author: JOHNSON, Judge:

text:
    487 A.2d 11
    Andree P. FENSTAMAKER v. Richard L. FENSTAMAKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1983.
    Filed Jan. 4, 1985.

      Lester L. Greevy, Jr., Williamsport, for appellant.
    Irwin M. Shur, Williamsport, for appellee.
    Before: SPAETH, President Judge, and CHULLO and JOHNSON, JJ.
   JOHNSON, Judge:

These consolidated appeals arise from four orders entered by the trial court, each holding appellant in contempt. The orders were issued during the course of a non-jury trial for divorce, equitable distribution, alimony and other relief.

The parties were married in August of 1959 and separated in August of 1976. Since sometime prior to their separation, appellant, an attorney, has been employed as chief executive officer of Radiant Steel Products Company, owned principally by the two parties. Appellee filed the instant action pursuant to the Divorce Code, 23 P.S. § 101 et seq., on September 19, 1980. Trial commenced in January of 1982, with various hearings held thereafter, up to and following the issuance of the contempt orders and the subsequent appeals.

A substantial amount of assets is at issue, as is the ownership of the company. Numerous discovery requests have been filed by both parties and have been vigorously contested, especially by appellant. Due to difficulties arising from appellant’s alleged interference with appellee’s service of subpoenas on various witnesses and his refusal to comply with various discovery orders, he has been held in contempt of court on four separate occasions.

Appellant raises six issues on appeal. The first four concern whether the trial court abused its discretion or committed an error of law in finding him in contempt in each of the four situations. The fifth issue concerns adequate notice of the criminal contempt hearing. The sixth issue involves the trial court’s failure to recuse itself pursuant to appellant’s request on April 23, 1982.

We note initially that in considering an appeal from a contempt order, great reliance must be placed upon the discretion of the trial judge. In re Grand Jury, April Term, 1977, Wayne County, 251 Pa.Super. 43, 379 A.2d 323 (1977).

In issues one and five, appellant challenges the propriety of the April 23, 1982 order holding him in direct criminal contempt. The order resulted from the trial court’s determination that appellant had attempted, on three occasions, to prevent or interfere with appellee’s service of subpoenas on various witnesses and his interference leading to the failure of one witness to appear pursuant to having been served with a subpoena.

The first incident was an attempt to serve process on Mel Hines, an employee of appellant’s company. When the process server appeared at the company’s offices and asked appellant about Mr. Hines’ whereabouts and how he could contact him, appellant told the server it was “none of your business” and that “that is your problem.”

The second incident was an attempt to serve process on another employee, June Schreiber, at appellant’s home. The process server was admitted to appellant’s home by his daughter, who informed the server that Schreiber was in the shower. The process server told appellant’s daughter to notify Schreiber of his presence. Appellant then appeared and evicted the server from the home, telling him Schreiber did not reside there.

The third incident was a telephone conversation between appellant and a representative of appellee. The representative was attempting to contact Sherian Ross, another of appellant’s employees, to inform her of when she was required to appear in court pursuant to a subpoena previously served on her. After calling the company and Ross’ residence in a futile attempt to locate her, the representative called the company again and was put on the telephone with appellant. Appellant then told the representative not to call the company, as she was “browbeating" his employees, and that she was to speak with him exclusively.

The testimony regarding all three incidents occurred on April 20, 1982, the date on which Ross was ordered, but failed, to appear. Subsequent to the testimony, the court issued a Rule to Show Cause why Sherian Ross should not be held in contempt for her failure to appear at that hearing, as ordered by the subpoena. The hearing on the Rule was held April 23. At this hearing, following testimony from Ross, the transcript continues:

By Mr. Greevy [counsel for appellant]:

If it please the Court, we would like to call Mr. Fensta-maker, if that is appropriate in this proceeding?

By The Court:

Yes. You may step down.
I want to make it clear before he takes the stand. My concern at this point is not just with regards to Mrs. Ross, but with regards to his behavior, and I want to spell that out, so there is a clear understanding before he takes the stand.

By Mr. Greevy:

Yes, your Honor, he understands that. That is why he is taking the stand.

By The Court:

I want to spell that out. I received testimony earlier this week from [process servers] Harold McCallis and Ernest Strossel and from Kimberly Everly. All of them have testified in various ways as to conduct on other occasions in which Mr. Fenstamaker has inter-ferred [sic] with the orderly process of services of subpoenas upon witnesses. In that context it has added meaning, and I am concerned whether he should not be held in contempt of Court after the hearing concludes.

N.T. April 23, 1982 at 44A-45A.

Following appellant’s testimony, the trial court made findings of fact concerning appellant’s interference with service of process, held him in direct criminal contempt pursuant to 42 Pa.C.S. § 4131(2), and imposed the fine of $1,000, payable within 30 days.

The statute involved, 42 Pa.C.S. § 4131 states:

§ 4131. Classification of penal contempts
The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

As set forth in Weingrad v. Lippy, 300 Pa.Super. 76, 79, 445 A.2d 1306, 1308 (1982), four elements are necessary to support a finding of contempt under section 4131(2):

1. The order or decree must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited.

2. The contemnor must have had notice of the specific order or decree;

3. The act constituting the violation must have been volitional; and

4. The contemnor must have acted with wrongful intent.

See also Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978) (plurality opinion). Also, a conviction for criminal contempt clearly requires proof beyond a reasonable doubt. In re Bernhart, 501 Pa. 428, 461 A.2d 1232 (1983). Appellant argues that the trial court’s classification of its order as direct criminal contempt was improper, and that if in fact criminal, the order was justified only on the basis of indirect criminal contempt. He further argues that indirect criminal contempt convictions require certain procedural safeguards not present in the instant proceeding.

A direct criminal contempt consists of misconduct of a person in the presence of the court, or disobedience to or neglect of the lawful process of the court, or misbehavior so near thereto as to interfere with the immediate business of the court. The essence thereof is that the misconduct constitutes a direct affront to the dignity and authority of the court so that punishment is required to preserve the efficacy of the judicial system and the administration of justice. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980).

There is support for the conclusion that influencing a witness to absent himself may be a contempt of court. See Greason v. Cumberland Railway Company, 54 Pa.Super. 595 (1913) (dictum); 1 Std.Pa.Practice 2d § 5:10; GoodrichAmram 2d § 4019(c):6. However, our review of the findings of fact on which the trial court held appellant in criminal contempt convinces us that the conviction was unwarranted in the instant case. No order or decree was directed to appellant, regarding either service of the subpoenas or the rescheduling of the April 19 hearing; therefore, the first two requirements as set forth in Weingrad v. Lippy, supra have not been met. Hence, appellant’s conduct was, at best, indirect criminal contempt.

In Commonwealth v. Fladger, 250 Pa.Super. 36, 378 A.2d 440 (1977), appellant was convicted of criminal contempt for her failure to comply with a subpoena duces tecum requiring production of certain hospital records. Our court held the order invalid, as there was neither personal service of a court order nor personal knowledge sufficient to place her on notice of personal responsibility to comply, as the subpoena was not individually directed to appellant. The court also set forth the rule of law that personal service of a court order is ordinarily a prerequisite to a contempt adjudication for disobedience of a court order. An exception exists where the person has actual knowledge of the order, despite lack of personal service. However, this exception is qualified to situations where the person has a “reliably authoritative basis” for believing that he could be held responsible for a failure to comply. See Neshaminy Plaza II v. Kelly, 21 Pa.Commw. 469, 346 A.2d 884 (1975). In the instant case, appellant did not have such a “reliably authoritative basis” for believing he could be held in contempt for his actions.

Secondly, appellant’s conduct, while uncooperative, does not rise to the level of a direct affront to the dignity or authority of the court, nor was the evidence sufficient to prove beyond a reasonable doubt that said conduct had the capacity to directly affect the proceeding then in progress. We do not condone appellant’s behavior, but cannot affirm his conviction for criminal contempt, based on the facts before us, as the requirements of section 4131(2) have not been met. We therefore reverse the order of April 23, 1982.

Appellant’s second, third and fourth issues concern the validity of the orders holding appellant in contempt on May 26, 1982, June 14, 1982 and July 2, 1982. We disagree with appellee’s allegation that appellant’s failure to file exceptions to the contempt order constitutes waiver. A contempt order imposing sanctions is final and appealable when entered and no exceptions are required. Joseph Horne Co. v. International Union of Operating Engineers, Local Union No. 95-95A, 250 Pa.Super. 145, 378 A.2d 868 (1977). Commensurate with this holding, appellant now argues on appeal that the procedural requirements prerequisite to an adjudication of civil contempt were not followed. We do not find it necessary to reach the merits of appellant’s argument regarding these orders, however, because we conclude that the challenges to them have been waived.

Generally, questions neither raised nor properly preserved for review in contempt proceedings in the court below will not be considered by the reviewing court. 7A P.L.E. Contempt § 38. During the contempt hearings, appellant never objected that he was not being accorded necessary procedures. Appellant may not have remained silent before the court below and now be heard to complain that the trial court’s procedures were improper. See In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975) (due process challenge to contempt proceeding waived because not raised at contempt hearing). See generally Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Appellant argues additionally that the trial court erred in not recusing itself pursuant to appellant’s request.

In Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981), the court held that while appellant charged that the judge was “unfair” and “prejudiced,” he did not levy any personal attack on the court nor was there an ongoing, bitter controversy between the two. The judge, therefore, did not abuse his discretion in refusing to recuse himself. Our review of the record in the instant case indicates the same lack of an ongoing, bitter controversy. Furthermore, we find no evidence of unfairness or prejudice by the court. As no valid allegations of bias or prejudice appear, we hold the issue to be meritless. See Municipal Publications, Inc. v. Snyder, 322 Pa.Super. 464, 469 A.2d 1084 (1983).

We note finally appellant’s allegations that the fines assessed were extraordinarily high. We agree with the reasoning of the trial court that “(w)hile the amount of the fine is large, given the defendant’s wealth and his income, a very large fine is necessary in the judgment of the Court in order to coerce compliance.” N.T., 7/8/82 at 11. Thus, based upon our review of the record, we find no abuse of discretion with respect to the orders and assessed fines of May 26, 1982 and June 15, 1982. Appellant’s assets were sizeable and, accordingly, the fines not unreasonable. Appellant also alleges abuse of discretion by the court in its refusal to rule on appellant’s Request to Purge Himself of Contempt. As appellant’s Request does not appear of record because of its filing subsequent to the taking of these appeals, we are unable to rule on this issue.

The order of April 23, 1982 is reversed. The orders of May 26, 1982, June 14, 1982 and July 2, 1982 are affirmed.

      . The first order was for criminal contempt, the remaining three for civil contempt.

      . At the April 23 hearing, both Ross and appellant also testified as to the reason for her failure to appear on April 20. Appellant had told Ross on April 16th that the hearing, originally scheduled for April 19, was cancelled. However, the court found that appellant failed to tell her that he had already been informed that the hearing was rescheduled for April 20, in the afternoon. Ross was unavailable on April 20, as she had left town in reliance on appellant’s information.

      . Renumbered as § 4132 and amended Dec. 20, 1982, P.L. 1409, No. 326, Art. II, § 201 eff. in 60 days.

      . No evidence was presented indicating that any of the witnesses could have been served but for appellant’s interference. Also, having already been served with a subpoena, Ross’ failure to appear on April 20 cannot be attributed exclusively to appellant’s conduct in informing her that the hearing had been postponed.


source: Caselaw Access Project

license: Public Domain

text:
    487 A.2d 16
    Betty LEWIS, Appellant, v. John L. PRUITT.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1984.
    Filed Jan. 4, 1985.

      William B. Anstine, Jr., York, for appellant.
    Patricia A. Butler, York, for appellee.
    Before WICKERSHAM, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

At the conclusion of a four-day trial, the jury awarded damages to plaintiff, Betty Lewis, of $110,000 in economic loss and $140,000 in non-economic loss. The trial court molded the verdict by deducting $15,000 from the verdict on economic loss. The deduction represented the possible wage loss benefits collectible by plaintiff from her no-fault insurance carrier.

Both parties filed post-trial motions. Plaintiff contended that she was entitled to counsel fees and costs in connection with a pretrial request for admissions. She further excepted to the court’s refusal to permit the recovery of punitive damages, as well as the deduction of $15,000 work loss benefits from her $110,000 award for economic loss. Defendant, John L. Pruitt, sought a new trial based upon the alleged excessiveness of the verdict and the admission into evidence of earnings of beauticians to determine plaintiff’s earning capacity. Defendant also resisted the award of delay damages.

The trial court dismissed the exceptions of both parties, granted delay damages on the verdict as molded by the court, and directed the entry of judgment on the modified verdict. Both parties now appeal from the judgment as entered. We reverse so much of the trial court’s order as sought to reduce the award for economic loss, affirm the balance, and remand for entry of judgment consistent with this opinion.

I. BACKGROUND

This case arose out of a two car, head-on collision which occurred on May 22, 1981. The defendant had been rendered unconscious by vehicle exhaust fumes which had collected in his unventilated car. His car crossed the center line and struck plaintiff’s car in her lane of travel. Plaintiff suffered a traumatic cervical syndrome and other injuries. Prior to the accident, plaintiff had been employed as a bundle work binder at a dress manufacturing plant in York, Pennsylvania for some seventeen years. Prior to that she had been a beautician.

II. DISCOVERY SANCTIONS Prior to trial, plaintiff had requested the admission of certain facts regarding the salary range for beauticians in the York County area. The request was in the form of an undated, handwritten statement by one Mae Van Tassel, which in its entirety set forth the following:

Mae Van Beauty Salon 20 N. Harrison Street York, PA 17403 8432941

Having been a beautician and employer for 38 years I am familiar with payment in wages in the average Beauty Salon in the last five years in this area listed as follows.

Starting saleries [sic] are the minimum wage scale.

After about one year the average operator is paid by Commission only, which consists of 50% of all services performed. There are instances when 40% is payed [sic] and also 60%, however, the operator is then charged for some supplies. So I conclude in a .40 hour week with a full scedual [sic] of customers an operator can earn $200. to $300. weekly.

Mae Van Tassel

The defendant responded to the request by filing an objection thereto, pursuant to Pa.R.C.P. 4019(d)(3), on the basis that the statements of Mae Van Tassel “are not matters that relate to statements or opinion of fact or of the application of law to fact.”

Pa.R.C.P. 4019(d) vests in the trial court authority to tax as costs the reasonable expenses of making proof on matters not previously admitted, unless the court finds that “the party failing to admit had reasonable ground to believe that he might prevail on the matter.” The trial court, in its Opinion filed in disposing of post trial motions, found that the defendant had a reasonable belief that he did not have to admit the truth of the statement. The court noted its midtrial ruling that the statement itself was inadmissible without more expert testimony on plaintiffs aptitude and skills.

The imposition of specific sanctions for failure to obey a discovery order is largely within the discretion of the court. Brunetti v. Southeastern Pennsylvania Transportation Authority, 329 Pa.Super. 477, 478 A.2d 889 (1984). We are not inclined to disturb the trial court’s finding regarding the respondent-defendant’s reasonable belief given the difficulty encountered by the plaintiff in securing the ultimate admission of the testimony. We affirm that portion of the court’s order refusing fees and costs in connection with the request for admissions.

III. PUNITIVE DAMAGES

Prior to trial, plaintiff sought leave to amend her complaint to include a paragraph for punitive damages based on defendant’s alleged “outrageous conduct.” Leave to amend was denied, the trial court relying on this court’s decision in Reimer v. Delisio, 296 Pa.Super. 205, 442 A.2d 731 (1982), aff'd, 501 Pa. 662, 462 A.2d 1308 (1983). In Reimer, we held that a trial judge does not commit error in refusing to permit a jury to consider punitive damages based upon arguably reckless conduct where the action arises under the No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq. (Supp.1984).

Plaintiff nevertheless contends on this appeal that she should have been permitted to amend her complaint in pursuit of punitive damages inasmuch as an individual remains liable for intentionally injuring himself or another individual. 40 P.S. § 1009.301(a)(3). In Teagle v. Hart, 279 Pa.Super. 487, 421 A.2d 304 (1980), we adopted the definition of “intentionally” as it appears in Section 208(b)(1) of the No-fault Act for the purpose of determining whether a party remains liable in tort under Section 301(a)(3).

Section 208(b)(1) provides, in pertinent part:

An individual intentionally injures himself or another individual if he acts or fails to act for the purpose of causing such injury or with knowledge that such injury is substantially certain to follow. An individual does not intentionally injure himself or another individual:
(A) merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury; ...

We can readily agree with plaintiff’s argument that the defendant knew that carbon monoxide fumes were entering the passenger compartment of his vehicle and that defendant knew the fumes were making him lose consciousness. We also agree that the testimony at trial would support a finding that defendant nevertheless rolled up his window, thereby allowing the fumes to accumulate. After a review of both the amended complaint and the trial transcript, we reject plaintiffs contention that “the defendant was ‘substantially certain’ that if he was unconscious, his automobile would strike another automobile causing injuries to individuals such as the plaintiff and his passengers.” Brief for Appellant at 14.

The defendant testified only as part of the plaintiff’s case in chief, as on cross-examination. The only relevant testimony as to defendant’s state of mind on this issue occurred as follows:

Q. So you continued driving on down to York even though you knew the fumes were having an effect on you?
A. I figured I could make it home.
Q. Did you have to be in York at any special time that morning?
A. No.
Q. And you found that you had to keep the windows open to drive because you were effected [sic] by the fumes?
A. Yeah.
Q. From your past experience, you knew that inhaling such fumes as this can effect [sic] your ability to do things and make you drowsy?
A. I guess so.
Q. And knowing all this, when you got near York, you put your windows up and continued driving?
A. I put my windows up and down all morning, but I put my windows up because me and Kenneth both got cold. It was cold.
Q. So as you got to York, you put the windows up? A. Yeah, because I figured I could make it right over the hill. That’s all I had to do, was go over the hill. Q. The next thing you knew, you heard a horn and you were on the other side of the road?
A. [Witness nodding in the affirmative.]

Notes of Testimony, Vol. I., February 15-16, 1983, at 79-80.

A review of the proposed Amended Complaint reveals that the only additions sought to be included were as follows:

7.
(D) The defendant operated his vehicle knowing it to be defective in that he knew his vehicle to have a leak in its exhaust system which caused exhaust fumes to enter the passenger copartment [sic], causing him to become intoxicated or otherwise to impair his ability to operate his vehicle.
(E) The defendant operated his vehicle while intoxicated and otherwise impaired, from exhaust fumes which he knew to be entering his vehicle.
15.
The defendant, Pruitt’s, conduct was outrageous, wil-full [sic], intentional and done with malicious or reckless disregard for the rights of the plaintiff, Betty J. Lewis.
WHEREFORE, the plaintiff asks this Honorable Court to grant judgment of compensatory and punitive damages against the defendant with interest and costs in excess of Ten Thousand Dollars ($10,000.00).

Applying the definition of “intentionally” as found in Section 208(b)(1) of the No-fault Act, we have no difficulty in concluding that the act of the defendant in continuing on his journey and in rolling up his window was not done either for the purpose of causing the plaintiff’s injuries or with knowledge that the plaintiff’s injuries were substantially certain to follow. Neither the averments in the complaint nor the evidence introduced at trial would support such a conclusion. Accordingly, we affirm that portion of the court’s order dismissing plaintiff’s exceptions to the rulings of the court on this issue. Plaintiff’s request for leave to amend the complaint to pursue punitive damages was properly denied.

IV. IMPAIRMENT OF EARNING CAPACITY

At trial, the court allowed testimony by two hair salon operators as to the earnings plaintiff could receive as a beautician. On appeal, defendant contends this was error, inasmuch as plaintiff had not been employed as a beautician for approximately sixteen years prior to the accident and no evidence of definite plans to return to work in this field had been offered. Absent such evidence, defendant urges that the testimony as to beautician’s earnings was both speculative and irrelevant and, thus, inadmissible. We cannot agree.

As a general rule, questions concerning admission or exclusion of evidence are within the sound discretion of the trial court, to be reversed on appeal only for a clear abuse of discretion. Radogna v. Hester, 255 Pa.Super. 517, 388 A.2d 1087 (1978).

Plaintiff testified to having graduated from the Empire Beauty School in York, PA and to having received a beautician’s operator’s license from the state licensing board. She had worked as a beautician for approximately eleven years and maintained her own shop with the necessary equipment in her home, working thirty to forty hours a week. While employed at the dress manufacturing plant, plaintiff had maintained her operator’s license, renewing it every two years. She continued to do beauty work for her friends and members of her family, while working at the dress manufacturing plant, and had even discussed reopening a beauty shop with two of her fellow workers at the plant, both of whom were also beauticians.

Defendant relies principally on Frysinger v. Philadelphia R.T. Co., 249 Pa. 555, 95 A. 257 (1915) and Wiley v. Moyer, 339 Pa. 405, 15 A.2d 145 (1940) for the proposition that evidence of a former occupation is inadmissible to show earning capacity where there has been a break between the former occupation and the time of the injury. We find both cases to be inapposite.

In Frysinger, the plaintiff had been permitted to introduce testimony as to her earnings as a professional pianist at a period some two or three years prior to the accident. In sustaining the assignment of error as to this testimony, our supreme court noted that the plaintiff had apparently abandoned the occupation, there was no evidence that she intended to resume it, no medical testimony as to her inability to teach music and, at the time of the accident, the plaintiff was “a married woman, living with her husband.” 249 Pa. at 559-60, 95 A. at 258. The Frysinger court further noted that it did not appear from the record what the probabilities were of plaintiffs being able to secure employment at her former occupation, in case she wished to resume it. The court also observed that the trial court, in its charge to the jury, first declared that one didn’t know whether the plaintiff would ever be engaged as a pianist again, and that it would be pure conjecture to consider the extent to which her condition after the accident would have an effect upon her ability to teach, but that the jury should take that into consideration in considering the impairment of plaintiffs earning capacity.

In Wiley, the supreme court held that the issue of the admissibility of evidence of prior employment had been waived due to the failure of defense counsel to timely object to the only portion of the evidence that was prejudicial. By way of dictum, the court stated that testimony as to plaintiff’s actual earnings as a coal miner some nine years before the accident, and for a period of years prior thereto, was “too remote in point of time to be competent proof of his capacity as a wage earner when the accident occurred.” 339 Pa. at 409, 15 A.2d at 146.

Unlike the Wiley case, the plaintiff in the present appeal introduced testimony not only of her continued licensure to perform work as a beauty operator but also of her having continued on a casual, part-time basis in performing duties as a beautician. Plaintiff also introduced evidence of the probable compensation available to her were she to resume full-time work as of the time of trial.

The thrust of defendant’s contention appears to be that a definite plan to return to work in a given occupation is a prerequisite to the introduction of evidence intended to demonstrate a loss of earning capacity in that field.

The test for impaired earning capacity is whether the economic horizon of the disabled person has been shortened because of the injuries sustained as a result of the tortfeasor’s negligence. Bochar v. J.B. Martin Motors, 374 Pa. 240, 97 A.2d 813 (1953); Janson v. Hughes, 309 Pa.Super. 399, 455 A.2d 670 (1982); see generally Frankel v. Todd, 393 F.2d 435, 438-40 (3d Cir.1968), cert. denied, 393 U.S. 855, 89 S.Ct. 137, 21 L.Ed.2d 120 (1968). The Plaintiff presented evidence of a serious, permanent neck injury which reduced her ability to lift and bend, thereby preventing her from working at her previous jobs. Although she had returned to work at the dress manufacturing plant after the accident, her inability to perform her tasks of repetitive bending and lifting resulted in her being laid off. She further testified that she was physically unable to resume her occupation as a beautician since the pain she experienced in her shoulder and neck prevented her from lifting her arms.

Where, as here, the plaintiff has maintained her skills as a beautician, continued to practice her trade albeit on a part-time basis and engaged in discussions pointing towards a return to that occupation, we hold that it was not an abuse of discretion for the trial judge to submit this evidence to the jury on the issue of impairment of earning capacity.

V. EXCESSIVENESS OF VERDICT

The jury attributed 100% of the causal negligence to the defendant and awarded plaintiff $110,000 for her economic loss and $140,000 for her non-economic loss. Defendant complains that both awards were excessive.

While it is true that a court can grant a new trial based on the excessiveness of the verdict, it may not lightly disregard the jury’s award. The duty of assessing damages is within the province of the jury and should not be interfered with by the court, unless it clearly appears that the amount awarded resulted from caprice, prejudice, partiality, corruption or some other improper influence. Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980). Each case is to be decided according to its unique facts and circumstances. The granting or denial of a new trial on grounds of excessiveness of award is within the discretion of the trial court and will not be reversed in the absence of a clear abuse of discretion. This court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice. Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super. 386, 473 A.2d 120 (1984). Cf. Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983).

Being mindful of these guidelines, we can find no grounds for the granting of a new trial based upon the verdicts rendered in this case. The record contains ample testimony to support the jury’s award. The testimony of the plaintiff, her medical experts, and her vocational rehabilitation expert was extensive with regard to plaintiff’s disability and impairment of earning capacity. The plaintiff had a work life expectancy of 16.5 years to the age of seventy and, if physically able, could have earned up to $300 per week on a commission basis as a beautician.

Her chief injury was a traumatic cervical syndrome. Her neck injury is permanent, although surgery might possibly alleviate the condition. As a result of the accident, she also sustained a laceration to the lower lip when her teeth went through her lip at impact requiring surgery and resulting in a permanent scar. She suffered bruises to her hips and knees, and experienced pain in her knees, chest, neck and shoulder area, which pain continued at a reduced level at time of trial. She experiences frequent headaches and is unable to lie on her left side while in bed. She is incapable of performing heavy work and has experienced difficulty in doing normal housework. She wore a cervical collar for some period of time. She can no longer engage in her favorite sport of bowling.

In light of this evidence, we cannot conclude that the award of $110,000 for her economic loss and $140,000 for her non-economic loss was either capricious or excessive.

VI. MOLDING THE VERDICT

Finally, plaintiff contends that the trial court erred in molding the verdict by deducting $15,000 from the jury’s award of $110,000. The amount deducted represented the possible wage loss benefits collectible by plaintiff from her no-fault carrier under Section 202(b) of the No-fault Act. Since this appeal was filed, our court has squarely decided the issue in favor of plaintiff. Williams v. Dulaney, 331 Pa.Super. 373, 480 A.2d 1080 (1984).

In Williams we held that the No-fault Act does not provide basic loss benefits for lost earning capacity, but only for recovery of wages actually lost. There, the evidence before the jury was clear that the plaintiff had lost wages of exactly $1,481.55, all of which had been compensated by her no-fault carrier. We reversed the order of the court deducting $15,000 from the verdict and modified the judgment to reflect a deduction in the amount of the lost wages which had been recovered. We recognized that the plaintiff had returned to work on a full-time basis and it was “unlikely that she will suffer any further actual wage loss due to the accident.”

In the appeal now before us, there was no evidence submitted to the jury by either party as to plaintiff’s wage loss benefits. Nor was there any attempt by defendant to prove a setoff. One week after trial, plaintiff submitted her exceptions to the court’s order molding the verdict. The exceptions averred that work loss benefit payments were in the amount of $3,020. The trial court accepted that figure of actual wage loss benefit in its opinion of June 22, 1983, filed in response to plaintiff’s exceptions. In her brief to this court on appeal, plaintiff concedes that the verdict should have been set off in the amount of $3,020.

We thus will vacate so much of the order of the trial court as deducted $15,000 from the award for economic loss, and modify the judgment to reflect a deduction of $3,020.

VII. CONCLUSION

The order of the trial court dismissing defendant’s motions for a new trial and judgment n.o.v., granting plaintiff’s request for delay damages, refusing plaintiff’s request for counsel fees and costs in connection with her requests for admissions, and dismissing plaintiff’s exceptions to the court’s refusal of punitive damages is affirmed. So much of the court’s order as deducted $15,000 from the jury’s award for economic loss is reversed.

The judgment in favor of the plaintiff is modified to the sum of $106,980 for economic loss, $140,000 for non-economic loss, with delay damages, as modified, of $18,523.50. The case is remanded for entry of the judgment as modified.


author: MONTGOMERY, Judge:

text:
    487 A.2d 23
    Francis J. WOELFEL and Jean G. Woelfel, his wife, Appellants, v. MURPHY FORD COMPANY, Ford Motor Company, and Uniroyal, Inc., Appellee, and Goodyear Tire and Rubber Company.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1984.
    Filed Jan. 4, 1985.

      Edward L. Wolf, Philadelphia, for appellants.
    Christopher K. Walters, Philadelphia, for appellees.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from the lower court’s order granting a motion filed by the Defendant-Appellee Uniroyal, Inc. for a compulsory non-suit against the Plaintiff-Appellants, Mr. and Mrs. Francis J. Woelfel. The Appellants assert on this appeal that the lower court erred in entering a compulsory non-suit. We cannot agree.

The record shows that this action was instituted to recover damages for personal injuries suffered by Mr. Woelfel when a tire blowout caused the car he was operating to crash. This accident occurred on September 29, 1978, as the Appellant husband drove his automobile at approximately 35 to 40 miles per hour on an “S” curved ramp leading from the Schuylkill Expressway in Philadelphia. The tire which suffered the blowout had been on the automobile since it was furnished to the Plaintiff by his employer as a new vehicle in June, 1977. The tire in issue was on a rear wheel of the vehicle until on or about September 11, 1978, when it and the other three similar original equipment tires were inspected at an automobile service facility. The servi-ceperson who performed this inspection pronounced the condition of the tire in question as satisfactory, but recommended the replacement of the two front tires with new tires. The new tires were put on the rear of the vehicle, and the two rear original equipment tires, including the one in issue in this case, were placed on the front of the car. At the time this took place, the serviceperson estimated that the two original tires which were retained had an expected useful life of eight to ten thousand miles. Mr. Woelfel drove his vehicle another 1220 miles after the inspection of tire rotation, without any problem, before he suffered his accident. At the time of the accident, it was established that the vehicle’s odometer showed that it had traveled 36,820 miles.

The vehicle was disposed of as scrap after the accident, so that the tire in issue was unavailable for inspection to determine the cause of the blowout. Witnesses indicated there were skid marks on the road at the site of the accident, but no holes in the road, other impediments or obstacles or curbs which appeared to have been causes of the tire blowout.

Based upon these facts, we find no error in the lower court’s conclusions that there was insufficient evidence to submit this case to the jury on the issue of Uniroyal’s liability to the Appellants. The Appellants’ sole theory of recovery against Uniroyal is that the tire in question was manufactured defectively. The only evidence which the Appellants presented to suggest such a possibility was the mere happening of the accident. There was no evidence whatsoever presented to suggest what specific defect may have existed, and how, if it did exist, it only caused a blowout after the tire was used for almost 37,000 miles without any problem. Moreover, one cannot ignore the satisfactory inspection of the tire by Appellants’ own chosen serviceperson approximately two and one-half weeks before the accident, and its use for over 1200 miles thereafter until the accident occurred. There is no evidence to exclude possible causes of the tire failure other than a manufacturing defect, such as a nail or other sharp object, or possible other road hazards or debris.

The evidence of both the prolonged trouble-free use of the tire, and the satisfactory inspection conducted prior to the accident, would have made it unreasonable and erroneous to have allowed the jury to consider whether the Appellee should be found liable for a manufacturing defect in this case. In other cases such an inference has allowed a plaintiff to submit the claim to the jury because of the short time the tire or other equipment in issue was in use by the plaintiff before the accident occurred. See McCann v. Atlas Supply Co., 325 F.Supp. 701 (W.D.Pa.1971) (less than 2000 miles on new tire when it blew out); MacDougall v. Ford Motor Company, 214 Pa.Super. 384, 257 A.2d 676 (1969) (steering assembly failure after only 143 miles of use). Such an inference is not presented by the evidence offered in this case. If a trial was permitted upon the evidence presented here, our courts could expect a suit against a manufacturer every time a flat tire or blowout occurred on any vehicle in our Commonwealth, except when a road hazard cause was very apparent. Thus, we conclude that the lower court did not err in granting the motion for compulsory nonsuit in this case.

Affirmed.

      . In this review, we give the Plaintiff-Appellants the benefit of every inference of fact arising from the evidence and resolve all conflicts or doubts in favor of the Appellants. West Penn Power Co. v. Bethlehem Steel Corp., 236 Pa.Super. 413, 348 A.2d 144 (1975).

      . The Appellants’ claims against Defendants Murphy Ford Company and Ford Motor Company and against Additional Defendant Goodyear Tire and Rubber Company were concluded by a settlement prior to trial.


author: HOFFMAN, Judge:

text:
    487 A.2d 25
    COMMONWEALTH of Pennsylvania v. Shane OHLINGER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 5, 1984.
    Filed Jan. 9, 1985.

      William R. Bernhart, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before McEWEN, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant alleges trial counsel's ineffectiveness and sentencing error. Because we find that the lower court erred in imposing a minimum sentence under the Youth Offenders Act, we vacate the judgment of sentence and remand for resentencing.

On September 16, 1981, appellant was arrested and charged with arson, burglary, criminal trespass, and criminal mischief. A plea bargain was negotiated whereby appellant would plead guilty to the first two charges, make restitution, and continue his association with the Bureau of Vocational Rehabilitation in exchange for two ten-year probation sentences and the prosecution’s agreement to nolle prosse the other charges. A primary consideration underlying the bargain was the fact that appellant had suffered a serious head trauma and brain injury in a 1978 motorcycle accident. The lower court rejected the plea bargain, however, and appellant entered an open plea of guilty. On August 5, 1982, appellant was sentenced as a youthful offender to a term of eighteen-months-to-six-years imprisonment at the Camp Hill facility. At that time, appellant was advised that he had ten days in which to file motions to withdraw his guilty plea or modify his sentence. (N.T. August 5,1982 at 12-13). On September 7, appellant filed a motion to withdraw his plea which was dismissed on September 28 as untimely filed. No motion to modify sentence was ever filed. This appeal followed.

Appellant first contends that trial counsel was ineffective in failing to advise the court of appellant’s mental condition, either at sentencing or by filing a motion to modify sentence. When confronted with a claim of ineffectiveness, we must first determine whether the issues underlying the claim are of arguable merit. If the underlying issues are found to have arguable merit, then we determine whether the strategy chosen by trial counsel had some reasonable basis designed to effectuate the client’s interests. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); Commonwealth v. Kaufman, 307 Pa. Superior Ct. 63, 73, 452 A.2d 1039, 1044 (1982). Here, the record reveals that trial counsel did inform the court of appellant’s medical problems, both at the plea colloquy, see N.T. April 15, 1982 at 8, and at sentencing, see N.T. August 5, 1982 at 9. Furthermore, counsel supplied the Adult Probation and Parole Department with a lengthy psychological evaluation which was included in the presentence report. (N.T. April 15, 1982 at 8; N.T. August 5, 1982 at 9; Appellee’s Brief at 3). Thus, we find that counsel cannot be deemed ineffective.

Appellant also contends that the trial court erred in imposing a minimum sentence. Appellant was sentenced under the Youth Offenders Act, Act of April 28, 1887, P.L. 63, § 6, as amended, 61 P.S. § 485 (1964), which specifically prohibits the imposition of a minimum sentence. Although, at the time that appellant was sentenced, this Court had held that the provisions of the new Sentencing Code requiring a minimum sentence superseded those of the Youth Offenders Act, see Commonwealth v. Aeschbacher, 276 Pa. Superior Ct. 554, 419 A.2d 596 (1980), our Supreme Court has since rejected that interpretation and reaffirmed that no minimum sentence is allowed under the Youth Offenders Act. See Commonwealth v. Shoemaker, 502 Pa. 573, 467 A.2d 819 (1983). Accordingly, we must vacate the judgment of sentence and remand for resentencing.

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

       Although this issue was not raised at sentencing or in post-verdict motions, the legality of a sentence can never be waived. Commonwealth v. Norris, 498 Pa, 308, 319 n. 9, 446 A.2d 246, 251 n. 9 (1982); Commonwealth v. Fulton, 315 Pa. Superior Ct. 420, 422 n. 4, 462 A.2d 265, 266 n. 4 (1983). An illegal sentence is void. See Commonwealth v. Hoffman, 210 Pa. Superior Ct. 48, 232 A.2d 19 (1967).


author: CERCONE, Judge:

text:
    487 A.2d 27
    Margaret A. ROACH, Appellant, v. G. Dale ROACH.
    Superior Court of Pennsylvania.
    Argued June 7, 1984.
    Filed Jan. 9, 1985.
    Petition for Allowance of Appeal Denied July 29, 1985.

      Nathan L. Reibman, Easton, for appellant.
    Richard J. Shiroff, Easton, for appellee.
    Before McEWEN, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is a support case in which the court below denied the appellant-wife’s claim on the ground that she had committed adultery. Finding the evidence insufficient to support that conclusion, we reverse.

The record reveals that the parties were married in October of 1961, and cohabited until January of 1980 when appellee-husband left the marital household. On August 31, 1982, appellant petitioned for support and a hearing was held on October 7, 1982. At this first hearing, appellant testified that after appellee left she remained in the home while he paid the bills and gave her $50.00 a week for support. In mid-August of 1982, however, they had a dispute over the disposition of their joint property and appellee reclaimed possession of the marital residence. Appellant testified that she found herself without funds or shelter and, as a result, she moved into the home of a friend, Roger Melgary, whom she intended to pay back when able.

Based on the evidence presented at the hearing of October 7, 1982, the lower court on October 13, 1982, ordered appellee to pay support in the amount of $130.00 per week. Appellee then appealed that order to this court and, in addition, filed a timely motion for reconsideration with the lower court. Appellee’s request for reconsideration was granted and a second hearing was scheduled for December 9, 1982.

At the second hearing, appellant was called to testify as of cross-examination regarding her living arrangements with Mr. Melgary. She explained that he is a widower and former neighbor whom she has known for eight years. Appellant testified that while staying at Mr. Melgary’s residence she had her own bedroom and bathroom as well as kitchen privileges. Although Mr. Melgary paid all of the household expenses and advanced appellant money for her personal needs, it was understood that when financially able she would reimburse him for her stay. Mrs. Roach acknowledged that she had gone out socially with Mr. Mel-gary on occasion.

Appellee’s only other witness was a private investigator whose testimony can best be characterized as inconsequential. Based upon brief surveillance of Mr. Melgary’s home, he simply confirmed what Mrs. Roach candidly admitted, that she was staying at the home of a male friend.

Based upon the foregoing testimony, the court below held that, contrary to its previous order of October 13, 1982, appellee was not obligated to support his wife. That decision was based on the trial judge’s finding that the evidence presented at the second hearing was sufficient to establish the existence of a meretricious relationship. Having thoroughly reviewed the entire record, we find the evidence clearly insufficient to sustain the lower court’s finding. Indeed, in our view the purported evidence of infidelity was at best speculative.

It is well settled that the obligation of support continues until it is shown that the conduct of the dependent spouse provides a ground for divorce. Morley v. Morley, 283 Pa.Super. 397, 424 A.2d 524 (1981); Hellman v. Hellman, 246 Pa.Super. 536, 371 A.2d 964 (1977). Moreover, the conduct claimed to nullify the obligation must be proven with clear and convincing evidence. Commonwealth v. Turner, 258 Pa.Super. 388, 392 A.2d 848 (1978); Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974); Commonwealth ex rel. McCuff v. McCuff, 196 Pa.Super. 320, 322, 175 A.2d 124, 125 (1961) (“proof of guilt must be clear and satisfactory”). We do not believe that appellee has met his burden of proof.

We recognize of course that direct evidence of adultery is seldom if ever available. In view of this evidentiary problem, we previously quoted with approval the following passage from Freedman, Law of Marriage and Divorce in Pennsylvania, Yol. I, 2d. ed at page 456:

“The difficulty of obtaining direct evidence of adultery and the almost universal resort to circumstantial evidence, has given great importance to the doctrine known as the ‘inclination and opportunity rule’. Under this doctrine adultery will be presumed where three elements are shown: (1) the adulterous disposition or inclination of the defendant; (2) the adulterous disposition, or inclination, of the co-respondent; and (3) the opportunity created to satisfy their mutual adulterous inclination. The three elements must conjoin. Proof of mere opportunity without adulterous disposition, or of adulterous disposition without opportunity, will not be sufficient. But if the criminal passion is found to exist, proof of opportunity which otherwise would scarcely be sufficient to raise a passing cloud of suspicion will possess a most convincing force.”

Commonwealth v. Levitz, 189 Pa.Super. 438, 444, 150 A.2d 581, 584 (1959).

Instantly, it cannot be disputed that the opportunity to commit adultery existed. However, as noted above, an adulterous inclination or disposition must also be shown. In this regard, the lower court merely states: “The record from the reconsideration hearing, including the observations of [appellee’s] investigator, convince us that [appellant’s] residency with another individual was not merely a platonic cohabitation. The circumstances indicated that the relationship was indeed more than one of merely landlord and tenant.” Lower court opinion at 2. Unfortunately, we are not told exactly what circumstances convinced the trial judge that appellant possessed an adulterous inclination or disposition. And while the factual findings of the judge below are to be accorded great weight, we are not bound by the inferences or deductions made by the hearing judge from those findings. Commonwealth v. Levitz, supra. We have carefully reviewed the sparse record in this case, and conclude that appellee’s purported proof of adultery fell far short of being clear and convincing. Appellant’s testimony that Mr. Melgary was simply a good friend providing assistance during her time of need was uncontroverted. Appellee’s investigator merely testified that it appeared that Mrs. Roach was staying overnight at Mr. Melgary’s home. We are at a loss to understand how the lower court found on this record that appellant was guilty of adulterous conduct. As we read it, the record in this record in this case supports no more than a suspicion of misconduct and that of course cannot suffice for evidence. Brower v. Brower, 157 Pa.Super. 426, 43 A.2d 422 (1945).

Since the evidence was insufficient to prove an adulterous inclination or disposition, the court below abused its discretion in denying appellant’s claim for support. See Morley v. Morley, supra.

Accordingly, the lower court’s order of December 14, 1982, is reversed and the record remanded with instructions to reinstate the order of October 13, 1982, awarding support. Jurisdiction is relinquished.

      . Appellee’s appeal was rendered inoperative by the order granting reconsideration. Pa.R.A.P. 1701(b)(3).

      . Furthermore, appellee has not filed a brief and has elected to rely on the lower court opinion.


author: OLSZEWSKI, Judge:

text:
    487 A.2d 29
    Alex LaZAR and Linda LaZar, his wife v. RUR INDUSTRIES, INC., Appellant, v. The UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, and Local 9051 of the United Steelworkers of America, AFL-CIO-CLC, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1984.
    Filed Jan. 11, 1985.

      Thomas M. Lent, Erie, for appellant.
    Richard T. Ruth, Erie, for LaZar, appellees.
    Rudolph L. Milasich, Jr., Pittsburgh, for United Steelworkers, appellees.
    Richard E. Gordon, Pittsburgh, for Local 9051, appellees.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

In this case, appellant RUR Industries, Inc., appeals the lower court’s order dismissing its complaint against two additional defendants, the United Steelworkers and Local 9051 (“the unions”). After carefully examining the facts, the complaint and the law, we affirm the judgment.

The roots of this case are in a labor dispute between Local 9051 and RUR. Alex LaZar, a member of Local 9051 who was on picket duty, was injured in a melee at 1 a.m. August 27, 1981. He sued RUR for negligence, alleging that the company failed to disperse the mob of off-duty employees which attacked him, failed to post security guards to prevent such attacks and failed to control its employees. These acts and omissions, he alleged, constituted negligence and caused his injuries.

RUR denied his allegations and filed a complaint against the unions, charging that they had sanctioned an atmosphere of harassment, vandalism and violence such that “there was great susceptibility to the outbreak of violence.” RUR averred that the unions were solely liable for the injuries, or that the unions were liable in indemnity to RUR, or that the unions were jointly and severally liable with RUR.

The trial court, on appellees’ preliminary objections in the nature of a demurrer, sustained the objections and dismissed the complaint against the unions, stating that it failed to state a cause of action. Appellant had failed to allege that the non-striking workers who had caused the injuries were acting under the direction of the additional defendants, or were acting as their agents; in the lower court’s opinion, this omission was fatal.

When an appeal is from the sustaining of preliminary objections in the nature of a demurrer, the well-pleaded facts of the complaint are admitted, as well as any reasonable inferences that can be drawn from them. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973). Therefore, we must assume that appellant’s allegations are true. We now address whether those facts can support the company’s claim that the unions are solely liable for the injuries; that the unions are liable in indemnity to the company if the company must pay damages; and that the unions are jointly and severally liable with the company for the injuries.

The company alleges that the unions are solely liable for the injuries because they created an atmosphere where “there was great susceptibility to the outbreak of violence.” This is a novel theory of liability with potentially serious consequences for unions, and warrants careful attention.

The company complains that the unions were negligent because it was reasonably foreseeable that, by creating the atmosphere, injury to union members would result, and cites cases on incitement to riot in support. Before a cause of action is stated in negligence, there must be: (1) a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the injury, and (4) actual loss or damages to the interests of another. Morena v. South Hills Health System, 501 Pa. 634, 642 n. 5, 462 A.2d 680, 684 n. 5 (1983).

We agree with the lower court that there is no cause of action in negligence stated here. Assuming, as we must, that the unions created an atmosphere where “there was great susceptibility to the outbreak of violence,” we hold that the unions had no duty to refrain from creating such an atmosphere.

Similarly, the unions cannot be liable on an indemnity theory. Indemnity requires that a secondary tortfeasor be liable or have paid damages for an injury for which he is not truly at fault. The liability must be imputed or constructive. Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969).

Here, we have already determined that the unions are not liable for the injury suffered. They cannot be liable to RUR in indemnity.

Finally, RUR alleges that the unions are jointly and severally liable with the company. Joint and several liability arises when there are joint tortfeasors. Joint tortfeasors exist where “two or more persons owe to any other the same duty and by their common neglect, such other is injured.” Lasprogata v. Qualls, 263 Pa.Super. 174, 397 A.2d 803 (1979). Here, as we have stated, the unions had no duty and could not have had a common duty with the company; joint and several liability is not appropriate.

The judgment is affirmed.

SPAETH, President Judge, concurs in the result.

      . His injuries from the beating he suffered consisted of cuts and bruises, post-trauma headaches and mental stress. His wife sued for loss of consortium, anxiety, loss of sleep and aggravation of ulcers.

      . The company also alleged in its complaint that the striking union members carried on a "steady, studied and deliberate campaign of violence, threats, intimidation, harassment, physical and verbal abuse of those who continued to work at RUR Industries, manifested by the throwing of objects, the lining of the driveway with nails, with resultant damage to all vehicles, all of which violence and conduct must, of necessity, inevitably lead to violence.” The company further alleged that a striking worker had thrown a can of black tar or paint on the car of a non-striking worker on August 27, 1981, at shift change, leading to the attack of Alex LaZar. This conduct, it is alleged, was "sanctioned, condoned and approved” by the unions’ leaders.

      . While this may seem a questionable result, we believe that it is necessary in light of the public policy of this Commonwealth. The duty of unions in strikes, defined by law, is to refrain from unlawful acts. See 43 Pa.S. Sec. 206h (Purdon’s 1964). Unions have a right to exist, 43 Pa.S. Sec. 191. They have a right to strike, 43 Pa.S. Secs. 199, 200. They may not be enjoined from "assembling peaceably ... to promote their lawful interests.” 43 Pa.S. Sec. 206f(j). They may not be enjoined from "advising, urging or otherwise causing or inducing, without misrepresentation, fraud or violence,” others to halt work for others. 43 Pa.S. Sec. 206f(k). But unions and union members may be enjoined when "unlawful acts have been committed," when “substantial and irreparable injury” will occur, when no adequate remedy at law exists, and when police cannot furnish adequate protection. 43 Pa.S. Sec. 206i.
      If unlawful acts and vandalism took place here, equitable relief was in order, and apparently was pending at the time the complaint was made. The atmosphere of which the company complains was in part its doing; instead of briskly pursuing its statutory remedies, the company chose to ignore the atmosphere and risk the retaliation of its employees against the strikers.
      We think public policy of this Commonwealth as regards union liability for strike-related damages is expressed in the statutes cited above, permitting union liability for intentional torts. Before a plaintiff may recover from a union in a strike-related complaint, he must be able to show, by the weight of the evidence, that the acts complained of were ordered, authorized or ratified by the union. The individual union members may be made to pay if the weight of the evidence shows they did the acts.
      To hold otherwise would be to return to the situation in the days before the Norris-LaGuardia Act, upon which 43 Pa.S. Sec. 206h is modeled, where employers could, in tense strike situations, incite violence and break the union involved by then suing for damages.


author: JOHNSON, Judge: WICKERSHAM, Judge,

text:
    487 A.2d 32
    Ronald E. HASH and Betty C. Hash, husband and wife v. Edwin C. SOFINOWSKI and Jocine A. Sofinowski, husband and wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1984.
    Filed Jan. 11, 1985.
    Petition for Allowance of Appeal Denied June 10, 1985.

      John L. Calhoun, Towson, Md., for appellants.
    David R. Anderson, York, for appellees.
    Before WICKERSHAM, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

This appeal is taken from a final decree entered by the Court of Common Pleas of York County, sitting in equity, enjoining appellants Edwin C. and Jocine A. Sofinowski from limiting the width of a right-of-way across their land used by appellees Ronald E. and Betty C. Hash. The parties agree that since 1924, appellees' predecessors in title acquired a prescriptive right to use the way going from Watters Road over the Sofinowski property to the Hash property. In 1981, appellants installed a series of posts along the western boundary of the right-of-way and dug a bank ten feet to the east of these posts. The Hashes brought suit alleging that the Sofinowskis had wrongfully impeded access to their property and requested they be enjoined from so limiting the way.

Appellants have owned their property in Fawn Township, York County, Pennsylvania, since 1966. Appellees purchased a tract adjoining the Sofinowski estate in 1980. The Hash property is landlocked, the easement at issue providing the only access to the nearest public way, Watters Road.

Testimony adduced at trial established use as a farm of portions of the Hash estate from 1924 until the 1960’s. Mr. Hash further testified that such a use continued until 1980. During this period, the right-of-way was used for passage of farm equipment to the Hash property, although testimony varied significantly as to the width of the easement. The trial court found that the contemplated use of the easement for modern farm equipment was consistent with that which had been established during the prescriptive period, and determined that a right-of-way 18 feet wide was a reasonable extension of the prescriptive easement acquired by appellees. Appellants were directed to restore it to that width, and took exceptions. The court en banc affirmed. Because we find a prescriptive easement, unlike an express easement by grant, to be narrowly limited to the extent of use rather than mode of use exercised during the period of prescription, we vacate and remand for additional findings of fact in accordance with this opinion.

When a right-of-way is expressly granted, its scope is determined by ascertaining the intention of the parties to the grant. Lease v. Doll, 485 Pa. 615, 403 A.2d 558 (1979). The easement is construed in favor of the grantee where the terms of the grant are vague, so as to permit reasonable use and enjoyment. Id. This is so because a right-of-way is generally granted of necessity, providing the owner of property landlocked by subdivision with access to the public road. The landlocked property would otherwise be rendered virtually useless. Piper v. Mowris, 466 Pa. 89, 351 A.2d 635 (1976).

Although the extent of an easement is limited to that which has been granted, our courts have consistently permitted express easements to accommodate modern developments, so long as the use remains consistent with the purpose for which the right was originally granted. This is based upon a presumption that advances in technology are contemplated in the grant of the easement. Smith v. Fulkroad, 305 Pa.Super. 459, 451 A.2d 738 (1982). Thus Lease, supra, and Piper, supra, allowed easements granting ingress and egress to the dominant tenements across the servient tenements to expand from footpaths to ways permitting passage of motor vehicles. The use, or more appropriately, purpose, remained the same — access to landlocked property. Only the extent of that use reasonably increased.

Similarly, in Wise v. Lutz, 78 York 153 (1964), the court of common pleas permitted a right-of-way of undetermined width to be defined to accommodate modern-day farm equipment. The court found that the easement had consistently been used for the passage of farm machinery, and determined that 16 feet was now necessary for the “reasonable and proper enjoyment” under present conditions.

At first blush, the facts of Wise appear to be on point with the case at bar. There is, however, one critical distinction: the right-of-way in Wise arose by express reservation in the grant; the easement presently before us has arisen by prescription.

It is axiomatic that an easement by prescription arises by actual, continuous, adverse, visible, notorious and hostile possession of the property in question for a period of 21 years. Keefer v. Jones, 467 Pa. 544, 359 A.2d 735 (1976); Adshead v. Sprung, 248 Pa.Super. 253, 375 A.2d 83 (1977). It stands to reason that the scope of such an easement must necessarily be a function of the continued, adverse use by which it was generated and is thus limited to that of the prescriptive period. See generally Annot., 5 A.L.R.3d 439 (1966). Although appellees apparently demonstrated to the trial court’s satisfaction agricultural activities upon the dominant estate during a 21-year prescriptive period, their assertion that they intend to farm their property, coupled with an equipment dealer’s testimony that modern farm machinery is 18 feet wide, is not a sufficient basis to establish that the future use of the easement by the Hashes is consistent with the adverse use during the prescriptive period.

The Restatement of Property provides:

§ 477. Extent of Easements Created by Prescription.
The extent of an easement created by prescription is fixed by the use through which it was created.

5 Restatement of Property 2992, § 477 (1944).

§ 478. Factors in Ascertaining Extent of Easements Created by Prescription.
In ascertaining whether a particular use is permissible under an easement created by prescription a comparison must be made between such use and the use by which the easement was created with respect to
(a) their physical character,
(b) their purpose,
(c) the relative burden caused by them upon the ser-vient tenement.

5 Restatement of Property 2994, § 478.

§ 479. Extent of Easement Appurtenant as Affected by Evolution of the Dominant Tenement.
In ascertaining whether a particular use is permissible Under an easement appurtenant created by prescription there must be considered, in addition to the factors enumerated in § 478, the needs which result from a normal evolution in the use of the dominant tenement and the extent to which the satisfaction of those needs increases the burden on the servient tenement.

5 Restatement of Property 3000, § 479.

Our state courts have not squarely addressed the issue of the extent of an easement created by prescription in terms of width. Bodman v. Bodman, 456 Pa. 412, 321 A.2d 910 (1974) cites without discussion these sections of the Restatement in establishing the permissible degree of use of a prescriptive easement (see infra at 456-458). Similarly, we believe the Restatement most ably defines the elements of prescriptive easements with regard to width, and join the courts of other states by applying the foregoing principles to the facts before us.

Citing §§ 478 and 479 of the Restatement, the Supreme Court of Idaho commented:

We do not mean to imply from our decision today that any increase in use of a prescriptive easement is an expansion ... Rights obtained by prescription should be strictly limited, and we read these sections of the Restatement narrowly. We are aware that some changes in the character of the dominant estate are foreseeable and will necessitate changes in the use of a prescriptive easement. We emphasize, however, that any changes in the use of a prescriptive easement cannot result in an unreasonable increased burden on the servient estate and that the increase in use must be reasonably foreseeable at the time the easement is established.

Gibbens v. Weisshaupt, 98 Idaho 633, 639, 570 P.2d 870, 876 (1977) (holding an increase in degree of use due to commercial activities and additional residences on the dominant tenement is an unreasonable expansion). Similarly, the Supreme Court of Oregon applied § 477 of the Restatement, and found insufficient evidence to support a prescriptive use of an easement for a width of 24 feet. In Walter v. Martinson, 276 Or. 411, 555 P.2d 21 (1976), a prescriptive easement was established as a logging road. A witness testified that an easement for such a road should be at least 24 feet wide, and “most” logging roads are 50 feet in width. The testimony of actual use, however, indicated it was basically a one-lane road with some turns, and the nearest road appeared to be 16 feet wide. The court held that the “evidence does not support a finding of ‘use’ of a roadway more than 16 feet in width, except for a width of 24 feet on two ‘turns’ and some ‘turn-offs.’ ” Id., 276 Or. at 415, 555 P.2d at 23. The court remanded for a determination of the location of the “turns” and “turn-offs,” and for amendment of the legal description of the easement.

In Bodman v. Bodman, supra, our supreme court reiterated that an easement by prescription is limited to the adverse use made during the prescriptive period, but added that this limitation is not absolute. In that case, a portion of the dominant tenement was sold and the easement was subsequently used for access to four recreational cabins built by the grantee. The court held, consistent with the Restatement position, that normal evolution of the dominant tenement permits reasonable increases in the burden imposed upon the servient tenement. The easement originally was used for entry and exit of motor vehicles so that an increase in the number of vehicles using the lane was not unreasonable. The width of the easement did not increase, however, as the location and dimensions of the easement remained the same. Only the degree of its use expanded, but such expansion was not an unreasonable burden. See also Minteer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316 (1982). A reasonable increase in degree of use is thus permissible whereas an expansion of the original easement is not. Gibbens v. Weisshaupt, supra. As stated quite simply by the Supreme Court of Idaho, “any increase in width of a prescriptive easement would constitute an impermissible expansion even if a contemporaneous increase in traffic over the easement would not. An increase in width does more than merely increase the burden upon the ser-vient estate; it has the effect of enveloping additional land. Aztec Limited, Inc. v. Creekside Investment Co., 100 Idaho 566, 569, 602 P.2d 64, 67 (1979) (emphasis added) (holding an increase in traffic over a prescriptive easement due to the construction of a 200-unit apartment complex is an unreasonable burden).

In the case before us, the trial court found:

[S]uch right of way previously was used for the entry and passage of farm equipment of a size and width as it existed over the prescriptive period beginning in 1924. Plaintiffs desire to use the passage for the same purpose in the same manner. However, present farm equipment now requires a width of eighteen feet for that purpose. We consider such width to be a reasonable increase resulting from normal evolution.

(R. at 16.)

As outlined above, the degree of use of a prescriptive easement may increase in certain circumstances to accommodate the normal evolution of the dominant tenement where reasonable, but we find no authority which permits a right-of-way acquired by prescription to expand in size due to changes in the equipment brought upon it. We therefore hold that the easement in question is limited in location and size to that which arose during the prescriptive period.

The evidence needed for an accurate determination of width is absent from the record. Because the width of a prescriptive easement must be established by the extent of actual use during the prescriptive period, the trial court must ascertain the accurate dimensions of that use. We therefore vacate and remand with instructions to pinpoint more precisely the exact bounds of the original right-of-way as it existed over a 21-year period of continuous adverse use. It then can be determined whether the width of the easement as established by adverse use is such as requires removal of the obstructions.

Vacated and remanded. Jurisdiction relinquished.

WICKERSHAM, J., files a dissenting statement.

WICKERSHAM, Judge,

dissenting:

I would affirm on the clear and just adjudication of President Judge Robert I. Shadle.

      . The first adverse use of the right-of-way at issue appears to have occurred in 1924. A continuous use, exhibited by a settled course of conduct for any 21-year period from 1924 until 1980 which meets the requirements for prescription, will establish the permissible extent of the easement.

      . We note further that a continuous use of 18 feet appears unlikely where the nearest road is only 12 feet wide. Although the width of Watters Road does not directly bear upon the width of the easement, it is difficult to imagine, without compelling evidence, how anything wider than Watters Road can be brought to the easement.


text:
    487 A.2d 36
    Esther GREEN v. Dr. Ish K. JUNEJA and Argonaut Insurance Co., Inc., Frank B. Hall and Company of Pennsylvania, Inc. Appeal of ARGONAUT INSURANCE CO., INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1984.
    Filed Jan. 11, 1985.

      Ralph L. Hose, Ardmore, for Juneja, appellees.
    Wilbur L. Kipnes, Philadelphia, for Hall, appellees.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

Esther Green, plaintiff-appellee, filed this action in declaratory judgment to determine the effect of a cancellation of an insurance policy by defendant Dr. Ish K. Juneja. He had purchased the malpractice policy from defendant-appellant Argonaut Insurance Co., Inc. (Argonaut). (In an underlying action, Green sued Dr. Juneja for negligent medical treatment which allegedly resulted in loss of vision in her right eye.) Green filed a Motion for Summary Judgment which the trial court granted and it is from this order that Argonaut appeals.

The basic facts were stipulated. On December 16, 1975, Dr. Juneja submitted an application for medical liability insurance to Argonaut. He was notified on February 19, 1976, that it was accepted and that a policy from January 1 to April, 1976 was in effect. He paid the premium on August 4, 1976. On August 14, 1976, Dr. Juneja wrote to Argonaut and requested cancellation of the aforementioned policy on grounds that he had not practiced medicine during the period in question. (It was stipulated that he did indeed practice medicine at that time.) Without an investigation by Argonaut, his policy was cancelled “flat” as if it were never issued and the premium was applied to a new policy effective July 1, 1976. Then, in December 1977, Green sued Dr. Juneja for allegedly negligent medical care in January and February 1976. It is plaintiff Green who seeks the determination as to whether Dr. Juneja is indeed covered.

The trial court found, pursuant to Green’s Motion for Summary judgment on the pleadings, that Argonaut’s policy, number PM00707, issued to Dr. Juneja, was in full force and effect during the relevant period, from January 1, 1976, to April 1, 1976, and that the retroactive cancellation of the policy on August 17, 1976, was void and without effect. Essential to the court’s reasoning was the mandatory nature of malpractice coverage as set forth in the Health Care Services Malpractice Act, 40 P.S. § 1301.701. The court referred to one of the purposes of the Act, to benefit those persons who have “sustained injury or death as a result of tort or breach of contract by a health care provider.” 40 P.S. § 1301.102. Thus, it concluded that the basic purpose of the Act, to protect the public, would fail if Argonaut were to be released from its contractual obligations. The court found that Green was a third party beneficiary who would be unjustly deprived of a possible recovery by retroactive cancellation of the policy. The court referred to 40 P.S. § 1301.1002, Cancellation of insurance policy, and found that because Argonaut did not notify the insurance commissioner in accordance with this section, that the cancellation did not occur. Finally, the court found there was no evidence in the record of fraud on Dr. Juneja’s part, which Argonaut argues would render the insurance contract void ab initio.

Preliminarily, we note that under Pa.R.C.P. 1035, summary judgment may only be entered where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978).

“In addition, we are mindful that in considering a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party; that the court’s function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party [citations omitted]”. Taylor v. Tuka-nowicz, 290 Pa.Super. 581, 586, 435 A.2d 181, 183 (1981).

We are persuaded that the decision of the trial court was correct in that the insurer did not comply with the cancellation procedures of the Health Care Services Malpractice Act, 40 P.S. § 1301.1002, and because of that, the retroactive cancellation of malpractice insurance as to Dr. Juneja was not effective.

Central to our disposition of this issue is the interpretation to be given to Section 1301.1002.

Any termination of a professional liability insurance policy by cancellation, except for suspension or revocation of the insured’s license or approval by the Commonwealth to provide health care services or for reason of nonpayment of premium, is not effective against the insured covered thereby, unless notice of cancellation shall have been given within 60 days after the issuance of such contract of insurance against the insured covered thereunder and no cancellation shall take effect unless a written notice stating the reasons for the cancellation and the date and time upon which termination becomes effective has been received by the commissioner at his office. Mailing of such notice to the commissioner at his principal office address shall constitute notice to the commissioner.

Appellant Argonaut argues that this provision was intended by the legislature to impose a notice requirement on an insurer only when the insurer cancels a malpractice policy. Argonaut looks to the legislative history of this provision as it appears at Legislative Journal, Vol. I, No. 66 at 2281 (July 21, 1975).

“MR. TAYLOR: Mr. Speaker, these amendments are ageed to, and I did not get a chance to get them circulated on all the members’ desks, but I will. What the amendment does in essence is to put the cancellatin notice in line with the cancellation that is presently in effect under our liability coverage. It says the notice of cancellation shall be given within 60 days after the issuance of such contract.
Now what it really does is, it stops an insurance company from arbitrarily cancelling the insurance coverage after 60 days. In other words, once the policy has been issued, they have 60 days in order to send out notice of cancellation. If they fail to cancel within 60 days, the insurance will stay in effect for the term of the contract.”

While this reference to the General Assembly’s floor discussion does illustrate a purpose behind the cancellation notice provision, it by no means presumes to state the only purpose. The language of § 1002 is clear and unambiguous that notice shall be given to the insurance commissioner upon any termination of a professional liability policy. Under basic rules of statutory construction, the plain meaning may not be ignored. 1 Pa.C.S.A. § 1921(b). Contrary to Argonaut’s contention, this plain meaning is fully consistent with the legislative intent to prevent arbitrary cancellations by insurers.

Moreover, to require an insurer to notify the commissioner in the event of any termination, fulfills one of the general purposes of the Act as it appears at Section 102, that it is to benefit those persons who have “sustained injury or death as a result of tort or breach of contract by a health care provider.” This purpose is upheld upon notice of cancellation effectuated by an insurer or by an insured. Once a health care provider becomes uninsured in derogation of the mandate of the Act, regardless of who instigates the cancellation, a potential victim of negligence by that health care provider is at risk of being uncompensated.

Therefore, because the insurer did not comply with Section 1301.1002 of the Health Care Services Malpractice Act, the cancellation was not effective and Dr. Juneja was covered by insurance during January to April 1976.

Argonaut raises a number of other issues on this appeal, all of which this court concludes are without merit. It cites to various opinions of the Attorney General which hold the Act as inapplicable to physicians who do not practice within Pennsylvania. However, it was stipulated at trial that Dr. Juneja did practice medicine during the relevant period regardless of what he represented to Argonaut. This court cannot disregard this stipulation.

Argonaut also argues that Juneja’s representation that he did not practice medicine at that time was a fraud on Argonaut and Pennsylvania, and that, therefore, the insurance contract was void from the beginning. However, the principles relating to the voiding of an insurance policy in the case of misrepresentation contained in an application for insurance, are not applicable in this case. Underwood v. Prudential Insurance Co. of America, 241 Pa.Super. 27, 359 A.2d 422 (1976). Here it was the attempted termination of the insured that was allegedly fraudulent, not its initiation. Appellant has not persuaded us that voiding the insurance contract ab initio would in any way be an appropriate remedy.

Order affirmed.

POPOVICH, J., concurs in the result.

      . Frank B. Hall and Co. of Pennsylvania, Inc., has not submitted a brief in this appeal, but adopts as its own the brief for appellant, Argonaut. Frank B. Hall and Co. is an insurance brokerage which is administrator of the Pennsylvania Medical Society’s professional liability insurance program which is underwritten by Argonaut.

      . Section 7533 of the Declaratory Judgments Act, 42 Pa.C.S.A. § 7533, defines the interest required by a party seeking a declaratory judgment by providing in pertinent part as follows:
      Any person ... whose rights, status, or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status, or other legal relations thereunder.

      . A motion for summary judgment is appropriate in declaratory judgment proceedings. Pa.R.C.P. 1035, Pa. P.U.C. Bar Assoc. v. Thornburgh, 62 Pa.Cmwlth.Ct. 88, 434 A.2d 1327 (1981).

      . Act of October 15, 1975, P.L. 390, No. 111, §§ 101 etseq., as amended by the Act of December 14, 1979, P.L. 562, No. 128, 40 P.S. §§ 1301.101 et seq. (Supp.1984-85).

      . A reviewing court may affirm a decision of the trial court if the result is correct on any ground. E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 381 A.2d 441 (1977).

      . Plain words of statute cannot be disregarded where language is free and clear from all ambiguities. Commonwealth v. Patchett, 284 Pa.Super. 252, 425 A.2d 798 (1981).

      . The purpose of a statutory provision ... providing that an insurance carrier cannot cancel ... except on ... prior notice to the appropriate commission is to give assurance to the commission that the protection contemplated by the act or statute is provided. G. Couch, Insurance 2d, § 67:87 (1983).

      . While we premise our affirmance on the failure of the insurer to notify the insurance commissioner in accordance with 40 Pa.C.S.A. § 1301.1002, we want to emphasize that the cancellation of the liability policy was also not valid since it would be inequitable to permit the insurer to cancel the policy after the injury was suffered. This is so in light of the mandatory nature of such coverage to protect the public and also under well-established principles of insurance law.
      A valid cancellation of an insurance policy relieves the insurance company from liability for subsequent losses, but does not operate to relieve the company from liability incurred prior to the date of cancellation.
      18 Pennsylvania Legal Encyclopedia § 196 (1959).
      While it is true that the insured requested the cancellation of his policy, the principle withstands this distinction, since the plaintiff in the instant action is in the posture of a third party beneficiary. Thus, it is this court’s conclusion that, even if the proper notice had been given in this case, it would not have been effective since it was an attempted retroactive cancellation after the injury had occurred.


author: SPAETH, President Judge:

text:
    487 A.2d 40
    COMMONWEALTH of Pennsylvania v. George W. BECKER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1984.
    Filed Jan. 18, 1985.

      Alan M. Cashman, Hanover, for appellant.
    Thomas L. Kearney, III, Assistant District Attorney, York, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   SPAETH, President Judge:

This is an appeal from an order denying a motion for a new trial on the ground of after-discovered evidence. The order was entered by a judge other than the trial judge. This was contrary to Pa.R.Crim.P. 1123(e). We therefore remand for further proceedings before the trial judge consistent with this opinion, with this court retaining jurisdiction meanwhile.

On January 18, 1982, a jury, with MILLER, J., presiding, found appellant guilty of driving under the influence of alcohol or controlled substance. 75 Pa.C.S. § 3731(a). The evidence against appellant included the results of a breathalyzer test. Some two and a half months after sentencing, appellant filed a petition for new trial on the ground of after-discovered evidence, alleging that “subsequent to [his] conviction and sentence ... and after the expiration of the time for filing post-trial motions,” evidence was discovered of a design defect in the type of device used in administering the breathalyzer test, of such severity as to cause the State police to stop using the device. Petition, para. 3. The trial court, by RAUHAUSER, J., entered an order denying the petition without hearing or opinion. Appellant then filed a notice of appeal. In response, Judge MILLER filed a memorandum stating that he expressed no opinion as to the merits of the appeal because it was not from an order that he had entered as trial judge. Memorandum by MILLER, J., February 2, 1983.

Pa.R.Crim.P. 1123(a) states generally that post-verdict motions must be filed within ten days after a finding of guilt. However, this general requirement is immediately qualified by subsection (d) of Rule 1123, which states:

A motion for a new trial on the ground of after-discovered evidence must be filed in writing promptly after such discovery. If an appeal is pending, the court may grant such motion only upon remand of the case.
(Emphasis added.)

In the usual case, after-discovered evidence will not be discovered until more than ten days after a finding of guilt. Nevertheless, a motion for new trial on the ground of after-discovered evidence may be filed, so long as it is filed “promptly.” Here, we do not know whether appellant’s motion for new trial on the ground of after-discovered evidence was, or was not, filed “promptly”. The reason we do not know is because, as we have mentioned, the trial court, by RAUHAUSER, J., denied the motion without hearing or opinion. Since Rule 1123(e) provides that “[t]he trial judge shall determine whether post-verdict motions shall be argued before himself alone or before a panel sitting as a court en banc____”, we shall remand this case so that Judge MILLER, who was the trial judge, may determine, first, whether appellant’s motion for new trial on the ground of after-discovered evidence was timely filed within Pa.R.Crim.P. 1123(d), and second, if it was, whether a new trial should be granted. See Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978); Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786 (1971). Pending Judge MILLER’S determination, we shall retain jurisdiction of the appeal.

So ordered.

      . This provision has since been amended by Act of Dec. 15, 1982, P.L. 1268, No. 289, § 9, 75 Pa.C.S. § 3731.