this machine to illustrate the use of category three. Whether it becomes real property or remains personalty is determined by the intent of the party who annexes the item to the real property at the time it is annexed. The Commonwealth Court held:

In determining intent, “ ‘it is not so much what a particular party intended his legal rights to be, as it is what intended use of the property was manifested by the conduct of the party.' ” McCloskey v. Abington School District, 101 Pa.Commonwealth Ct. 110, 114, 515 A.2d 642, 644 (1986)....

Canon-McMillan III, 127 Pa.Cmwlth. at 321, 561 A.2d at 854-855 (footnote omitted). In Canon-McMillan I and III, a wood lathe in a school industrial arts class caused injury to a student. The Commonwealth Court found that the wood lathe was personal property (and therefore the school district was immune from liability) because the facts showed that the school district “did not intend to make the lathe part of the realty”. Id. The Court found the following facts dispositive:

[T]he wood lathe (1) was cast iron and weighed approximately 800 pounds, (2) had holes in each of its four feet for attachment but had not been attached to the floor, (3) was connected with a flexible electric wire to an electrical duct on the wall at the time of the accident, (4) had been moved to a different room at least once, and (5) had been moved short distances within the classroom for cleaning, coursework and classroom redesign.

Id., 127 Pa.Cmwlth. at 321, 561 A.2d at 855 (citing Canon-McMillan I, 110 Pa.Cmwlth. at 594, 533 A.2d at 183. The Court also found the following facts important:

School District witnesses testified that the lathe had not been attached to the floor because the industrial arts department needed flexibility, ...; that the industrial arts program was modified at the direction of the Department of Education to accommodate an exploratory program, ...; that the lathe had been moved to different classrooms within the school and within the classroom itself, ...; that at the time of installation the lathe was plugged into a conventional 220 electrical outlet, ...; and that at the time of the accident the lathe was hardwired to the wall of the classroom____ Thus, as we noted in Canon-McMillan I, the lathe is connected to the realty only by gravity and an electrical connection.

Canon-McMillan III, 127 Pa.Cmwlth. at 321-22, 561 A.2d at 855. These facts were necessary for the court to determine the intent of the parties. The Commonwealth Court held that intent is a question for the factfinder, although the question of what is real estate is a matter of law for the court to determine. See Canon-McMillan III, supra, and Wilson v. Ridgway Area School District, 141 Pa.Cmwlth. 607, 596 A.2d 1161 (1991).

We are persuaded that the analysis employed in the Canon-McMillan cases would aide our Court’s analysis of what constitutes an improvement to real property. We recognize that “real property” and “improvement to real property” are not identical terms. We do find, however, that “real property” in the second and third categories, as defined by Clayton v. Lienhard, supra, start as personal property and become improvements to the real property to such an extent that they are considered real property for purposes of the sovereign immunity exception for real property.

The courts of Pennsylvania have construed this exception to sovereign immunity narrowly so as to limit causes of actions against governmental entities. Wurth by Wurth v. City of Philadelphia, 136 Pa.Cmwlth. 629, 584 A.2d 403 (1990). Likewise, Pennsylvania courts have construed the statute of repose (42 Pa.C.S.A. § 5536) broadly so as to limit the causes of actions by plaintiffs against those individuals covered in that statute. We find that in both instances, the expressed legislative intent is to limit the actions of plaintiffs. Therefore, we find that to accept the analysis of the Commonwealth Court as the analysis we should apply in our Court is in harmony with the expressed legislative intent of both statutes.

In applying this analysis to the present case, we find the trial court relied on the following facts in its decision: The starting blocks were removable and annexed to the pool by bolts. It is not clear that these starting blocks are “manifestly furniture” which is “not particularly fitted to the property with which they are used”, and, therefore, they do not fall squarely within category one (personalty). It is also not clear that these starting blocks were so annexed to the real property that to remove them would cause “material injury to the real estate or to themselves”, and, therefore, they do not fall squarely within category two (realty). That leaves category three, to which these items seem to fit quite well. To reiterate, category three contains those items:

which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed____

Canon-McMillan III, supra, 127 Pa.Cmwlth. at 320, 561 A.2d at 854. The trial court in the present case found that the starting blocks were removable and were attached by bolts. Trial Court Opinion at 3. These facts tend to place the starting blocks in category three, but do not tell us anything about the intent of the parties. Under the analysis we adopt today, the determination of whether a category three item is personalty or an improvement to real property must be based on the intent of the party annexing the item at the time it is annexed. In other words, we must know what the YMCA intended at the time the starting blocks were installed. This must be determined from the conduct of the YMCA. We do not have those facts before us. Therefore, we find that we do not have sufficient facts of record to determine whether the trial court abused its discretion in denying Sta-Rite’s motion to amend their answer and new matter.

We remand to the trial court to determine whether the statute of repose is an available defense to Sta-Rite in light of our decision here requiring the intent of the parties to be considered. We quash as interlocutory that part of the appeal which challenges the grant of the Nolls’ motion to amend their complaint.

Order quashed in part and remanded in part for further proceedings. Jurisdiction relinquished.

POPOVICH, J., files a Concurring and Dissenting Opinion.

POPOVICH, Judge,

concurring and dissenting.

I join in all but that portion of the Majority’s Opinion denying Sta-Rite Industries, Inc. the opportunity to amend its answer and new matter to assert the Statute of Repose defense until a fact-finding proceeding is held to ascertain the (co-defendant’s) YMCA’s “intention” in installing “starting blocks” in its swimming pool.

The plaintiff was injured allegedly upon using the starting blocks. The blocks were anchored to the edge of the pool with bolts. However, the blocks were detachable upon removal of the bolts. Because this causes the blocks to fall within category three (physically attached, but removable without destroying chattel or property to which annexed) of the Majority’s newly created personalty/realty test for application of the Statute of Repose, a remand is perceived necessary to remedy the void with regard to the “intention” of the YMCA when the blocks were fitted to the pool.

The Majority believes that the YMCA’s “intention” is pivotal to a determination of whether an item of personalty is to be treated as realty, and, ultimately, whether its conversion insulates Sta-Rite Industries, Inc. under the Statute of Repose.

I believe that the Majority invites a response on remand that: “At the time the personalty was put in place — annexed to the realty — the intention was to have it become a permanent improvement despite its detachability from the realty.” This would invite parroting the correct words to circumvent accountability.

Accordingly, unlike the Majority, I would endorse a review of the facts to make an objective versus a subjective analysis of “any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property ... within 12 years after completion of construction of such improvement____” 42 Pa.C.S.A. § 5536(a). To do otherwise would open the door to a perversion of the personalty/realty test.

The facts need not be supplemented except through the amendatory pleading rules of civil procedure. Otherwise, the case should stand on its merits as developed by the pleadings, interrogatories, answers and depositions.

At bar, my review of the record discloses that the starting blocks fall into the Majority’s category three: Personalty physically attached to realty, but is removable without destruction to the product or the property to which it is affixed.

Under such a standard, I find the starting blocks to be part and parcel of the realty, the consequences of which trigger the Statute of Repose and afford Sta-Rite Industries, Inc. the opportunity to amend its answer and new matter without resorting to a needless remand for fact-finding. The record is sufficient to stand on its own.

For the reasons herein stated, I respectfully join in part and dissent in part.

      . After a thorough review of the record before us, we do not find that these answers were filed as a part of the official record. We are, therefore, precluded from considering the information contained there.

      . The Nolls would argue that the trial court had before it all papers of record, but we find that in the setting of a motion to amend a pleading, it is more likely that the trial court did not examine the entire record with the scrutiny it would have if this motion had been one for summary judgment. The record in the case includes numerous pleadings, papers and depositions involving multiple parties.

      . A fixture has been defined by Pennsylvania courts as:
      an article of personal property which by reason of physical annexation to a building becomes in legal contemplation a part of the real estate. See 16 P.L.E. Fixtures Section 1 (1959 and Supp.1982).

        Catanzaro, 339 Pa.Super. at 485, n. 4, 489 A.2d at 265, n. 4.

      . We note, as the Commonwealth Court did in Canon-McMillan School District v. Bioni, 110 Pa.Cmwlth. 584, 533 A.2d 179 (1987), alloc. granted, 519 Pa. 668, 548 A.2d 257 (1988), alloc. den., 520 Pa. 608, 553 A.2d 970 (1988), remanded 521 Pa. 299, 555 A.2d 901 (1989) (Canon-McMillan I), that:
      damage does not necessarily have to be physical damage. Our supreme court in Central Lithograph Co. v. Eatmor Chocolate Co., 316 Pa. 300, 175 A. 697 (1934), found a material injury had been caused to the realty by the removal of certain personalty (candy making equipment) because the manufacturing plant’s value would be materially diminished without the equipment.

        Canon-McMillan I, 127 Pa.Cmwlth. at 593, n. 9, 533 A.2d at 183, n. 9 (emphasis in original).


author: HUDOCK, Judge:

text:
    611 A.2d 227
    Raymond JAZBINSEK, Jr., Appellee, v. Shu Jen CHANG and Chen Tu Ou, t/a Ou’s International, Appellants.
    Superior Court of Pennsylvania.
    Argued April 21, 1992.
    Filed June 10, 1992.

      John W. Jordan, IV, Pittsburgh, for appellants.
    Russell R. Sanders, Pittsburgh, for appellee.
    Before TAMILIA, HUDOCK and HESTER, JJ.
   HUDOCK, Judge:

Defendants Shu Jen Chang and Chen Tu Ou (Chang/Ou) appeal the judgment entered in favor of Plaintiff Raymond Jazbinsek (Jazbinsek) after a jury found them to be 35 percent causally negligent for his injuries. The Honorable Livingston M. Johnson molded the verdict of $72,000.00 to reflect the proportionate liability of the defendants. Upon Jazbinsek’s request, Judge Johnson also assessed delay damages according to the proportionate liability of the defendants and Rule 238 of the Pennsylvania Rules of Civil Procedure, 42 Pa.C.S. (Purdon 1987 & Supp.1991). We reverse.

This case arises out of an automobile accident. On October 22, 1987, Jazbinsek was riding as a passenger in the automobile of James V. Ipoletto (Ipoletto). He was injured when Ipoletto’s car struck the back end of a delivery truck owned by Ou and driven by Chang as the truck crossed an intersecting traffic lane from an adjoining ramp. Jazbinsek commenced this action against both drivers and the owner of the truck. The defendants denied liability and filed crossclaims against each other for indemnity and contribution. The case proceeded to trial by jury on January 17, 1991. After nine days, the jury returned a verdict for Jazbinsek and against Chang/Ou and Ipoletto.

The trial court molded the verdict to reflect a division of the damages awarded in proportion to the liability assigned; Ipoletto was liable for 65 percent of the $72,000.00 verdict or $46,800.00; Chang/Ou were liable for 35 percent of the $72,000.00 verdict or $25,200.00. After the verdict was recorded, Jazbinsek petitioned the trial court for delay damages pursuant to Pa.R.C.P. 238. Judge Johnson assessed $12,417.07 in delay damages against Ipoletto and $918.07 in delay damages against Chang/Ou.

The delay damages to be paid by Chang/Ou were less than those assessed against Ipoletto for two reasons: 1) Chang/Ou were less causally negligent than Ipoletto and 2) Chang/Ou made a written offer of settlement which satisfied the requirements of Rule 238(b)(1) for release from further obligation to pay delay damages. Chang/Ou and Ipoletto moved for post-trial relief and then voluntarily withdrew their motions.

Following private negotiations between the parties, Chang/Ou agreed to pay their share of the verdict. Ipoletto, however, failed to remit his proportionate share of the verdict because his liability coverage was limited to $25,-000.00. So, Jazbinsek attempted to recoup Ipoletto’s unpaid balance of $21,800.00 from Chang/Ou. Responding that the verdict as apportioned failed to create joint and several liability, Chang/Ou refused to pay any portion of the verdict not expressly attributed to them. Two months after the verdict had been entered, but within one day of Chang/ Ou’s refusal to pay the unremitted balance, Jazbinsek sought intervention by the trial court with a motion for clarification of the verdict. Judge Johnson granted this motion, ordering “that the Verdict dated January 29, 1991, creates joint and several liability among the three Defendants, including the assessment of Pennsylvania Rule of Civil Procedure 238 damages.” Order of April 11, 1991. Final judgment having been entered six days later pursuant to the order, Chang/Ou appealed.

Chang/Ou raise two issues for our consideration. First, did the trial court abuse its discretion in “remolding the verdict” on a motion filed over two months after the verdict was rendered and after Jazbinsek had affirmatively acquiesced in the original apportionment of liability? Second, when one of two defendants has made a settlement offer within 125 percent of the ultimate total verdict, is the offering defendant relieved of liability for delay damages occurring after the date of his offer?

We note initially that this issue is properly before us because the trial judge chose to address the merits of Jazbinsek’s motion for clarification despite its two-month untimeliness. See Pomposini v. T. W Phillips Gas & Oil Co., 397 Pa.Super. 564, 580 A.2d 776 (1990) alloc. granted, 528 Pa. 631, 598 A2d 284 (1991) (issue raised in untimely post-trial motion was preserved for appellate review where trial court considered motion on its merit rather than striking it as untimely). Having reviewed the record, we find no merit to Chang/Ou’s first argument.' As provided by the Pennsylvania Rules of Civil Procedure, “at every stage of any ... action or proceeding [a trial court] may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.G.P. 126, 42 Pa.C.S. (Purdon 1987). Furthermore, a trial court is vested with broad discretion to dispose of untimely procedural motions, such as the untimely filing of post-trial motions for relief. Wittig v. Carlacci, 370 Pa.Super. 584, 537 A.2d 29 (1988). Empowered to effect a just resolution, the trial court may, upon written motion, “affirm, modify or change the decision ... or ... enter any other appropriate order.” Pa.R.C.P. 227.1, 42 Pa.C.S. (Purdon 1987 & Supp.1991). In cases involving equitable demands, a trial court may modify or rescind an order beyond the thirty-day statutory limit from entry of the order. Vanleer v. Lerner, 384 Pa.Super. 558, 559 A.2d 577 (1989). Reviewed on appeal for abuse of discretion, the trial court’s decision will not be disturbed unless, “in reaching a conclusion ... the judgment exercised [was] manifestly unreasonable.” Brodsky v. Philadelphia Athletic Club, 277 Pa.Super. 549, 553, 419 A.2d 1285, 1287 (1980).

In light of our standard of review, we defer to Judge Johnson’s discretion in clarifying the verdict to vindicate Jazbinsek’s right to full recovery. Contrary to Chang/Ou’s characterization, the order entered two months after the verdict did not serve to mold the verdict. By requesting clarification, Jazbinsek was not challenging the original apportionment of liability; he called upon the court’s equitable powers to secure his right to full satisfaction of the verdict from the parties responsible for his damages. To effect full satisfaction, Judge Johnson clarified the nature of liability imposed on the defendants, not the amount of liability attributable to each. The granting of Jazbinsek’s untimely motion for clarification did not prejudice the rights of the parties.

In fact, Judge Johnson’s order is in complete accord with the law of comparative negligence in this Commonwealth. Section 7102(b) of the Judiciary Act, 42 Pa.C.S. (Purdon 1982) is directly on point:

(b) Recovery against joint defendant; contribution.— Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution. Judge Johnson’s order clarifying the verdict did not alter

the assignment of liability; rather, his order used the traditional phrase “jointly and severally liable” to apply the concept embodied in the comparative negligence statute. Even without Judge Johnson’s clarifying order, Chang/Ou would still be required to pay the full amount awarded, if requested to do so by Jazbinsek, and then seek contribution from Ipoletto for the amount in excess of their proportionate share. See Tindal v. Southeastern Pennsylvania Transp. Authority, 385 Pa.Super. 94, 560 A.2d 183 (1989) (en banc) (plaintiff may recover against a tortfeasor in excess of the tortfeasor’s pro-rata share of damages in a suit where multiple tortfeasors are found liable; the overpaying tortfeasor may then seek contribution from the other responsible defendants for their overpayment); Wirth v. Miller, 398 Pa.Super. 244, 580 A.2d 1154 (1990) alloc. granted, 527 Pa. 628, 592 A2d 1296 (1991) (same).

As their second issue for review, Chang/Ou argue that requiring them to pay all delay damages violates Pa.R.C.P. 238. Because they made an offer to settle and kept it open for ninety days or until trial, Chang/Ou claim they were relieved of liability for delay damages beyond the date of their offer. We agree.

The 1988 Explanatory Comment to Rule 238 cites Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 151 (1981) for the two purposes justifying delay damages: 1) alleviating delay in the courts and 2) encouraging defendants to settle meritorious claims as soon as reasonably possible. The original Rule 238 was applied automatically, but Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A2d 1350 (1986) introduced the concept of fault as an element to be considered in awarding delay damages.

Judge Johnson’s original calculations for delay damages reflect his decision to relieve Chang/Ou of liability for delay damages accruing after the date of their settlement offer. Order of April 5,1991. These calculations are above reproach. However, his subsequent order assessing joint and several liability against Chang/Ou for all delay damages, despite their offer to settle, circumvents the objectives of Rule 238.

The gravamen of Chang/Ou’s complaint lies with operation of Rule 238 damages where one defendant makes an adequate offer to settle and the other defendant does not. The Honorable Judge Spaeth foreshadowed this very scenario in a footnote to his opinion on Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, 330 Pa.Super. 420, 479 A.2d 973 (1984). Stated Judge Spaeth,

[Reilly] is not a case in which one defendant has made an adequate settlement offer under the terms of the Rule and the other has not. We express no view on whether it would be consistent with the purposes of the Rule in that situation to hold the defendant who had made an adequate settlement offer responsible for the delay damages attributable to his codefendant. See Lavin v. Mylecraine, 307 Pa.Super. 564, 453 A.2d 1031 (1982) (dictum that if defendants who actually settled had made an offer that was rejected, they would have been exonerated from any more damages attributable to the period after the offer was made).

Reilly, 330 Pa.Superior Ct. at 476, 479 A.2d at 1002 n. 11.

The facts before us present a case in which one defendant has made an adequate settlement offer under the terms of Rule 238 and the other defendant has not. We are now prepared to express our views as to the resolution of this issue. In doing so, we adopt the dictum of Mylecraine and find Chang/Ou are not jointly and severally liable for delay damages accruing after the date of their offer.

Chang/Ou made an offer of settlement which cut off their liability for further delay damages beyond the date of their offer; they will not be penalized for additional delay damages arising from Ipoletto’s failure to make an offer of settlement. Were Chang/Ou held ultimately liable for delay damages attributable solely to Ipoletto, even though they made a conforming offer of settlement, their offer would amount to nothing more than an empty gesture. We fail to see how the purposes of Rule 238 are served if a defendant who makes a conforming offer must nevertheless pay all delay damages, including those accruing after the offer.

At first glance, our decision in this case may appear to collide with the holdings of Tindal and Wirth cited above. We find these two authorities to be distinguishable, however. One of the three defendants in Tindal made a written offer of settlement to the plaintiffs. The other two defendants sought to avoid being held ultimately responsible for payment of the delay damages assessed not only against them but also against the settling defendant. The Tindal court stated, “Liability normally follows verdict. Therefore, [multiple defendants] are jointly and severally responsible for the entire amount of delay damages because they are jointly and severally liable for the entire amount of the verdict.” Tindal, 385 Pa.Superior Ct. at 104, 560 A.2d at 189. The non-settling defendants in Tindal argued for proportionate-share delay damages, seeking to benefit from the settling defendant’s offer and, thereby, reduce their liability. This they were precluded from doing.

In the case sub judice, had Chang/Ou not made an offer of settlement, the holding of Tindal would apply to make Chang/Ou and Ipoletto jointly and severally liable for the entire amount of delay damages. An offer was made in this case, however, which offer activated the relief available to Chang/Ou pursuant to Rule 238. Unlike the complaining defendants in Tindal who sought to use their co-defendant’s offer to reduce their own liability, Chang/Ou seek to enforce their statutory right to exoneration from delay damages accruing after their offer. Allowing Ipoletto— who made no offer — to take advantage of Chang/Ou’s conforming offer and evade the payment of delay damages attributable to the period after Chang/Ou’s offer would be inequitable.

As for Wirth, that case involved the ramifications of one joint tortfeasor’s release on the other joint tortfeasor’s liability for delay damages. The trial court had assessed delay damages on the entire verdict and then reduced the verdict and the delay damages by the amount of the release. The non-released defendant argued that the trial court should have deducted the release amount from the verdict prior to the application of delay damages. The Wirth court agreed with the non-released defendant, holding that he was jointly and severally liable for the entire amount of the verdict, minus the release amount paid by the released defendant, plus the resultant delay damages. Like those in Tindal, the complaining parties in Wirth sought to reduce their liability by using their co-defendant’s release to their benefit. In contrast, Chang/Ou — the offering defendants — seek to enforce the statute which exonerates them from responsibility for delay damages accruing after the date of their offer. We decline to emasculate the delay and settlement objectives of Rule 238 by holding a settling defendant liable for delay damages arising after he has made an offer. We decline to render meaningless Chang/ Ou’s offer of settlement by holding them liable for the entire amount of delay damages.

Judgment reversed. Jurisdiction relinquished.

      . Defendant James V. Ipoletto (Ipoletto) has not appealed the judgment entered against him based on the jury’s finding that he was 65 percent causally negligent.

      . Although the record includes three individual defendants, two of them, Shu Jen Chang and Chen Tu Ou, have been treated collectively throughout this litigation. Shu Jen Chang was employed on the date of the mishap by Ou’s International. Both he and defendant Chen Tu Ou have responded by way of the same pleadings and are represented by the same counsel. At trial, all parties stipulated that Chang and Ou should be treated for purposes of liability as one defendant. Accordingly, they will be considered throughout this text as a single entity.

      . By modifying the order to render Chang/Ou liable for Ipoletto’s share of the verdict, Judge Johnson also acted within his discretion and section 7102’s parameters. At oral argument, Chang/Ou conceded their responsibility for the entire verdict given Ipoletto’s refusal to pay his share.

      . We find no consequence to the fact that Mylecraine and Reilly were decided prior to the 1988 amendments to Rule 238. The sections of Rule 238 relied upon by these two cases were not adversely affected by the amendments.

      . Their concern was generated by the apparent inability of the settling defendant to meet his obligation on the underlying verdict due to the insolvency of his insurer.