author: SPAETH, Judge:

text:
    456 A.2d 569
    COMMONWEALTH of Pennsylvania v. Joseph P. PUCHALSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1982.
    Filed Feb. 11, 1983.
    Petition for Allowance of Appeal Denied June 8, 1983.

      Michael R. Sweeney, Media, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.

      Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from judgment of sentence imposed following appellant’s conviction of assault, indecent assault, and involuntary deviate sexual intercourse. Appellant argues, first, that his conviction should be reversed, and either he should be discharged because the evidence was insufficient, or he should be granted a new trial because the lower court erred in admitting hearsay testimony, and second, that his sentence should be vacated because before sentencing him, the lower court required him to submit to a polygraph examination. We affirm the conviction but vacate the sentence and remand for resentencing.

The lower court’s opinion adequately disposes of appellant’s arguments for reversal of his conviction. We shall therefore confine our discussion to appellant’s argument that his sentence should be vacated.

On December 5, 1980, appellant was brought before the lower court for sentencing. A pre-sentence investigation report had been ordered and had been received. The lower court opened the proceedings by stating as follows:

Initially I want to indicate in this matter that this case was tried sometime ago and that during the course of the trial it became apparent that there was a substantial issue to be determined, the issue of credibility and the jury resolved that issue in favor of the victim and against Mr. Puchalski.
The situation as I remember the trial was interesting in that the offense was not charged until an extended period of time after the actual offense took place. The charge was brought some months later evidently.
The jury found against Mr. Puchalski and the Court ordered a psychiatric evaluation for the purpose of setting bail. The psychiatric evaluation in essence seemed to indicate that there was a problem with Mr. Puchalski and one that was probably related to the fact that he maintained that he did not commit this crime and that psychiatric therapy might be necessary to have him adjust to the fact that he had been convicted for a crime which he maintained he did not commit.
The Court has reviewed this matter in its entirety and feels that the jury verdict was supported by the evidence. The question was one of credibility for the jury to determine. The Court felt under the circumstances it could not reverse the verdict of the jury.
The circumstances have given the Court difficulty as far as sentencing is concerned and because they are in my experience most unusual, I am going to inquire of the defendant whether he would undergo testing for the purposes of assisting the Court in ultimately disposing of this matter.
Specifically, I’m speaking in terms of a polygraphic test and/or a sodium pentothal test. The defendant is 19 years of age and obviously this sentence of this Court is going to have a substantial impact.
The crime was a nasty crime and this Court feels it would be of assistance to the Court in sentencing and I am going to ask you, Mr. Sweeney to discuss with your client whether he is willing to undergo such tests so that the Court can have additional information from which to make its ultimate decision.
R.R. 329a-331a.

Counsel for appellant stated that he “believe[d] the court’s request is in substance saying I have such terrible doubts about this case that I cannot resolve it on the record before—.” R.R., 331a. The court, however, interjected, saying:

No. You are misreading what I’m saying. The jury resolved the issues. They were not for me to resolve, but it is my job to sentence and the crime was a nasty crime and the crime by its very nature requires a penalty which fits the crime. I am seeking assistance in the determination of what the extent of that penalty will be.
R.R. 332a.

Further colloquy ensued in the course of which there was discussion about the fact that before the trial, first the Commonwealth, and then, on the advice of new counsel, appellant had requested a polygraph examination, with appellant refusing the Commonwealth’s request, and the Commonwealth then refusing appellant’s. The proceeding was then continued so that appellant’s counsel could discuss with appellant the court’s request that he submit to a polygraph examination.

At the continued proceeding, on December 12, 1980, counsel for appellant stated that appellant had agreed to submit to a polygraph examination despite the fact that counsel “recommended strongly and frequently against it.” R.R. 340a. Counsel stated that while he believed the court was entitled to require appellant to submit to psychiatric examination, he did not believe “a polygraph and sodium pentothal test ... [were] a proper basis for sentencing.” R.R. 341a; that appellant was “under duress to agree to [the' court’s request that he submit to a polygraph examination] ... [for] [i]f he refuses .:. it appears that he is hiding the truth or in some way impliedly admitting his guilt by doing that. That could affect the sentence or in his own mind he could believe that would affect the sentence.” id.; that the court’s request was “an attempt to ascertain the truth of [appellant’s] guilt or at least the truth of what he testified to in Court.” id.] that since the result of a polygraph examination was not admissible at trial, it should not be admissible at sentencing; R.R. 342a; and that if the result “comes back inconclusive or a bad result,” appellant’s appeal would be “tainted,” id. Appellant acknowledged to the lower court that counsel had told him all these reasons, but he said that nevertheless, he wished to submit to a polygraph examination.

The assistant district attorney also indicated her objection to the court’s request that appellant submit to a polygraph examination. Thus she stated “for the record [that] our office is concerned about the precedent of this case____ From the victim’s point of view ... the concern was that it appeared that your Honor was bending over backwards to give the defendant every opportunity.” R.R. 343a-344a.

The court nevertheless stated that it would “determine who will administer the test,” R.R. 344a, and the proceeding was continued so that the examination could be conducted.

On June 17, 1981, appellant submitted to a polygraph examination on the issue of “whether or not [he] was telling the truth when he stated he had no guilty knowledge of nor did he participate in the attack on [the victim]____” R.R. 327a. In the opinion of the examiner, appellant’s reactions to the test questions on this issue showed “that he is not telling the truth in this matter.”

The report of the examination was forwarded to the lower court, and on June 19, 1981, appellant was brought before the court for sentencing. Counsel for appellant reiterated his objections to the polygraph examination and to the use of the result. The lower court, however, stated:

Well, in the instant situation, Mr. Sweeney, the polygraph examination that was done merely confirmed what the jury indicated in this case. . The matter is now before me as if the jury had convicted [appellant] and it’s appropriate for the Court to determine what is appropriate in this situation based upon the judge’s finding. That’s exactly what I intend to do.
The polygraph may have worked to [appellant’s] advantage had it come out differently but it certainly doesn’t work to his disadvantage because the matter is before me on a conviction by a jury and I have to sentence accordingly.
R.R. 353a.

Sentence was then imposed.

. The first issue raised by these proceedings is whether the lower court requested appellant to submit to a . polygraph examination because the court, despite its conclusion that the evidence was sufficient to support the verdict, remained doubtful of appellant’s guilt. Appellant’s argument that this was the reason for the court’s request would appear to be supported by some of the court’s remarks during the sentencing proceedings, in particular, the court’s initial statement that the “most unusual” circumstances—evidently alluding to the “extended period” between the offense and the charge—“have given the Court difficulty as far as sentencing is concerned,” R.R. 330a, and its statement at the last hearing that the result of the polygraph examination “merely confirmed what the jury indicated in this case,” R.R. 353a. However, when counsel for appellant suggested that the reason for the court’s request that appellant submit to a polygraph examination was that the court had “terrible doubts,” R.R. 331a, the court replied, “You are misreading what I’m saying____” R.R. 332a. We take this to mean that the court was not requesting the examination to relieve it of any doubt of appellant’s guilt, and we shall accept the court’s statement.

The second issue is whether appellant’s decision to submit to a polygraph examination was so voluntary that he cannot now complain about it on appeal. Without doubt, in some sense appellant’s decision was voluntary: the court did not in so many words order but rather asked appellant whether he was willing to submit to the examination; it gave appellant time to consult with counsel about whether he should submit; and after consulting with counsel, and against counsel’s recommendation, appellant told the court he wished to submit. In this regard, we note that in its opinion the court states that it “inquired of the Defendant as to whether or not he still [as he once had, before the trial] wished to submit to a polygraph examination.” Slip op. at 8, Brief for Appellant at 64.

We are nevertheless satisfied that appellant has not waived his right to object to the examination. In view of the court’s power to determine the limits of appellant’s liberty, its “inquir[y]” cannot have been understood by appellant as anything other than a requirement that he submit to examination. A defendant who stands before a court, about to receive sentence, is in a most vulnerable position. He is for practical purposes at the court’s mercy. As counsel for appellant quite correctly stated, in arguing to the lower court: “If he refuses [the court’s request that he submit to a polygraph examination] ... it appears that he is hiding the truth or in some way impliedly admitting his guilt____” R.R. 341a. It would be most unfair to hold that if such a defendant is not bold enough to refuse, he will lose his right to object to the request. Cf. Commonwealth v. Taylor, 494 Pa. 399, 431 A.2d 915 (1981) (Where psychological coercion overbears a criminal defendant’s will, resulting statements will be suppressed).

The third issue is whether the lower court was entitled to receive the result of the polygraph examination. As appears from the portions of the sentencing proceedings that we have quoted above, the court stated that it wished the result because it was “seeking assistance in the determination of what the extent of [the] penalty will be.” R.R. 322a. However, we cannot accept this statement.

Certainly the court was entitled to such assistance as would enable it to form a judgment of appellant’s character, for the essence of a just sentence is one that takes into account both the circumstances of the offense and the offender’s individual characteristics, as these bear upon the degree of his culpability and the possibility of his rehabilitation. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979); 42 Pa.C.S.A. §§ 9701-81 (1982); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). However, a polygraph examination could not afford such assistance. As counsel for appellant argued to the lower court, a psychiatrist could advise the court as to appellant’s character, but a polygraph examination couldn’t. For it could only concern whether appellant had committed the offense, and any assistance in that regard was improper; the jury had already decided who had committed the offense, and the lower court, correctly, had upheld the jury’s verdict.

Furthermore, a polygraph examination could afford no assistance even on whether appellant had committed the offense. For one can have no confidence in the reliability of the result of the examination. It has therefore repeatedly been held that the result is inadmissible for “any purpose,” Commonwealth v. Gee, 467 Pa. 123, 141, 354 A.2d 875, 883 (1976); Commonwealth ex rel. Riccio v. Dilworth, 179 Pa.Super. 64, 115 A.2d 865 (1955), even when stipulated to, Commonwealth v. McIntosh, 291 Pa.Super. 352, 357, 435 A.2d 1263, 1265 (1981) (“We still do not discern the logical process whereby unreliable evidence becomes reliable merely through stipulation.”); Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980) (collecting cases).

The remaining issue is whether the lower court’s request that appellant submit to a polygraph examination and its receipt of the result of the examination require that the sentence be vacated and the case remanded for resentencing. In its opinion the lower court expresses the view that vacation and remand are not required. Thus it states:

The reality of this situation is that the polygraph results did not prejudice [appellant]. [Appellant’s] sentence was not based upon the results of the polygraph examination. The sentence would have been the same even if the test had never been given.
Slip op. at 10, Brief for Appellant at 66.

However, we cannot accept this statement either.

In the first place, it is essential to the sentencing process, not only that the sentence imposed be just, but that it be perceived as just, by the victim, the offender, and the community generally. Commonwealth v. Riggins, supra. Here, by requesting a polygraph examination and receiving its result, the lower court precluded, or at least interfered with, perception of the sentence as just. As the assistant district attorney argued to the lower court, from the victim’s point of view it could only appear, no matter what the court said its purpose was in requesting a polygraph examination, that the court “was bending over backwards to give [appellant] every opportunity,” R.R. 344a. For since the examination could only concern appellant’s guilt, the victim could only conclude that appellant was being given the opportunity to persuade the court that despite the jury’s verdict, he was not guilty. From appellant’s point of view, as discussed above, the court’s request put appellant in a position in which he felt he had to assent to the court’s request, despite his counsel’s recommendation. And from the community’s point of view especially perhaps, but also from the victim’s and appellant’s, the court’s request injected into the sentencing process a procedure consistently condemned by the courts as unreliable and therefore incompatible with the careful and difficult deliberations attendant upon the formulation of a just sentence.

In addition, the lower court’s statement that “[t]he sentence would have been the same even if the test had never been given” is difficult to reconcile with other statements by the court. As noted above, at the sentencing proceeding the court stated that “[t]he polygraph may have worked to [appellant’s] advantage had it come out differently but it certainly doesn’t work to his disadvantage because the matter is before me on a conviction by a jury and I have to sentence accordingly.” R.R. 353a. And in its opinion the court states that “[t]he Court also made it clear that [appellant] could only have benefited by the test and that it could not have worked to his disadvantage.” Slip op. at 10, Brief for Appellant at 66. (The court does not indicate where in the record it did this; we assume it had in mind the passage just quoted from page 353a of the Reproduced Record.) But if “[t]he polygraph may have worked to [appellant’s] advantage,” then the sentence would not “have been the same if the test had never been given.” For the court’s reference to “advantage” can only mean that if appellant had “passed” the examination, instead of “failing” it, he would have received a more favorable sentence. Indeed, the lower court acknowledges as much, for in its opinion it states:

Such benefits [i.e. the benefits from submitting to the polygraph examination] included not only the additional and somewhat persuasive arguments which would be available to [appellant] at the time of sentence if the test results were favorable to [appellant], a situation which the Court had contemplated and was willing to face given these circumstances, but also the possibility that the results of the test might help [appellant] to admit his guilt and come to terms with the reality of his situation. This is, of course, the universally accepted first step in the rehabilitation process.
Slip op. at 10, Brief for Appellant at 66 (emphasis added).

Finally, it is well-settled that the imposition of a criminal sentence based on misinformation contravenes due process of law:

The information used by a judge in imposing sentence need not necessarily meet the standards of admissible evidence at trial; however, the due process clause does apply to the sentencing procedure [citing Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States ex rel. Jackson v. Myers, 374 F.2d 707 (3d Cir.1967); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ]
The critical fact in each of these cases [in which resentencing was ordered on due process grounds] was that the record revealed the presence of misinformation. Commonwealth v. Shoemaker, 226 Pa.Super. 203, 212-213, 313 A.2d 342, 347-348 (1973), aff'd, 462 Pa. 342, 341 A.2d 111 (1975).

See also Commonwealth v. Walker, 286 Pa.Super. 239, 428 A.2d 661 (1981).

Given its unreliability, the result of a polygraph examination must be regarded as impermissible “misinformation.” Where it “reasonably appears” that the court has relied upon an impermissible factor,

[t]he correct inquiry ... is not whether the trial court considered legitimate factors in fixing sentence, but whether it considered only such factors____
... [I]n making this determination it is not necessary that an appellate court be convinced that the trial judge in fact relied upon an erroneous consideration; it is sufficient to render a sentence invalid if it reasonably appears from the record that the trial court relied in whole or in part upon such a factor.
Commonwealth v. Bethea, 474 Pa. 571, 579-580, 379 A.2d 102, 106-7 (1977) (emphasis added).

See also Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980). Here it does “reasonably appear[] from the record” that the lower court “relied in whole or in part” upon the result of the polygraph examination. This conclusion is implicit in the lower court’s insistence upon the examination, over the objections of both appellant’s counsel and the assistant district attorney; and it is explicit in the court’s reference in its opinion to “the additional and somewhat persuasive arguments which would be available to [appellant] at the time of sentence if the test results were favorable to [appellant]____”

In closing, we wish to emphasize that our disposition of this case rests solely on the ground that the procedure employed in imposing appellant’s sentence was improper: a sentencing judge may neither request nor consider the results of a polygraph examination in imposing sentence. We do not suggest that the content of appellant’s sentence is in any way objectionable. We have not considered that issue. See Commonwealth v. Wicks, 265 Pa.Super. at 314 n. 8, 401 A.2d at 1227 n. 8.

The conviction is affirmed, but the judgment of sentence is vacated and the case is remanded for resentencing. Jurisdiction is relinquished.


source: Caselaw Access Project

license: Public Domain

text:
    456 A.2d 575
    Vincent GUARINO and Angelina Guarino, his wife v. Henry DiBIASE and Robert E. Stairs. Appeal of Robert E. STAIRS.
    Superior Court of Pennsylvania.
    Argued March 17, 1982.
    Filed Feb. 11, 1983.
    Joyce Mazero, Pittsburgh, for appellants.

      Patrick J. Loughney, Pittsburgh, for appellees.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from an order granting a motion for summary judgment. The appeal will be quashed.

On December 22, 1978, an automobile driven by Robert Stairs crossed into the lane of oncoming traffic and collided with an automobile driven by Henry DiBiase. Vincent Guarino was DiBiase’s passenger, and was hurt in the accident. Guarino and his wife, Angelina, sued both Stairs and DiBiase. Stairs filed a cross-claim against DiBiase, asserting that DiBiase was solely liable or liable for contribution or indemnification. The effect of this cross-claim was to make DiBiase an additional defendant to whom Stairs is in the position of plaintiff. Pa.R.C.P. 2252, 2255.

At his deposition Mr. Guarino said that DiBiase had warned him of the impending collision, had brought his automobile to a stop in the proper lane just before the collision, and could have done nothing to avoid the accident. DiBiase then moved for summary judgment, and the lower court granted the motion. Stairs has appealed.

DiBiase’s motion only requested judgment in his favor; it did not acknowledge that he was, in effect, being sued by Stairs as well as by the Guarinoes. However, the lower court’s order specifically granted judgment in his favor against Vincent and Angelina Guarino only. If the lower court had also granted judgment against Stairs, that would have been error. For only the Guarinoes are bound by the admissions in Vincent Guarino’s deposition, and judgment against Stairs would have been contrary to the rule of Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). Because the lower court properly did not grant summary judgment in DiBiase’s favor against Stairs, and therefore the summary judgment against the Guarinoes cannot be used against Stairs, DiBiase is still in court and still must defend against Stairs’s cross-claim.

We recognize that Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Superior Ct. 422, 381 A.2d 990 (1977), would appear to allow Stairs to appeal the grant of summary judgment in favor of his co-defendant DiBiase. However, Carollo and the cases on which it relies, East Broad Top Transit Co. v. Flood, 326 Pa. 353, 192 A. 401 (1937), and Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295 (1936), are all cases where the order being appealed let the co-defendant out of the case entirely. That is not true here. So far as the claims and interests of Stairs are concerned, DiBiase is still in the case. Clearly the Guarinoes could have appealed the grant of summary judgment against them. However, in view of Vincent Guarino’s admissions it is hardly surprising that they did not. Because judgment was not entered against Stairs, he does not have standing to appeal the order granting judgment against the Guarinoes.

The appeal is quashed.


author: HESTER, Judge:

text:
    456 A.2d 576
    Grant HUNSICKER, George W. Rhoads and Joan E. Rhoads, his wife, Richard A. Koch and Faye A. Koch, his wife, and Elwood J. Blocker and Mary Jane Blocker, his wife, Appellants, v. J. Gordon KATZ and Shirley G. Katz, his wife.
    Superior Court of Pennsylvania.
    Argued June 2, 1982.
    Filed Feb. 11, 1983.

      Paul A. McGinley, Allentown, for appellants.
    Cheryl Ann Klepper, Palmerton, for appellees.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   HESTER, Judge:

This appeal arises from the issuing of a Decree Nisi entered on May 18, 1981, and a final Order, entered on November 4, 1981, by the Honorable Albert H. Heimbach, Court of Common Pleas of Carbon County, denying appellants request for a mandatory injunction which would compel the appellees to remove that portion of their garage which encroaches upon the right-of-way of Ochre Street, in the Borough of Lehighton, Carbon County.

A procedural and factual history of the case is as follows:

Appellants and appellees are owners of lots in what is presently known as Northern Acres Development in Lehighton Borough. The plan has been recorded. The development was originally laid out by Charles Weirbach for the Beckendorf Estate in 1903. Lots were sold according to the Beckendorf plan. On April 8, 1970, appellees purchased their lot in the plan and constructed a home with an attached garage fronting on North 6th Street and adjoining Ochre Street to the north and King Alley to the west. The garage encroached onto Ochre Street, a distance of 8.15 feet. Ochre Street as laid out is 49.5 feet wide.

When appellees purchased their lot and constructed their home in 1970, that part of Ochre Street between 5th and 7th Streets and North 6th Street immediately north of Ochre may best be described as woodland, brush and wild shrubbery with no reasonable street boundary markings. At the time of the rendering of the Decree Nisi and accompanying Opinion by the lower court on May 18, 1981, Ochre Street west of North 6th Street was termed “impassible.”

Appellants, as stated, are lot owners in this development. Mr. Hunsicker purchased his lot in 1968. The Kochs and Rhoads families purchased their property in 1967 and the Blockers purchased their lot in 1978. All of the appellants except the Blockers reside on Ochre Street between 4th and 5th Street. The Blockers reside on North 7th Street.

Appellants’ reasons for seeking a mandatory injunction as stated to the lower court are twofold: 1) appellants have an interest in an orderly street system as planned by the Beckendorf Estate; and 2) the value of appellants’ property will be decreased if the encroachment onto Ochre Street is permitted to continue.

It is well-established that appellants as lot owners in the development possess easement rights to the use and enjoyment of streets and alleys as public ways which are laid out on the plan. In In Re: Pearl Street, 111 Pa. 565, 571-72, 5 A. 430, 432 (1886), the Pennsylvania Supreme Court enunciated this principle in stating:

The evidence was sufficient to prove a dedication of the street to public use. Trutt v. Spotts, 87 Pa.St. [339] 341; Transue v. Sell, 14 Wkly.Notes Cas. 397. To hold otherwise would enable the proprietor of a body of lands, which he sells in lots, to perpetrate a gross fraud. When he sells and conveys the lots according to a plan which shows them to be on streets, he must be held to have stamped upon them the character of public streets. Not only can the purchasers of lots abutting thereon assert this character, but all others in the general plan may assert the same.

Also, there is no qualification that the street need to be opened. As stated in Vogel v. Haas, 456 Pa. 585, 588, 322 A.2d 107, 109 (1974), quoting from Brodt v. Brown, 404 Pa. 391, 394-95, 172 A.2d 152, 154 (1961):

“Where a lot of land is conveyed and the deed makes reference to a plan upon which the lot is laid out which, in turn, calls for a certain street thereon, this constitutes a dedication of the use of the street to the enjoyment of the purchaser as a public way though not yet opened and the map or plan becomes a material and essential part of the conveyance and has the same effect as if incorporated therein. The right of the purchaser, in such instance, will be protected in equity: Ferguson’s Appeal, 117 Pa. 426, 11 A. 885 (1888). See also Holmes v. Longwill, 89 Pa.Super. 1 (1926). Cf. Powell v. Wian, 456 Pa. 35, 318 A.2d 346 (1974).”

Moreover, it is established that lot owners, with easement reservations from a common grantor, possess the right to have obstacles which interfere with their right of passage removed from streets shown on a lot or plan:

“If he [the proprietor] lay the property out in lots, according to a plan disclosing such streets and alleys, and sells a lot, the law implies a grant or covenant on his part that all the streets and alleys on the plan shall remain open for the use of the public. The price paid for a lot is enhanced by the value of the easement in the streets and alleys appurtenant to the lot. The consideration is not only for the lot but for the easement as well. The proprietor of the plan therefore cannot revoke the implied easement and dedication; nor can the owner of any lot or lots having purchased with a knowledge of the plan in accordance with which the lots were sold, obstruct or deny to the public the right to use any of the streets or alleys shown on the plan. The easement over the streets is appurtenant to every lot and becomes a property interest in the purchase of the lot which may be protected by appropriate legal process.” O’Donnell v. Pittsburgh, 234 Pa. 401, 410, 83 A. 314, 317 (1912); Reed v. Reese, 473 Pa. 321, 331, 374 A.2d 665, 669-70 (1976).

In deciding the matter before us, we are mindful of the pronouncement of Chief Justice Jones, in Moyerman v. Glanzberg, 391 Pa. 387, 393, 138 A.2d 681, 684-85 (1958):

“In Kern v. Greensweig, 125 Pa. Superior Ct. 430, 436, 190 A. 182, the Court stated: “ 'An injunction is not a right and the chancellor is not bound to make a decree which will do far more mischief and work greater injury than the loss he is asked to redress.’ ‘A suitor must not only appear in a court of equity with clean hands, but he must come with reasonable promptness, in good faith, and with a just and equitable demand____ If an injunction is prayed for where upon a consideration of the whole case it ought not in good conscience to issue, a mere legal right in the plaintiff will not move the chancellor’: Power’s Appeal, 125 Pa. 175, 186, 17 A. 254.” See also: Baugh v. Bergdoll, 227 Pa. 420, 422, 76 A. 207. Upon that doctrine the lower court placed reliance, holding that the granting of an injunction in this case which would compel appellee to tear down a portion of a completely constructed dwelling would be creative of more harm to the appellee than of benefit to appellants. With that determination we are in agreement.
However, despite that doctrine, the Court below would have no choice but to grant the injunction if it had found that the appellee had deliberately and wilfully built upon the appellants’ property or if it believed that he had intentionally taken a chance. This rule was well stated in Ventresca v. Ventresca, 182 Pa. Superior Ct. 248, 253, 126 A.2d 515, wherein it was said: “Where the defendant’s act is tortious or in bad faith, or where he intentionally takes a chance, injunctive relief should be granted:” See also Kanefsky v. Dratch Construction Co., 376 Pa. 188, 196, 101 A.2d 923; Baugh v. Bergdoll, supra; Bright v. Allan, 203 Pa. 394, 53 A. 251.”

Appellants contend that the law applicable to the present case is that contained in First Federal Savings and Loan Association of Lancaster v. Swift, 457 Pa. 206, 213, 321 A.2d 895, 898 (1974), wherein our Supreme Court stated, “[Cjourts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised.”

However, a further proposition of the law relating to easement encroachment litigation is that, “[A]n injunction is not a right and the chancellor is not bound to make a decree which will do far more mischief and work greater injury than the loss he is asked to redress.” Kern v. Greensweig, 125 Pa.Super. at 436, 190 A. at 185. Also, regarding easement encroachments our Court has stated:

“The lower court refused injunctive relief because it felt that it must balance the equities in each case and deny it if, in its opinion, to grant it would cause more harm than good. If there were any facts or circumstances in this case to excuse the wilful violation of the deed restriction by the defendants we would readily agree. We have searched the record and can find none.
% Hi % sH sH H*
Where the defendant’s act is tortious or in bad faith or where he intentionally takes a chance, injunctive relief should be granted.” Ventresea v. Ventresca, 182 Pa.Super. 248, 253, 126 A.2d 515, 517-18 (1956).

Therefore, we must now examine the record to determine whether the chancellor’s findings are supported by the evidence and the applicable law.

It is to be noted that throughout the hearing in this matter, appellees’ 8.15 feet encroachment onto the unopened portion of Ochre Street was agreed by all parties to be an unintentional mistake. This can best be seen by the following discourse between the lower court and counsel:

THE COURT: I think that we all can conclude at this moment that, from the testimony that’s been given and from the assertion on the part of Counsel, there’s no contention here—and I certainly couldn’t find, under the evidence, that there was any intentional violation of the covenant in the deed on the part of Doctor Katz.—that what he did, he did innocently; not overlooking the fact that maybe he can’t escape the responsibility for failing to have it surveyed, which is the argument of the plaintiffs.—and I am not passing on that at this point. Have I stated the position pretty correctly?
MR. McCREADY: (Appellants’ Trial Counsel) I think so, Your Honor.

We, as the court below, find that the record does not sustain a finding that the encroachment onto the unopened portion of Ochre Street resulted from either a negligent or a chance taking act on the part of appellees. We find that in the construction of their dwelling they had no reason to know that a portion of the garage was encroaching onto Ochre Street. According to the undisputed testimony of Mr. Katz, at the time of purchase he was advised by his attorney and by the Developer that several surveys of the property had previously been made and that an additional survey was unnecessary. They pointed out to him the surveyor’s pins marking the corners of the lots. In addition, according to Mr. Katz and corroborated by his witness, a Mrs. Barry, his neighbor to the south, showed him the same pins dividing their properties stating they were placed there by her surveyor in 1967. Mr. Katz further testified that it was impossible to tell from observation that the attached garage was encroaching onto Ochre Street since he found no other pins and the area to the east, to the north and west was a wooded area covered with trees and brush, with no identifying street boundary markings of any kind.

Unlike Ventresca, supra, wherein the plaintiff as soon as construction on a garage was started objected and advised the defendant that he was violating the deed restriction, and, Peters v. Davis, 426 Pa. 231, 231 A.2d 748 (1967), wherein the plaintiffs, through their counsel, notified the defendant prior to completion of the construction of the defendants’ dwelling that the dwelling was in violation of the plaintiffs’ easement rights, in the present case, appellees’ encroachment was not discovered until a year following completion of appellees’ garage, when the Borough’s engineer, while surveying the intersection of North 6th and Ochre Streets, determined the encroachment. Also, it must be noted that not one of the appellants discovered the encroachment until Mr. Hunsicker learned of it upon becoming a councilman for Lehighton Borough in 1978; eight years following construction of the garage.

As to the issue of whether granting the injunction would cause more harm than good, appellants do not seek to compel the removal of a part of appellees’ garage as a result of any obstacle it presents to their use of Ochre Street beyond North 6th Street. Ochre Street at the time of the lower court hearings, had never been used for pedestrian nor vehicular travel and had been impassible due to the natural growth of trees, brush, and shrubbery as well as the condition of the terrain.

Also, unless the municipality at some future time opens Ochre Street beyond North 6th Street, it will remain in its impassible state and unused whether or not appellants receive a mandatory injunction. Appellants, in seeking the removal of the encroaching part of the garage, offered no testimony indicating any use they intend to make of Ochre Street or how they would be benefited by such removal. The width of Ochre Street subject to the easement, with the encroachment of the garage leaves a traversable width of 32.85 feet which is .15 feet less than the traversable width of Ochre Street, as opened by the Borough between 4th and 6th Streets. Moreover, no evidence was produced to demonstrate the effect such encroachment has on the value of appellants’ property. In contrast, the evidence presented to the lower court demonstrated that the cost to appellees of demolishing their garage, repairing their house after demolition, and the loss of the fair market value of their house due to the demolition would be in excess of nine thousand ($9,000.00) dollars.

Therefore, we conclude, that appellees’ encroachment was the result of an unintentional mistake and the granting of the requested injunction would cause more harm to the appellees than it would benefit appellants. The lower court correctly denied appellants request for a mandatory injunction.

Order affirmed.

      . King Alley lies between North 6th and North 7th Streets.


author: BROSKY, Judge: BECK, Judge,

text:
    456 A.2d 580
    Re Petition of the DAILY ITEM Appeal of DAILY ITEM, William C. Saylor.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1981.
    Filed Feb. 11, 1983.
    Leonard R. Apfelbaum, Sunbury, for appellant.
    Charles J. Ax, Jr., Middleburg, for participating party.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

On December 20, 1979, a preliminary hearing was held before a District Justice to determine whether Robert E. Dock should be tried on criminal homicide charges. The District Justice denied the public access to the hearing and refused to provide the press with a copy of the hearing transcript. Appellant then filed a Petition with the lower court seeking access to a record of the proceedings. The court upheld the District Justice’s exclusion of the public from the hearing and denial of transcript.

During the oral arguments presented to us, we were informed that the trial in this case has already been concluded. Normally, we would treat appellant’s appeal as moot and dismiss it. However, we may decide cases with substantial questions, otherwise moot, which are capable of repetition unless settled. See McKeesport Area School District v. Collins, 55 Pa.Cmwlth. 548, 423 A.2d 1112 (1980), Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 59, 373 A.2d 748, 750 (1977). Finding this situation to be one likely to recur, we will address the merits of the appeal. We reverse.

The lower court explained its denial of the petition in an opinion which concluded as follows:

In these circumstances, it is clear that the hearing before the District Justice to which petitioner sought admission and for which it requests a transcript was in part a preliminary or prefatory stage of the criminal justice proceedings to which it had no constitutional guarantee of admission, thus no constitutional right to the transcript. (Page 10 of Opinion.)

We are unable to state, as the lower court has, that the public has no right of access to preliminary proceedings.

In Gannett Company, Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the Supreme Court was faced with the question of whether members of the public have an independent constitutional right to insist upon access to a pretrial judicial proceeding. The court held that no such right is given by the Sixth or Fourteenth Amendments, but reserved decision as to whether it is found in the First Amendment. The Court did say, however, that even if such a right does exist, there are circumstances in which it is outweighed by a defendant’s right to a fair trial. The court found the closure of the courtroom by the trial court to be permissible because

... the closure decision was based “on an assessment of the competing societal interests involved ... rather than on any determination that First Amendment freedoms were not implicated.” Id. at 393, 99 S.Ct. at 2912.

Similarly, appellee argues that the Pennsylvania Constitution’s provision that “all courts shall be open” found in Art. 1 § 11, does not apply to this case because the District Justice proceeding is not a court proceeding. We do not agree. When the proceedings before a District Justice are criminal in nature, as was this hearing, they are treated as court proceedings. See 18 Pa.C.S.A. § 103.

In Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), the Pennsylvania Supreme Court held that closure of a pretrial proceeding may not be ordered where some other procedural device can fully protect the defendant’s right to a fair trial. In Hayes, the proceeding in question was a pretrial suppression hearing scheduled to be held immediately prior to trial.

In reaching its decision, the court discussed the Gannett case at great length concluding that while Gannett does not decide whether there is a constitutionally based right of access to pretrial proceedings, that decision does provide justification for limiting the use of closure. The Court wrote:

It is thus readily apparent that where a less restrictive alternative is available for assuring the fair trial guarantee and the use of that alternative does not unduly burden the expeditious disposition of the cause, all of the views expressed by the members of the Gannett Court would have no serious disagreement with a requirement that the alternative procedure should be opted for in preference to' closure. Id., 489 Pa. at 426, 414 A.2d at 321.

Our Supreme Court then found that under the facts of the Hayes case, a less restrictive alternative was available. All parties had agreed that since the suppression hearing was to immediately precede the trial, sequestration of jurors would protect the defendant’s right to a fair trial.

Unlike the Hayes court, we cannot determine on the record before us, whether closure was justified. What we have determined, however, is that the trial court erred in failing to consider the public’s right of access to this proceeding.

The Hayes court indicated that whether that right is of constitutional dimension was not critical to its decision. See Hayes, supra, 489 Pa. at 425, 414 A.2d at 321. In fact, the court did not state whether the right it enforced was based on either the Federal or Pennsylvania Constitution. It did, though, find such a right as to pretrial proceedings.

Certainly, the facts of the present appeal are different than those of Hayes. The preliminary hearing, held to determine whether the defendant should be tried at all, is not held immediately before trial. Sequestration of jurors would not provide an effective alternative means. It may well be that there was no other way to protect the defendant’s right to a fair trial, but the question should have been considered.

Order reversed.

McEWEN, J. concurred in the result.

BECK, J. files a concurring opinion.

BECK, Judge,

concurring:

This case originated when the press was excluded from a preliminary hearing on a homicide charge. The defendant requested that the press and public be excluded. The presiding District Magistrate consented and closed the proceedings. Appellant newspaper petitioned the lower court for an order opening the proceedings and granting access to transcripts. Its petition was denied and the newspaper appeals.

The trial of the criminal case involved has now been concluded and the record of all proceedings has been filed of public record. It is well established that an appeal may be taken from such a closure order even when the proceedings from which the public was excluded are completed, and transcripts made available. A controversy is not moot “ ‘if the underlying dispute is one ‘capable of repetition yet evading review.’ ... [because] ‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911) and Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975). Those conditions are met in this case.

This case, presenting the question of whether the public and press have a right of access to criminal preliminary hearings independently of the defendant himself, is one of first impression in this court.

I agree with the majority and would hold that the public and the press have a limited right of access to this adjudicative criminal proceeding which the court below failed to consider. I write this concurring opinion to explain fully my reasoning.

The right is based on the Pennsylvania Constitution and the Constitution of the United States. As to the Pennsylvania Constitution, the right is founded on portions of the Declaration of Rights which is Article One of the Pennsylvania Constitution. Two sections of Article One are implicated: section 11 which refers to open courts and section 7 which refers to free press and examination of public proceedings. As to the United States Constitution, the right is supported by the First Amendment.

The court below recognized a public right of access to a criminal trial but declined to find the same right to a preliminary hearing. I disagree. The history, purposes, and function of the preliminary hearing place that proceeding squarely within the ambit of the criminal adjudicatory process subject to the American judicial tradition of openness.

Press access to preliminary hearings has not been specifically addressed by the Commonwealth’s appellate courts or by the Courts in the Third Circuit or the United States Supreme Court.

Both the Pennsylvania and the United States Supreme Courts have thus far recognized a public right of access to criminal trials and to pretrial suppression hearings although not to preliminary hearings. Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co., Inc. v. DePasquale; Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), cert. denied, Hayes v. Pennsylvania, 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877. Pennsylvania case law does not provide a clear basis for the conclusion that the public has a right to access to preliminary hearings. Indeed even where it has found existence of a right of access in the context of suppression hearings there has been no agreement as to the foundation for that right. See Commonwealth v. Hayes; Philadelphia Newspapers, Inc. v. Jerome. However, recent federal cases decided after the relevant Pennsylvania decisions have sharpened the issue and clarified the federal constitutional rights implicated in the question of access. Globe Newspaper Co.; U.S. v. Criden, Appeal of Philadelphia Newspapers, Inc., 675 F.2d 550 (3rd Cir.1982).

I first examine the role of the preliminary hearing in Pennsylvania.

I. The role of the preliminary hearing in Pennsylvania as an adjudicative criminal proceeding.

The preliminary hearing has a common law and statutory rather than a constitutional origin. Its history extends for a period of nearly 500 years in English criminal jurisprudence. Commonwealth v. Brabham, 225 Pa.Super. 331, 309 A.2d 824 (1973); Commonwealth v. O'Brien, 181 Pa.Super. 382, 124 A.2d 666 (1956), appeal dismissed, Commonwealth v. Laughlin, 389 Pa. 109, 132 A.2d 265 (1957), overruled on other grounds, Commonwealth v. Brabham; Gannett v. DePasquale, 443 U.S. at 387 n. 17, 99 S.Ct. at 2909 n. 17. Early English laws required judicial review of the charges against an accused person soon after his arrest to protect the public against indiscriminate release of prisoners on bail, and also to protect the accused from being held on evidence that did not adequately support the charge against him.

Pennsylvania first enacted a statute providing for preliminary hearings in 1915. Act of May 14, 1915, P.L. 499, 42 P.S. § 1080 as cited in Brabham. Interpreting this statute, the Pennsylvania Supreme Court declared that a preliminary hearing is a “positive legal right” of an accused. Commonwealth v. Hoffman, 396 Pa. 491, 497, 152 A.2d 726, 729 (1959). The major changes in Pennsylvania law since 1915 have been to expand the right to a preliminary hearing to categories of crime not included in the original 1915 statute and to defendants already incarcerated. Commonwealth v. Brabham.

In contrast to the early English law, the primary purpose of preliminary hearings in the modern view is to prevent unlawful detention. Commonwealth v. Hailey, 470 Pa. 488, 368 A.2d 1261 (1977); United States v. Gray, 87 F.Supp. 436 (D.Colo.1949). The preliminary hearing involves the question of whether the evidence is legally sufficient to detain the accused and the question of whether the accused is entitled to be at liberty.

The public as well as the defendant has an interest in the preliminary hearing because it is a vital and integral part of the criminal adjudicative process. The public’s interest in the proceeding derives from its fundamental interest in the proper administration of justice. As the Hayes court stated: “Our strong constitutional requirement of public access to judicial proceedings emphasizes that publicity is ‘of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business.’ ” Commonwealth v. Hayes, 489 Pa. at 449, 414 A.2d at 333 (Justice Kauffman, concurring) (quoting Cox Broadcasting Corp. v. Cohen, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975)).

In this appeal the question is raised whether the preliminary hearings take place in “courts” exercising judicial authority. The magistrates, municipal court judges, and district judges who adjudicate preliminary hearings are designated by the Pennsylvania Constitution as part of the Commonwealth’s “unified judicial system,” exercising the “judicial power of the Commonwealth” Pa. Const., Art. 5, sec. I. The Legislature enacted into law this constitutionally-mandated system in the Judicial Code. 42 Pa.C.S.A. § 301. It is clear that for purposes of press access district justices exercising criminal jurisdiction are “courts”. 18 Pa.C.S.A. § 103.

Furthermore, the preliminary hearing is considered a “critical” stage of the criminal process at which a defendant has a right to counsel. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Judicial responsibility and procedure for preliminary hearings are set out in Rules of Criminal Procedure 141 et seq. Clearly, the preliminary hearing is a part of the judicial process.

Lastly, there are practical reasons which support access of the public to preliminary hearings. In Commonwealth v. Knight, 469 Pa. 57, 68, 364 A.2d 902, 908 (1976), the Pennsylvania Supreme Court noted the press can be “helpful in reporting matters to the public generally so that persons having knowledge of the events might voluntarily come forward and testify.” This objective surely has application to the preliminary stage of a prosecution.

In the American system the tradition of public access ordinarily applies to every aspect of the criminal adjudicative process. This long standing tradition has been a bulwark of a free society, preventing secret proceedings which, if permitted, could ultimately erode individual rights and seriously undermine democratic principles.

II. The basis for the public right of access to pretrial criminal proceedings in the Constitution of Pennsylvania

After careful study of the history and judicial interpretation of the Declaration of Rights (Article One) of the Pennsylvania Constitution, I conclude that the public right of access to criminal proceedings is firmly predicated on two sections of Article One of the Pennsylvania Constitution: section 11 (open courts), and section 7 (free press and examination of public proceedings).

A. Article 1, Section 11: “open courts”

The “open courts” provision is part of Article 1, section 11 of the Pennsylvania Constitution. It provides:

Article 1: That the general, great, and essential principles of liberty and free government may be recognized and unalterably established, WE DECLARE THAT
* * * * * #
Section 11: All courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have a remedy by due process of law, and right and justice administered without sale, denial or delay.

This declaration of the availability of courts to the public has no precise counterpart in the federal constitution. It has been part of the Pennsylvania Constitution since 1776, and, in fact, a part of the fundamental law of the colonial Province of Pennsylvania since 1682.

In the phrase “the courts shall be open” the word “open” has two apparent possible meanings. First, it plainly means that the Commonwealth courts are available to all cases recognized as legal injury by modern courts. Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975).

Second, it may also mean that the courts are physically open to the public. Some lower court Pennsylvania cases support such an interpretation. Commonwealth v. Klinger, 75 Pa.D. & C.2d 664 (Perry Co., 1976) (defendant cannot exclude the press from a preliminary hearing); Declamp v. Hover, 57 Berks 17 (1965) (defendant in a civil negligence action has the right to a public trial). See also Commonwealth v. Hayes, (concurring opinions of Justices Kauffman, Larsen, and Flaherty.)

That the first meaning may appear more often suggests that the issue of jurisdictional availability of state courts arises more frequently, but does not foreclose the additional meaning. And, in fact, as one early Pennsylvania case states, concerning a court officer’s refusing an attorney admission to a courtroom, the two meanings share common ground. All who have lawful business with the courts have a right to physical “ingress and egress” and these persons include the public, as well as attorneys, witnesses, and parties, because of their interest “in the public administration of justice.” 30 Pittsburgh Reports 362 (1883).

The interpretation of the open courts provision to mean that the courts shall be open to the public was underscored by the Superior Court in Commonwealth ex rel. Paylor v. Cavell, 185 Pa.Super. 176, 181-182, 138 A.2d 246, 248-249 (1958) (footnote omitted), cert. denied, 358 U.S. 854, 79 S.Ct. 84, 3 L.Ed.2d 888 (1958):

The Supreme Court of the United States had occasion to thoroughly discuss the nature and historical background of the right to a public trial in Re Oliver, supra, [333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948)]. See, also, Com. v. Trinkle, 279 Pa. 564, 568, 124 A. 191; People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769. The origin of the guarantee is not clear. “The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty.” Re Oliver, supra, 333 U.S. 257, 268, 269, 68 S.Ct. 499, 505, 92 L.Ed. 682, 691, 692. Public trials became a part of our legal system at the inception of the Colony. William Penn’s Code of Laws of 1682, in the Frame of the Government, provided: “Fifth. That all courts shall be open, and justice shall neither be sold, denied or delayed.” The Pennsylvania Constitution of 1776 was the first to include the guarantee to an accused of the right to a public trial. “The provisions of the Constitution were no doubt incorporated into that document because of the abuse in early times of an accused’s right to a fair trial. This was at a time when a defendant was subjected to a strictly private trial, or star-chamber proceeding, convicted on statements not deserving the name of evidence, ofttimes through the caprice of the ruling monarch. It was determined, when our Constitution was written, this abuse should not be present in our system of jurisprudence. It was thought the presence of the public generally would constrain a court, otherwise predisposed, to accord the witness (sic) a fair trial. Convictions by secret trials were therefore abolished. Public trials, with public records, were introduced, and our Constitution perpetuates this practice; ...” Com. v. Trinkle, supra, 279 Pa. 564, 568, 124 A.2d 191, 192.

B. Article 1, section 7: Freedom of the press to examine the proceedings of government

Secondly, the Pennsylvania Constitution explicitly guarantees freedom of the “printing press ... to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof...” Pa. Const., art. 1, sec. 7. This provision parallels the First Amendment of the U.S. Constitution. McMullan v. Wohlegemuth, 453 Pa. 147, 308 A.2d 888 (1973), appeal dismissed, 415 U.S. 970, 94 S.Ct. 1547, 39 L.Ed.2d 863 (1974); Taylor and Selby Appeals, 412 Pa. 32, 193 A.2d 181 (1963). The Pennsylvania Supreme Court has recognized that “a right to gather news of some dimensions must exist if the First Amendment is to have realistic vitality.” McMullan, 453 Pa. at 162, 308 A.2d at 896. Such a right was held to exist although like all aspects of the First Amendment, it is not unlimited and must be balanced against other Constitutional rights.

In the McMullan case, the press’ right of access to information was balanced against the right of privacy of welfare recipients whose names and addresses were sought by a reporter. McMullan, 453 Pa. at 163, 308 A.2d 888. See also McLaughlin v. PNI, 465 Pa. 104, 348 A.2d 376 (1975).

While Article 1, sections 11 and 7 lay a foundation for press access, such right is not absolute and must be balanced by other countervailing interests.

III. Federal Constitutional basis for the public right of access to pretrial criminal proceedings.

The United States Supreme Court has held that there is a First Amendment right of access by the press to a criminal trial. Globe Newspaper Co. v. Superior Court for the County of Norfolk; Richmond Newspapers, Inc., v. Virginia. While access to criminal trials is a right that is not “unambiguously enumerated in the very terms of the Amendment”, it is “nonetheless necessary to the enjoyment of other First Amendment rights”, including “the free discussion of governmental affairs.” Globe Newspapers, 457 U.S. at 604, 102 S.Ct. at 2619, 73 L.Ed.2d at 255. Access to criminal trials in particular is protected by the First Amendment because of the historic tradition of such access, and also because of the important role of “public scrutiny” to the “quality” and “integrity” of the criminal adjudicative process. Globe Newspapers, 457 U.S. at 605, 606, 102 S.Ct. at 2619, 73 L.Ed.2d at 256.

Although the Court has acknowledged an “independent” “important societal interest” in access to pretrial suppression hearings, it has not ruled that any specific Constitutional provision forms a specific Constitutional guarantee of access in a pretrial context. The Court has ruled that the Sixth Amendment does not provide such a guarantee. Gannett Co., Inc. v. DePasquale; Richmond Newspapers. Cf. U.S. v. Cianfrani, 573 F.2d 835 (3rd Cir.1978).

However, the United States Court of Appeals for the Third Circuit in U.S. v. Criden, Appeal of Philadelphia Newspapers, Inc. decided that the press was entitled to access to pretrial proceedings on due process issues. It held that in the pretrial context the First Amendment protected the press’ right of access. In Criden, the federal district judge convened a hearing in chambers on suppression and due process motions concerning the controversial investigative methods used by the government in the political corruption cases known as the Abscam cases. Philadelphia Newspapers, Inc., publisher of the Philadelphia Inquirer and the Philadelphia Daily News, appeared and argued for access to those hearings. The trial court closed the hearings, however, because “the subject of the hearings involved ‘matters, the pretrial disclosure of which would inevitably impair or destroy the rights of both the Government and the defendant to a fair trial before an impartial tribunal.’ ” 675 F.2d at 552. On appeal, the court held that “the public has a first amendment right of access to pretrial suppression, due process, and entrapment hearings.” Id. at 554. An understanding of the meaning of the First Amendment “interpreted in the light of current values and conditions,” id. at 555, led to this conclusion because of the enormously increased contemporary importance of pretrial proceedings to criminal adjudications. The purpose of the First Amendment is to protect the free exchange of ideas, and therefore access and a right to receive information is an integral part of the amendment’s guarantee of freedom of speech.

I believe that the reasoning of Criden is persuasive as to the existence of a First Amendment right of access to suppression, due process and entrapment hearings and that this reasoning also applies to a preliminary hearing in Pennsylvania. Access

... promotes informed discussion of governmental affairs by providing the public with a more complete understanding of the judicial system. See [Richmond Newspapers] at 572 (plurality opinion); id. at 584 (Stevens, J., concurring); id. at 596-96 (Brennan, J., concurring in the judgment) ... serve[s] an important “educative” interest. See id. at 572 (plurality opinion)____gives “the assurance that the proceedings were conducted fairly to all concerned” and promotes the public “perception of fairness.” Id. at 569, 570 (plurality opinion).....Id. at 595 (Brennan, J., concurring ...) has a “significant community therapeutic value” because it provides an “outlet for community concern, hostility, and emotion.” Id. at 570-71 (plurality opinion)____serves as a check on corrupt practices by exposing the judicial process to public scrutiny, thus discouraging decisions based on secret bias or partiality. See id. at 569 (plurality opinion)____enhances the performance of all involved. See id. at 569 n. 7 (plurality opinion).....[and] discourages perjury. See id. at 596-97 (Brennan, J., concurring in the judgment).

Criden, 675 F.2d at 556.

IV. How to balance the rights of the press and the rights of a defendant when a defendant requests closure of a pretrial criminal proceeding

A defendant is constitutionally entitled to a fair trial (Sixth Amendment, U.S. Constitution; Pa. Const. Art. 1, sec. 9; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). What justification must a defendant show to obtain a closure order and what procedure must be provided to protect the rights of members of the public or of news organizations who object to closure? To answer, one must appreciate the reason the press/court controversies arise. On the one hand the press has an interest and a limited right to report on every phase of the adjudicatory process. On the other hand, the defendant has a right to an impartial jury. Pretrial publicity can, in rare cases, so bias members of the community from which the jury is drawn that it may be difficult to pick an impartial jury.

Since an already assembled jury can, if necessary, be sequestered to prevent exposure to prejudicial publicity, there is minimal need to request closure of the trial itself for this reason. Therefore, most requests for closure of a criminal proceeding to protect the jury’s impartiality are made in the pretrial hearing context.

I would hold that a defendant who requests closure must show at least a “serious threat” to his right of a fair trial. Jerome; Hayes. “Serious” means “such as to cause considerable distress, anxiety, or inconvenience; attended with danger”. Webster’s Third New International Dictionary at 2076 (1976). The danger to defendant’s fair trial rights should be likely and immediate. This “serious threat” standard was developed in the suppression hearing context in Hayes and Jerome. In those cases the defendants were concerned about highly inculpatory evidence to which the jury venire might be exposed. The defendants argued that jurors aware of this evidence could not act impartially in the event that such evidence was suppressed.

The American Bar Association proposal on access to pretrial proceedings provides another formulation of this standard framed in language different from that of the Pennsylvania Supreme Court. The ABA recommends that pretrial proceedings be open to the public and closed only if the dissemination of information from such proceeding would create a “clear and present danger” to fair trial rights. American Bar Association Standards Relating to the Administration of Justice: Fair Trial and Free Press, Standard 8-3.2 (2d Ed. 1980) (“ABA Standards”).

Once a court finds that publicity resulting from a preliminary hearing may potentially present a serious threat to a fair trial, the judge shall take the following steps before closing the preliminary hearing:

First, he shall consider alternative means to protect the fair trial rights of the defendant. If a means other than closure is available which will effectively and practically prevent the expected prejudice to defendant, it must be preferred. Commonwealth v. Hayes; Philadelphia Newspapers Inc. v. Jerome; U.S. v. Criden; ABA Standards.

Second, before a preliminary hearing can be closed to the public, closure must be found likely to be effective in preventing the prejudicial pretrial publicity that is feared. Thus, if the prejudicial evidence sought to be kept from the public has already become known, closure might not be justified. Commonwealth v. Hayes (Kauffman, J., concurring).

Third, the reasons for closure, reviewing the substantive factors discussed above and the alternatives considered must be articulated by the court for record. Common wealth v. Hayes (Kauffman, J., concurring); U.S. v. Criden.

Conclusion

For all these reasons, I would specifically hold that news organizations and the public have a constitutional right to attend criminal preliminary hearings. The right is founded upon the Pennsylvania Constitution, Article 1, section 7, establishing the right of a free press to examine public proceedings, and section 11, declaring that all courts shall be open. The right is further supported by the First Amendment to the United States Constitution.

American courts have an outstanding tradition of openness to the public. Only in recent years has their record been matched by other branches of government that have enacted or adopted “sunshine” or “right to know” or “freedom of information” laws opening other governmental activity to the enquiring public. This growing American tradition in which governmental power is exercised openly and subjected to critical inspection is one of which we can justly be proud. We are all too familiar with the results of unchecked authoritarian power of governments over their citizens without such a tradition.

Professional information-gatherers play a crucial role in keeping the public informed in our complex society. “The press is the necessary representative of the public’s interest in this context and the instrumentality which effects the public’s right.” Saxbe v. Washington Post Co., 417 U.S. 843, 864, 94 S.Ct. 2811, 2822, 41 L.Ed.2d 514 (1974) (Powell, J., dissenting), quoted approvingly in Herbert v. Lando, 441 U.S. 153, 189, 99 S.Ct. 1635, 1655, 60 L.Ed.2d 115 (1979) (Brennan, J., dissenting). This role of the press has been explicitly protected in Pennsylvania since its earliest Constitution declared that “the printing press shall be free to every person who may undertake to examine the proceedings of ... any branch of government.” Pa. Const. Art. 1, sec. 7.

In light of the importance of this tradition, a request to close a judicial proceeding to the public or press should be granted only with the gravest of reservations.

      . But see Chief Justice Burger’s and Justice Rehnquist’s separate concurring opinions in which they express the view that no public right of access exists as to pretrial proceedings.

      . In Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), our Supreme Court interpreted this provision as providing no greater right of access to the public than is found in the public trial provisions of our state and Federal Constitutions. The Court did conclude its constitutional discussion in that case by finding that closure of the pretrial suppression hearing may be limited where there is an effective and efficient alternative means to assure the accused's fair trial rights. Id., 489 Pa. at 427, 414 A.2d at 322.

      . Appellant has also raised the issue of public right to access to records of court proceedings. The records are clearly as public as are the proceedings.

        . With regard to the complementary role of the defendant’s right to a public trial, Pa. Const. Art. 1, sec. 9, see footnote 9 infra.

      . Previously, the Commonwealth relied on adopted English law on this subject, with the same result. Commonwealth v. O'Brien, 181 Pa.Super. 382, 124 A.2d 666 (1956).

      . “The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, the Superior Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in the City of Philadelphia, such other courts as may be provided by law and justices of the peace. All courts and justices of the peace and their jurisdiction shall be in this unified judicial system." Pa. Const., Art. 5, sec. 1. A similar provision appeared in prior Constitutions; see historical note to Purdon’s Pennsylvania Constitution.

      . “The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the:
      (1) Supreme Court.
      (2) Superior Court.
      (3) Commonwealth Court.
      (4) Courts of common pleas.
      (5) Community courts.
      (6) Philadelphia Municipal Court.
      (7) Pittsburgh Magistrates Court.
      (8) Traffic Court of Philadelphia.
      (9) District justices.
      All courts and district justices and their jurisdiction shall be in this Unified judicial system.” 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.

      . “ ‘Court.’ Includes (when exercising criminal or quasi-criminal jurisdiction pursuant to 42 Pa.C.S. § 1515 (relating to jurisdiction and venue)) a district justice.” 18 Pa.C.S.A. § 103.

      . It is irrelevant that some cases declare a preliminary hearing not a “trial” for the purpose of determining whether an accused has been twice put in jeopardy if a second preliminary hearing is held, Commonwealth v. Flanders, 247 Pa.Super. 41, 371 A.2d 1316 (1977), overruled on other grounds, Commonwealth v. Scott, 279 Pa.Super. 8, 420 A.2d 717 (1980), or that some courts approve an indictment issued without a prior preliminary hearing. Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661 (1977). The public interest and rights that are before us in this matter are not diminished by these other characteristics of the preliminary hearing.

      . The language "all courts shall be open” was set forth in the first constitution of Pennsylvania in 1776, in Section the Twenty-sixth of the Frame of Government, which set forth the structure of the Commonwealth government, including the judicial system.
      "Courts of sessions, common pleas, and orphans court shall be held quarterly in each city and county; and the legislature shall have the power to establish such other courts as they may judge for the good of the inhabitants of the state. All courts shall be open, and justice shall be impartially administered without corruption or unnecessary delay: All their officers shall be paid an adequate but moderate compensation for their services...”
      The open courts phrase is derived from the “Laws Agreed upon in England” drawn up by William Penn in 1682, section 5 of which read: “All courts shall be open, and justice shall neither be sold, denied, or delayed." The provision is today Article 1, section 11. See T.R. White, Commentaries on the Constitution of Pennsylvania, (1907) at 159-161.

      . Paylor concerned a defendant’s right to a public trial. Article 1, section 9, of the Constitution of Pennsylvania, paralleling the Sixth Amendment to the U.S. Constitution, provides that “in all criminal prosecutions, the accused hath a right ... to have ... a speedy public trial...” This right is personal to the defendant and may be waived. Id., 185 Pa.Superior at 183, 138 A.2d at 249. While a criminal defendant’s own right to a public trial is not, alone, a source of the public's right of access, the reasons for the two rights are intimately intertwined. An interest in the administration of justice in criminal matters is a legitimate concern of all citizens. (Indeed, the prosecution—the “Commonwealth”—acts for the citizens.) The Paylor court also cited Article 1, section 11 as a source of the defendant’s right to a public trial. Id., 185 Pa.Superior at 180 n. 3, 138 A.2d at 248 n. 3.
      Thus, Pennsylvania courts have approved closing portions of criminal trials only when closure was strictly limited to valid purposes and limited in time and scope. See, e.g. Commonwealth v. Burton, 459 Pa. 550, 330 A.2d 833 (1974); Commonwealth v. Trinkle, 279 Pa. 564, 124 A. 191 (1924); Commonwealth v. Waiters, 233 Pa.Super. 83, 334 A.2d 731 (1975).

      . After noting that the Pennsylvania provision parallels the First Amendment of the U.S. Constitution, the McMullan court stated that the U.S. Supreme Court had never ruled on whether "newsgathering” was activity encompassed by the First Amendment. The court then discussed the issue as a "First Amendment” issue. State courts have frequently approached personal rights issues using language of federal law. Recently, however, in a trend that may be helpful in fully developing the meaning of state constitutions, state courts have turned to their own fundamental law independently of federal legal developments. See Developments in the Law—The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324 (1982).

      . Where the United States Supreme Court has not spoken definitively on a matter of federal constitutional law, the viewpoint of the Third Circuit Court of Appeals is not binding, on Pennsylvania courts. Where it is relied upon it is followed either as a sound judicial practice to avoid confusion, Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), or because the reasoning of the federal case is "well-considered" and merits deference, North Penn Consumer Discount Co. v. Shultz, 250 Pa.Super. 530, 378 A.2d 1275 (1977).

      . Just under two-thirds of the closure orders requested in the state and federal courts monitored by a journalists’ organization were in "pretrial" stages, as opposed to trial, posttrial, or preindictment. Court Watch Summary, The Reporters Committee For Freedom of the Press (Jan. 31, 1981).

      . I note that Justice Kauffman in his concurring opinion in Hayes suggested that a criminal defendant who wishes to close pretrial proceedings must show, inter alia, "that there is a substantial probability that irreparable damage to his fair trial right will result from conducting the proceeding in public.” Id. 489 Pa. at 451, 414 A.2d at 334.

      . Pa.R.Crim.P. 326 provides guidance as to available alternatives at trial which may also be applicable in the pretrial context.
      A court should also bear in mind that if pretrial publicity should ultimately prove sufficiently prejudicial, change of venue of the trial may provide a sufficient remedy.

      . See cases and materials collected in Wilder, All courts shall be open: The Public’s Right to View Judicial Proceedings and Records, 52 Temple L.Q. 311 (1979).


author: BROSKY, Judge:

text:
    456 A.2d 591
    COMMONWEALTH of Pennsylvania v. Robin RINEER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1982.
    Filed Feb. 11, 1983.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Richard A. Sheetz, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   BROSKY, Judge:

This is an appeal from judgment of sentence for arson. Appellant contends that: (1) the evidence was insufficient to support the verdict; (2) the trial court erred in denying appellant’s motion to quash the information; (3) the trial court erred in refusing in part appellant’s request for pre-trial discovery; and (4) the trial court erred in refusing one of appellant’s points for charge. We do not agree with appellant and affirm the judgment of sentence.

On July 19, 1980, appellant was charged by information with the crime of arson. Appellant then filed an application to quash the information on the basis that the Commonwealth failed to prove a prima facie case at the preliminary hearing and also filed a request for pre-trial discovery. The application to quash was denied by the court without a hearing after it reviewed a tape recording of the preliminary hearing. Certain pre-trial discovery requests were also denied by order of court on July 29, 1980. The case proceeded to trial and appellant was found guilty as charged by a jury. Post-verdict motions were filed and denied and this appeal followed.

Appellant first contends that the evidence was insufficient to support the verdict. After a thorough and careful review of the record, we conclude that the opinion of the court below adequately disposes of this issue.

Appellant next contends that the trial court erred in denying a motion to quash the information because the Commonwealth’s evidence was insufficient to establish a prima facie case. We find this issue to be moot.

The Supreme Court of Pennsylvania has stated that:

If in fact it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation before the district justice would have been harmless____

Commonwealth v. Hess, 489 Pa. at 590, 414 A.2d at 1048.

In the instant case, appellant demurred to the evidence at trial and the demurrer was denied by the court below. The trial court thus determined that there was sufficient evidence for the case to be submitted to the jury. Therefore, even if it was error for the trial court to deny appellant’s motion to quash the information, the error was harmless. Appellant’s second contention is thus moot.

Appellant’s third contention is that it was error for the trial court to deny her request for the names and addresses of eyewitnesses, the names and addresses of the Commonwealth’s witnesses it intended to call at trial and the written or recorded statement of Keith Usner, a key prosecution witness. Appellant argues that she was entitled to this information under Pa.R.Crim.P. 305(B)(2) which provides as follows:

B. Disclosure by the Commonwealth
(2) Discretionary with the Court: In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
(a) the names and addresses of eyewitnesses;
(b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
(c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not;
(d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

We note initially that the court below did, in fact, grant appellant’s request for the names and addresses of eyewitnesses. In our consideration of the other items, we are guided by the rule that where disclosure is discretionary with the court, error will not be found where an appellant does not assert specific examples of possible prejudice before the lower court. Commonwealth v. Johnston, 258 Pa.Super. 429, 392 A.2d 869 (1978).

Appellant only asserted below that she needed the information to properly prepare her defense and that the lack of it could possibly cause surprise to her at trial. These are hardly specific examples of possible prejudice as required by Johnston. Moreover, on appeal we note that no specific type of prejudice is claimed to have resulted from the court’s ruling. See Johnston, supra. Therefore, we find no merit in this allegation of error.

As to the statement of Keith Usner, appellant asserted below that she needed the statement because the testimony at the preliminary hearing indicated that Usner could have been the person who committed the offense in question. On appeal, she has asserted that Usner’s testimony was inconsistent and contradicted that of other Commonwealth witnesses and that the defense would have been in a better position to challenge these inconsistencies if his statement had been made available. However, as the court below noted in denying this request, appellant had a tape recording of Usner’s statement at the preliminary hearing. Clearly, the court believed that this statement was sufficient for appellant to prepare for Usner’s testimony at trial. In light of the fact that appellant has not even addressed this point, let alone disputed it, we cannot find that the court erred in denying appellant’s request.

Appellant’s final contention is that the trial court erred in refusing to read appellant’s point for charge number three. We find as follows that this issue has been waived.

Pa.R.Crim.P. 1119(a) and (b) pertain to request for jury instructions and the charge to the jury and provides that:

(a) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. The trial judge shall charge the jury after the arguments are completed, and shall then rule on all written requests.
(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury-

In the instant case, appellant submitted written requests for instruction to the jury and the trial judge refused to read the point in question on the ground that it had been covered in the main body of the charge. After the charge was concluded, the trial judge asked if counsel had any additions or corrections; and appellant did not object to the court’s refusal to read point number three.

Although Rule 1119(b) would seem to indicate that the issue of the court’s refusal has been waived, the law has been unsettled on this point. One line of cases has held that where a point for charge is timely offered and rejected, there is no need for the party who has submitted the point to take further action at trial to preserve the issue. A seminal case in this line is Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877 (1975), in which the court explained its holding as follows:

The Commonwealth argues that because appellant took no exception to the trial court’s rejection of submitted points for charge, appellant may not now complain of the court’s error. It is true that we have long required that in order to preserve an error alleged to have been made in the trial court’s charge to the jury, a party must take a specific exception to the questionable portion of the charge. This requirement is reflected in Rule 1119(b) of the Pennsylvania Rules of Criminal Procedure (which speaks in terms of making objections as distinguished from taking exceptions: there is no difference). Pa.R. Cr.P. 1119(b), 19 P.S. (1975 Pamphlet); see and compare Pa.R.Cr.P. 1115, 19 P.S. (1975 Pamphlet); see Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Where, however, as here, a point for charge is timely offered and rejected, we have indicated there is no need for the party who has submitted the point to take further action at trial to preserve the issue; the trial judge has been fully alerted, and no purpose would be served by insisting on the formality of an exception to a refusal of one’s point. Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969). Cf. Pa.R.Cr.P. 1115(b), 19 P.S. (1975 Pamphlet). While in Sisak an exception was noted to the refusal of the point there involved, that fact was not a determinative aspect of the decision.

Williams, 463 Pa. at 373 n. 1, 344 A.2d at 879 n. 1. See Commonwealth v. Wilds, 240 Pa.Super. 278, 362 A.2d 273 (1976). In the most recent superior court decision dealing with this issue, Commonwealth v. Hastings, 301 Pa.Super. 65, 446 A.2d 1337 (1982), this court followed the holding of Williams.

However, a second line of cases has held that even where points for charge are offered and denied, a specific objection must be made after the charge to preserve the issue. In the last Pennsylvania Supreme Court case to address this issue, Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981), the court followed this line of cases.

Another case in this line, Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977), is very similar to the instant case. There, as here, appellant submitted points for charge and was given the opportunity to make corrections after the court finished its charge. There, as here, defense counsel made no objections, apparently finding the court’s instructions unobjectionable despite the refusal of requested instructions. The court held that the trial court’s refusal to give the points in question could not be raised on appeal. The court explained its holding as follows:

The reasons for requiring specific objection after the charge, even where points for charge had previously been proposed are apparent. Primarily it ensures that the court is given opportunity to avoid error. See Commonwealth v. Sisak, 436 Pa. 262, 269, 259 A.2d 428, 432 (1969). Here, as is so often the case, the court gave some of the requested instructions in modified form. Additional corrections might very well have avoided error.

Martinez, 475 Pa. at 337-8, 380 A.2d at 750-1.

In considering these two lines of cases, we are bound by the last Pennsylvania Supreme Court decision of Gallo way on this issue. Therefore, we hold that in order to preserve an issue regarding the charge to the jury, a specific objection must be made pursuant to Pa.R.Crim.P. 1119(b), even where jury instructions have been timely offered and refused. As noted in Martinez, this will absolutely ensure that the trial court is given an opportunity to avoid error.

Therefore, we find that appellant’s fourth claim has not been preserved for appeal and we will not reach its merits.

Judgment of sentence affirmed.

      . Since the court’s right to exercise jurisdiction over the person of the
      accused in a criminal case is dependent upon the Commonwealth’s ability to establish a prima facie case, see Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8, 10 (1978) (citing cases), appellant was in fact asserting an unlawful detention. Thus, regardless of the designation used by appellant, the true nature of the motion was a request for habeas corpus relief. Our precedent establishes that we will not dismiss a request for habeas corpus relief solely on the basis that the pleading raising the claim was incorrectly labeled, where the purport of the motion is evident. Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975).

        Commonwealth v. Hess, 489 Pa. 580, 584-5, 414 A.2d 1043, 1045 (1980).

      . But see, Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (plurality), allocatur denied (1979), reconsideration denied (1980).

      . This point reads as follows:
      A false or contradictory account of events by an accused is a circumstance which mitigates against him or her but is not sufficient alone to prove guilt. Commonwealth v. New, 354 Pa. 188, 47 A.2d 450 (1946).

      . We also note that we find the rationale for the Galloway line of cases, as expressed in Martinez, most persuasive.

      . In the instant case, the trial court stated that the refused point for charge was covered in the main body of the charge. An objection after the charge would have given the court an opportunity to correct any deficiency appellant found in the court’s modified form of her point for charge.

      . Until this time, none of the cases in either line have discussed the rationale nor even the existence of the opposite line of cases.


text:
    456 A.2d 595
    Eugene J. BROZZETTI and Carolyn L. Brozzetti v. HEMPT BROTHERS, INC. v. PADDOCK POOL BUILDERS, INC. Appeal of HEMPT BROTHERS, INC.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1981.
    Filed Feb. 11, 1983.
    Petition for Allowance of Appeal Denied Oct. 11, 1983.

      Thomas E. Brenner, Harrisburg, for appellant.
    John B. Mancke, Harrisburg, for appellees.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   BROSKY, Judge:

Appellee Paddock Pool Builders, Inc. was the employer of Eugene J. Brozzetti who was injured during the course of his employment. Mr. Brozzetti commenced this action to recover damages from appellant, Hempt Brothers, Inc., alleging that his injuries were caused by the negligence of one of Hempt Brothers’ employees. Hempt Brothers then joined Paddock Pool Brothers, Inc. as an additional defendant. The lower court granted preliminary objections filed by appellee and dismissed the complaint as to Paddock on the grounds that as Brozzetti’s employer Paddock was immune from joinder by virtue of Section 303(b) of the Pennsylvania Workmen’s Compensation Act. The sole issue for our review is whether, despite Section 303’s grant of immunity, employers can still be joined in order to apportion negligence in accordance with the Pennsylvania Comparative Negligence Act. Because we conclude that we must find such joinder impermissible, we affirm.

Section 303 of the Workmen’s Compensation Act provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in Section 301(c)(1) and (2) or occupational disease as defined in Section 108.
(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

In Heckendorn v. Consolidated Rail Corporation, 293 Pa.Super. 474, 439 A.2d 674, 675 (1981), we explained that this section has been interpreted by our courts as prohibiting a defendant whose negligence is alleged to be responsible for an injury suffered by an employee protected by the Workmen’s Compensation Act from joining the employer as an additional defendant. See also: Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980); cf. Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977).

As we noted in Arnold v. Borbonus, 257 Pa.Super. 110, 114, 390 A.2d 271, 273 (1978), “[T]he 1974 amendment to § 303(b) manifests a broad legislative intent to bar the joinder of an employer as an additional defendant.”

Appellant urges that this rule should not be applied where, as here, the original defendant seeks to join the employer for comparative negligence purposes. Appellant contends that the negligence of one of Paddock Pool’s employees contributed to the accident and that Paddock should be joined to facilitate an apportionment of the causal negligence among the defendants. The same issue was recently presented to our court in Kelly v. Carborundum, 307 Pa.Super. 361, 453 A.2d 624 (1982), in which we found such joinder impermissible.

We relied upon Heckendorn, supra, in our recent decision in Kelly and reaffirm our position today.

In reaching our conclusion in Kelly, supra, we rejected the argument, also made in this case, that injustice will result if only the third party remains a defendant, since he may have to pay more than his proportionate share of the loss. We said, “This argument is not persuasive. The law does not now and never has required that all possible tortfeasors be made parties to an action.” 307 Pa.Superior 367, 453 A.2d at 627-628. If an employer accepts the responsibility of paying workmen’s compensation benefits, his negligence is no longer a factor.

Similarly, we must reject appellant’s suggestion that we permit joinder of the employer as an involuntary plaintiff pursuant to Pa.Rule of Civil Procedure 2227.

In Kelly, we discussed this alternative and concluded,

To summarize, Pa.R.C.P. 2227 permits compulsory joinder of persons having a joint interest in the subject matter of an action and without whose joinder the action cannot substantively proceed. An employer has no direct interest in and is not an indispensable party to a common law tort action commenced by an employee against a third party. The compulsory joinder of an employer as an involuntary plaintiff in his employee’s third party action, therefore, is not procedurally authorized.
Joinder of the employer for purposes of determining fault, if any, is also improper substantively. It is barred by Section 303 of the Workmen’s Compensation Act as previously interpreted by both the Supreme and Superior Courts. (At n. 12.)[]

We must also reject the other arguments made by appellant.

Hempt contends that Section 303(b) violates the Equal Protection Clause of the Fourteenth Amendment. In Tsarnas, supra, our Supreme Court specifically denied such a challenge.

Hempt also argues that Section 303(b) violates Article III, Section 3 of the Pennsylvania Constitution which provides:

No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compelling the law or a part thereof.

The argument is that the title to the Workmen’s Compensation Act does not provide notice that the legislation affects third party rights to contribution or indemnity from the employer. We do not agree.

The bill was entitled in relevant part:

Amending the act of June 2, 1915 (P.L.-, No. 338), entitled, as amended, “An act defining the liability of an employer to pay damages for injuries received by an employee in the course of employment, ...

We believe it is clear that-the questions of contribution and indemnity fall under the above quoted topic.

Order affirmed.

      . Act of December 5, 1974, P.L. 782, No. 263; 77 P.S. § 481.

      . Act of April 28, 1978, P.L. 202, No. 53, § 10(89) as amended; 42 Pa.C.S.A. 7102.

      . But see Pennsylvania Supreme Court Review, 1980, 34 Temple Law Quarterly 729-741, (1981), in which the Hefferin and Tsarnas decisions are criticized. The article suggests that Section 303 need not and should not preclude joinder of employers for comparative negligence purposes.

      . We noted in Heckendom that a common pleas court has permitted the joinder of the employer as an involuntary plaintiff. However, we said that the negligence of an employer who accepts the responsibility of paying workmen’s compensation benefits, is no longer a factor. Given this holding, we cannot find the employer a proper party; certainly he is not "a person who must be joined as a plaintiff.”