text:
    456 A.2d 540
    The McDOWELL NATIONAL BANK OF SHARON, Pennsylvania, Appellant, v. Milan M. STUPKA and Frances M. Stupka, husband and wife, Anthony J. Frank and Mary S. Frank, husband and wife, and Brimar Construction Company.
    Superior Court of Pennsylvania.
    Argued April 27, 1982.
    Filed Jan. 7, 1983.
    Reargument Denied March 21, 1983.
    Petition for Allowance of Appeal Denied July 20, 1983.

      P. Bartholomew, Sharon, for appellant.
    William C. Kuhn, Sharon, for Stupka, et al., appellees.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from Orders of April 27 and June 22, 1981 entered by the Honorable John Q. Stranahan, President Judge, in the Court of Common Pleas, Mercer County. The orders pertain to the dismissal of the appellant’s petition for deficiency judgment.

The pertinent facts of this case are as follows: In October, 1977, petitioner, McDowell National Bank of Sharon, Pennsylvania (hereinafter, “appellant”) agreed to loan to the respondents, Milan and Frances M. Stupka, Anthony and Mary S. Frank, and the Brimar Construction Company (hereinafter, “appellees”) the sum of $330,000.00. This loan was to be used to consolidate the debts of the appellee, construction company, and to provide the company with working capital. The appellees executed a note in favor of the appellant in the sum of $330,000.00 in addition to giving the appellant a mortgage in the amount of $330,000.00 covering five parcels of land owned by the appellees. In November, 1977, the appellee, construction company gave the appellant a security interest in its construction equipment as added collateral for the $330,000.00 loan and a security agreement was filed shortly thereafter.

On November 25, 1977, the appellees executed a demand note in favor of the appellant in the amount of $330,000.00. This note was part of the overall transaction between appellees and appellant. The collateral of the demand note consisted of the mortgage and the security agreement against the construction equipment. On January 16, 1978, the appellant had judgment confessed against the appellees on the note.

In June of 1979, appellant filed a Complaint in Mortgage Foreclosure against the appellees and a default judgment was entered against appellees in March, 1980. The mortgaged property was sold to the appellant at a foreclosure sale.

In October, 1980, the appellant filed a petition for a deficiency judgment based on the default judgment entered against the appellees on the mortgage foreclosure. This petition was dismissed by the lower court on the basis that a deficiency can be recovered only by an in personam judgment, the mortgage foreclosure being an in rem judgment. The court supported its decision with the Supreme Court’s holding in Meco Realty Company v. Burns, 414 Pa. 495, 200 A.2d 869 (1964). The appellant’s motion for reconsideration of the dismissal was denied. The court also refused to grant both the appellant’s motion to transfer the petition for deficiency judgment to the January 1978 judgment that appellant had confessed against appellees and the motion by appellant to merge the mortgage foreclosure judgment with this confessed judgment.

The appellant raises a number of issues pertaining to whether it can bring this deficiency action under the mortgage foreclosure judgment. It contends the following: (1) that language amending Section 8103(a) of the Judicial Code allows for the filing of a deficiency judgment petition pursuant to judgment underlying the execution proceeding against the mortgaged premises; (2) alternatively, that the original Complaint in Mortgage Foreclosure was sufficient for the entry of a dual judgment, i.e. a judgment in rem and a judgment in personam; (3) that the mortgage foreclosure judgment merged with the earlier confession of judgment; and (4) that the petition for deficiency judgment should have been transferred to this earlier judgment pursuant to rule 213(f) of the rules of civil procedure and Section 5103(c) of the Judicial Code.

First, we consider whether the language amending Section 8103 of the Judicial Code allows for a deficiency judgment petition to be filed under a mortgage foreclosure judgment. Originally, section 8103(a) stated:

Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. 12 P.S. § 2621.1

In 1978, this section was amended by the addition of the following statement:

“The petition shall be filed as a supplementary proceeding in the matter in which judgment was entered.”

The appellant argues that this additional sentence simplifies the procedure by which one obtains a deficiency judgment to the extent that the distinction between the in rem mortgage foreclosure judgment and the in personam deficiency judgment is abolished. This distinction was addressed in Meco Realty Company v. Burns, supra, wherein the Court explained “[t]he sole purpose of the judgment obtained through an action of mortgage foreclosure is to effect a judicial sale of the mortgaged property. Once the foreclosure sale has taken place, the purpose of the judgment has been fulfilled and it is rendered functus officio.” Id, 414 Pa. at 498, 200 A.2d, at 871. Furthermore, it held that the resort to a deficiency judgment proceeding and any further proceeding under the judgment of mortgage foreclosure, having as its object the imposition of personal liability upon the named defendants is a useless action and void at law. The appellant argues that the rule set forth in Meco is now modified by the amendment to section 8103(a). We disagree with this interpretation.

While we perceive that the added sentence has the effect of simplifying the deficiency judgment procedure, we do not construe it so broadly as to equate an in rem proceeding with an in personam proceeding. We agree with the lower court’s analysis that the amended portion of 8103(a) pertains to a deficiency judgment entered simultaneously with or subsequent to a mortgage foreclosure judgment and that the action to assess the deficiency is considered simply a proceeding that is supplementary to the matter in which judgment was entered. We find nothing in the additional provision to even remotely suggest the conversion of a judgment de terris into a judgment in person-am.

In Pennsylvania, mortgage foreclosure is governed by the Rules of Civil Procedure, the requirements of which must be strictly followed. First Federal Savings and Loan Association v. Porter, 408 Pa. 236, 183 A.2d 318 (1962). Our decision in Signal Consumer Discount Company v. Babuscio, 257 Pa.Super. 101, 390 A.2d 266 (1978), which was entered after the amendment to section 8103(a), defined and maintained the distinction between in person-am and in rem judgments. Here, we recognized that the very definition of a mortgage foreclosure action, under Rule 1141(a) of the rules of civil procedure, excludes an action to enforce personal liability. This restriction, we determined, is essential to preserve the “de terris” identity of the mortgage foreclosure. From this, it is obvious that had the legislature intended to abolish this distinction, it would have indicated so under those rules which promulgate the distinction. In light of the foregoing analysis, we decline to find any merit in the appellant’s first argument.

The appellant’s next claim that its original Complaint in Mortgage Foreclosure was sufficient for the entry of a dual judgment against the appellees is unsupported by the record. It cites, as its basis, our decision in Kretschman v. Stoll, 238 Pa.Super. 51, 352 A.2d 439 (1975), wherein a mortgagee was allowed to secure, simultaneously, an in rem judgment against the property and an in personam judgment against the mortgagor for the deficiency. At the outset of our discussion of that case we acknowledged that the law is clear regarding the invalidity of utilizing the Deficiency Judgment Act to impose personal liability where personal judgment was not obtained. We determined, however, that a dual judgment entered on a Complaint which asks specifically for a judgment on the bond or note and a judgment in mortgage foreclosure constitutes an exception to this rule.

In Kretschman, the mortgagee’s prayer for relief reads as follows:

Plaintiffs demand judgment against the Defendants in the amount of forty-five thousand ($45,000.00) dollars together with interest and attorney’s commission and for other interests, costs, charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. (Emphasis in original)

238 Pa.Super. at 60, 352 A.2d at 441. In the instant case it is apparent from the record that the appellant was interested solely in the mortgage foreclosure. Its prayer for relief does not comport with the Kretschman standards for joining an action in assumpsit on a mortgage bond with an action in mortgage foreclosure. It contained no more than what is required for relief under a mortgage foreclosure. Pa.R.C.P., No. 1147(6) 42 Pa.C.S.A. We find the Complaint insufficient to obtain both in rem and in personam judgments against the appellees.

The appellant’s argument that the mortgage foreclosure merged with the confessed judgment of January 16, 1978, is predicated on the provisions of Act No. 6 of 1974, 41 P.S. § 407(a). The appellant asserts that if those judgments were merged then its petition for a deficiency judgment was filed under a judgment in personam and, therefore, the lower court erred in dismissing that petition.

The appellant maintains that Section 407(a) of Act No. 6 of 1974 (hereinafter, “Act”) had precluded it from issuing execution on the confessed judgment until it had obtained a judgment in an “appropriate action.” Furthermore, it argues that the mortgage foreclosure is that “appropriate action” which should have merged with the confessed judgment. Following a review of the entire record and relevant statutes, we find the provisions of the Act to be inapplicable to the appellant’s case.

The Act is concerned, virtually, with the “residential mortgage” obligation and with the procedure to be employed in the event of default thereof. The existence of a “residential mortgage,” then, to some extent, is a triggering mechanism which will bring into play the Act’s provisions. General Electric Credit Corp. v. Slawek, 269 Pa.Super. 171, 409 A.2d 420 (1979). The appellant attempts to categorize the transaction that occurred between it and the appellees as a “residential mortgage” thereby placing it within the ambit of the Act. This is based on the fact that at least two of the five parcels of land described in the mortgage constituted “residential real property” under the Act. However, a “residential mortgage” is defined as follows:

“Residential mortgage” means an obligation to pay a sum of money in an original bone fide principal amount of fifty thousand dollars ($50,000) or less, evidenced by a security document and secured by a lien, upon real property located within this Commonwealth containing two or fewer residential units or on which two or fewer residential units are to be constructed and shall include such an obligation on a residential condominium unit.

41 P.S. § 101. (Emphasis added). The record of this case indicates that the mortgage was executed to secure the $330,000.00 that was owed to the appellant. The amount of this obligation clearly exceeds the statutory limit of $50,-000.00 or less required to qualify the transaction as a “residential mortgage”. We conclude, therefore, that the provisions of the Act have no bearing on the transactions involved in this case, and consequently, that the mortgage foreclosure and confessed judgments do not merge.

Finally, it is contended that, pursuant to Section 5103(c) of the Judicial Code and Pa.R.C.P. 213(f), the deficiency judgment petition should have been transferred to the confessed judgment. We agree with the lower court’s assessment that the appellant has misinterpreted these statutory provisions. Section 5103(c) of the Judicial Code provides:

(c) Interdivisional transfers.—If an appeal or other matter is taken to, brought in, or transferred to a division of a court to which such matter is not allocated by law, the court shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper division of the court, where the appeal or other matter shall be treated as if originally filed in the transferee division on the date first filed in a court or magisterial district.
“Division” is defined as follows:
“Division.” An administrative unit composed of those judges of the court responsible for the transaction of a specified class of business of the court. In a court having two or more divisions, each division of the court is vested with the full jurisdiction of the whole court, but the business of the court may be located among the divisions of the court by or pursuant to general rules.

42 Pa.C.S. § 102. Similarly Pa.R.C.P. Section 213(f) states:

(f) When an action is commenced in a court which has no jurisdiction over the subject matter of the action it shall not be dismissed if there is another court of appropriate jurisdiction within the Commonwealth in which the action could originally have been brought but the court shall transfer the action at the cost of the plaintiff to the court of appropriate jurisdiction. It shall be the duty of the prothonotary or clerk of the court in which the action is commenced to transfer the record together with a certified copy of the docket entries to the prothonotary or clerk of the court in which the action is transferred.

These statutes pertain to disputes over which court has subject matter jurisdiction in a given case. The underlying issue in this appeal is not whether the lower court has jurisdiction, or whether the appellant’s action was commenced in the appropriate court, but whether a deficiency judgment petition was filed under the proper judgment. The cited provisions, therefore, do not support the appellant’s argument.

We affirm the Orders of the lower court dismissing the deficiency judgment petition and denying the appellants motions to transfer and to merge.

Orders affirmed.

      . 42 Pa.C.S.A. § 8103. This is substantially a reenactment of the act of July 16, 1941, P.L. 400, 12 P.S. § 2621.1, et seq, titled “Deficiency Judgment Act.”

      . Pa.R.C.P., No. 213(f), 42 Pa.C.S.A.

      . 42 Pa.C.S.A. § 5103(c).

      . Pa.R.C.P. Nos. 1141-1164, 3180-3183, 42 Pa.C.S.A.

      . Pa.R.C.P. No. 1141, 42 Pa.C.S.A. We further held that the only exception to this rule is Pa.R.C.P., No. 1148 which allows a defendant to assert a contractual counter-claim arising out of a mortgage transaction against the mortgagee.

      . See n. 1, supra.

      . In its prayer for relief, the appellant states:
      Wherefore the plaintiff demands judgment against the defendants, jointly and severally, in the amount of $347,192.30 plus interest from March 3, 1980.

      . § 407. Confession of Judgment
      (a) As to any residential real property, a plaintiff shall not have the right to levy, execute or garnish on the basis of any judgment or decree on confession, whether by amicable action or otherwise, or on a note, bond or other instrument in writing confessing judgment until plaintiff, utilizing such procedures as may be provided in the Pennsylvania Rules of Civil Procedure, files an appropriate action and proceeds to judgment or decree against defendant as in any original action. The judgment by confession shall be changed as may be appropriate by a judgment, order or decree entered by the court in the action. After the above mentioned original action has been prosecuted and a judgment obtained, that judgment shall merge with the confessed judgment and the confessed judgment shall be conformed as to amount and execution shall be had on the confessed judgment. The parties to the action shall have the same rights as parties to other original proceedings. Nothing in this act shall prohibit a residential mortgage lender from proceeding by action in mortgage foreclosure in lieu of judgment by confession if the residential mortgage lender so desires.

      . The lower court and both parties assume the Act No. 6 of 1974, 41 P.S. § 101, et seq., is applicable to the facts of this case. Within the context of this Act, the lower court reasoned correctly that Pa.R.C.P. No. 2981 specifically excludes actions in mortgage foreclosure from the definition of "action” and, therefore is not deemed "appropriate” under the provisions of Section 407(a) of the Act.

      . 41 P.S. § 101.

      . See n. 3, supra.

      . See n. 3, supra.

      . Appellant was granted leave to file a supplemental brief by order of this court on October 27, 1982. We have considered its supplemental argument wherein the appellant relies quite heavily on the case of Dearnley v. Survetnick, 360 Pa. 572, 63 A.2d 66 (1949). We find that this decision does not support the appellant’s claim and therefore does not require a contrary result.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    456 A.2d 545
    Brad BERMAN, A Minor, By His Parents and Natural Guardians, Leonard BERMAN and Sheila Berman And Leonard Berman and Sheila Berman, In Their Own Right v. PHILADELPHIA BOARD OF EDUCATION, Appellant.
    Superior Court of Pennsylvania.
    Argued June 2, 1982.
    Filed Feb. 4, 1983.
    Petition for Allowance of Appeal Denied May 18, 1983.

      Leon A. Mankowski, Philadelphia, for appellant.
    Eugene A. Spector, Philadelphia, for appellees.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   HESTER, Judge:

In April, 1976, Brad Berman was an eleven year old, fifth grade student, attending Sharswood Elementary School in Philadelphia. In response to a flyer distributed to each classroom announcing an after-school floor hockey league, Brad enrolled in the program and was assigned to play for the Capitals, one of the eight league teams. All games were played in the school’s gymnasium.

Daniel Caputo, a physical education instructor at Sharswood, began the program during the 1974-75 school year. He instructed the student players, at the beginning of each season, that slapshots, raising hockey sticks above the waist, checking and foul language were prohibited. During the 1975-76 school year, which included the date of April 21, 1976 at issue here, the students were equipped with hockey sticks composed of wooden shafts and plastic blades; however, no helmets, face masks, mouth guards, shin guards or gloves were provided.

On April 21, 1976, Brad Berman was facing an opposing player moving toward goal. The opposing player made a backhanded shot and his follow through motion caused the stick blade to strike Brad’s mouth. Three maxillary and two mandibular teeth were severed resulting in severe pain and extensive dental treatment.

As a result of the injuries, Brad Berman, a minor, by his parents and natural guardians, Leonard and Sheila Berman, and Leonard and Sheila Berman in their own individual capacities, filed a Complaint in Trespass against appellant, the Philadelphia Board of Education, in the Court of Common Pleas of Philadelphia County. A non-jury trial was conducted on December 12, 1980; however, a verdict was not then returned because the lower court reopened the case for the purpose of admitting life expectancy tables on Brad’s life. On April 14, 1981, a verdict was finally entered for Brad Berman in the amount of $83,190.00 and for Leonard and Sheila Berman in the amount of $1,810.00. The appellant’s exceptions and amended exceptions to the order of April 14, 1981 were denied, and an Order for Judgment in favor of the appellees in the amounts stated above was entered on August 4, 1981. This appeal followed.

It is the appellant’s first contention that there was insufficient evidence to support a finding of negligence. The expert testimony of Cosmo R. Castaldi, a pediatric dentist, and member of the Safety and Protective Equipment Committee of the Amateur Hockey Association of the United States, testified on cross examination that no regulation existed in April, 1976, requiring any kind of mouth guards for participants of amateur ice or floor hockey; consequently, the appellant reasons, no standard of care was established upon which a finding of negligence could stand. Without a regulation to the contrary, Daniel Caputo, as the appellant’s agent, was not required to furnish mouth guards. His general instructions, officiating games and calling penalties were sufficient actions to satisfy any applicable standard of care. We disagree with this reasoning and hold that the record supports a finding of negligence.

In Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981), the plaintiff was a sixteen year old student member of the Riverside High School football squad. During a summer session of “jungle football”, supervised and conducted by two Riverside coaches, the plaintiff was struck in the right eye by the outstretched hand of a teammate playing for the opposing side. A detached retina and blindness resulted. The particular style of football was especially dangerous in that it was played without any protective equipment whatsoever. At the close of plaintiff’s case, the defendant’s motion for a compulsory nonsuit was granted. The Pennsylvania Superi- or Court affirmed the lower court’s denial of the plaintiff’s motion to strike the nonsuit; the Supreme Court granted allocatur and reversed.

Among other issues, the Supreme Court in Rutter, supra, considered whether there was enough evidence of negligence to present a jury question of the School District’s liability. In concluding affirmatively, the Rutter court was led by the following facts: “jungle football” involved tackling and body blocking without equipment; it was organized, supervised and participated in by the coaches; and, the students played with intensity in an effort to impress the coaches. We recognize, of course, that our procedural review is somewhat different than that of the Rutter court. We are not reviewing the propriety of a lower court’s granting of a compulsory nonsuit; rather, we concern ourselves with whether the evidence was sufficient to sustain the nonjury verdict. This distinction is inconsequential; as in Rutter, supra, we are determining whether there is enough evidence of negligence to perceive reasonable men disagreeing on the issue of liability.

In review of a lower court verdict, it is not the appellate court’s function to substitute its judgment for that of the fact-finder so long as some credible evidence supports the verdict. City of Pittsburgh v. Readie, 44 Pa.Cmwlth. 72, 403 A.2d 192 (1979); Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973). All evidence must be interpreted in favor of the verdict winner below. Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968); Cobosco v. Life Assurance Company, 419 Pa. 158, 213 A.2d 369 (1965).

In light of these guidelines and our perusal of the record, we find enough evidence supporting a determination of negligence. . Daniel Caputo was familiar with the safety and protective equipment available for ice or floor hockey. He was also aware that mouth injuries were recurring consequences of playing the sport. In fact, he appreciated the inherent risks enough to request on two or three separate occasions during the program’s first year (1975-76) that the appellant purchase safety equipment for the students. The Philadelphia Board of Education, however, turned a deaf ear to these continual requests; no helmets, shin guards, gloves, face masks or mouth guards were provided for the students until 1977.

The standard of care was not diminished by Dr. Castaldi’s admission that no rules or regulations for the adornment of mouth guards were imposed on floor hockey in 1976. The absence of a mouth guard mandate does not necessarily excuse the appellant’s failure to impose similar rules itself. A duty of care is imposed upon a board of education for the safety and welfare of students under conditions such as those before us. Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). Having found sufficient evidence to support a breach of that duty of care, we must defer to the lower court’s judgment.

Appellant’s second contention is that the appellee, Brad Berman, assumed the risk of incurring his injury and was contributorily negligent; therefore, an affirmative defense precludes any finding of liability. When considering the tortious acts of minors, we are led by a different set of guidelines and criteria. A determination of the negligence of a minor defendant begins with the application of three presumptions: (1) minors under the age of seven years are conclusively presumed incapable of negligence; (2) minors over the age of fourteen years are presumptively capable of negligence; (3) minors between the ages of seven and fourteen years are presumed incapable of negligence; however, such presumption is rebuttable and grows weaker as the fourteenth year grows closer. Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957); Koenig v. Flaherty, 383 Pa. 187, 117 A.2d 719 (1955). Although these presumptions were initially applied only to minor defendant, later decisional law found them applicable to a determination of contributory negligence also. Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980); McIntyre v. Cusick, 247 Pa.Super. 354, 372 A.2d 864 (1977). The Dunn court opined that “utilization of the presumptions solely [with respect to a minor defendant, to] which their application is long recognized and soundly established, would result in holding a child less responsible for his acts when he is a plaintiff than when he is a defendant.” In accordance with Dunn, supra, we find the effects of immaturity to be equally applicable to a minor plaintiff and minor defendant; consequently, the presumptions of negligence espoused in Kuhns, supra, can assist a minor whether he is pursuing or defending a negligence cause of action.

Appellee, Brad Berman, being eleven years of age at the time five of his teeth were severed, is presumed incapable of contributory negligence. Whether this presumption was rebutted engages a review of his conduct in light of the behavior of a child of similar age, intelligence and experience. Kuhns, supra. Under cross-examination, Brad testified that he had played in “a numerous amount” of hockey games prior to the accident. It is not known whether his hockey experience extends to other leagues or years previous to the accident; accordingly, we conclude only that his experience with playing hockey was gathered entirely from those games played earlier in the season at Sharswood Elementary School. Furthermore, we find no evidence in the record that portrays Brad as a young boy possessed of superior intelligence thereby giving him exceptional perceptions of the risks and dangers of hockey. Neither his experience nor intelligence was so outstanding, then, to rebut the presumption against a finding of negligence. It should be noted further that Daniel Caputo testified to the nonoccurrence of any other injuries during the 1975-76 hockey campaign; therefore, Brad was unable to witness any serious injury by which we could charge him with knowing the risks involved. Without support in the record to the contrary, we must defer to the lower court’s judgment that the presumption rendering Brad Berman incapable of contributory negligence was not rebutted by the appellant.

When judging the negligence or contributory negligence of parties, less than majority age, an objective standard is applied. The standard applied to a minor who allegedly assumes the risk of incurring injury, however, is a subjective one, concerning only what a particular minor plaintiff knows, sees, hears, comprehends and appreciates. Restatement of Torts 2d, Section 496D, Comment C. Through the application of different tests, a plaintiff may be deemed to not have assumed the risk, yet a finding of contributory negligence for the same behavior is possible. For this reason, assumption of the risk and contributory negligence remain separately applied defenses.

We agree with the appellant to the extent that the assumption of risk doctrine was not abolished in Rutter, supra; however, we do not agree that the lower court erred in finding Brad Berman to not have assumed the risk. Justice Roberts, a dissenting jurist in Rutter, supra, noted that inasmuch as only three members of the seven-member court joined in Justice Flaherty’s opinion abrogating the assumption of risk doctrine, assumption of risk remains a tenable mechanism at a defendant’s disposal. Vargus v. Pitman Manufacturing Co., 675 F.2d 73 (1982), expressly espoused Justice Robert’s interpretation of Rutter’s effect on the assumption of risk doctrine. The Vargus court reasoned that insofar as Justice Robert’s reference to the continuing vitality of assumption of risk went unanswered by the other members of the court, Rutter, supra, is not controlling precedent for the abrogation of that defense.

Unlike the theory of contributory negligence, we are not predisposed to apply the Kuhn presumptions to minors alleged to have assumed the risk of injuries; we find such presumptions to be incongrous to a defense theory whose success depends upon a purely subjective analysis. Without the aid of the Kuhn presumptions, we review Brad Berman’s actions in light only of his own particular human characteristics. If by reason of his tender age and lack of intelligence, experience and information, Brad did not appreciate the dangers of floor hockey, assumption of risk is not a viable defense. The trial judge obviously reached that conclusion; absent some overwhelming evidence to the contrary, we will not deem this determination to be an abuse of discretion.

Next, the appellant maintains that the damages were set without legal foundation and contrary to the evidence. Appellant alleges that there was no expert testimony as to permanency of injury, cost of repair and prognosis of the scar and cost of future treatments. With respect to permanent disability, the appellant insists that there was no expert testimony on the consequences of the injury; rather the prognosis included only an opinion of the medical fears, a practice denounced in Baccare v. Mennella, 246 Pa.Super. 53, 369 A.2d 806 (1976).

In Baccate, supra, the plaintiff sustained injuries to his head, left shoulder, left arm and lower back as a result of a collision between defendant’s truck and his automobile. The plaintiff recovered from all injuries except for persistent back ailments. At trial, the plaintiff testified to the back pain and his treating physician testified to the medical reasons for the pain; however, the same physician was unable to project future pain, complications, medical treatment or medical expenses. The Baccare court concluded that this testimony only promotes a “mere possibility” of continuing or permanent medical problems, which allows the jury to speculate when assessing damages. We do not believe the dental testimony here of future medical complications follows the same vein as that in Baccare, supra.

Dr. Israel A. Domsky, Brad Berman’s treating dentist testified, inter alia, that the five plastic crowns placed over the severed teeth can reasonably be expected to last between ten to twelve years. The doctor explained that factors such as the continuing development of Brad’s jaw, the possible exposure of the remaining portion of the severed teeth and the temporary composition of the plastic caps are likely to necessitate recapping in ten to twelve years. This is more than mere conjecture. In Baccate, supra, there was no indisputable aesthetic deficiency that required constant observation. In light of Dr. Domsky’s precise testimony of the cost of his immediate treatment for alleviation of Brad’s pain and the construction and application of plastic caps and applicable inflationary measures, there was further evidence of an estimated cost of replacing the plastic caps in 10 to 12 years. Having this testimony at his disposal, the judge did not merely speculate or imagine future medical expenses.

Appellant argues further that the trial judge abused his discretion in permitting extensive cross examination by appellee’s counsel of Daniel Caputo. Under direct examination by appellant’s counsel, Daniel Caputo testified to his actions in supervising the floor hockey season. For instance, he instructed the students on the prohibition of slapshots, checking, foul language and raising the sticks above the waist; he organized the hockey season to run from early November through early May; he officiated all games; and, he observed the entire injury-inflicting event. His direct examination was succinct and short. On cross-examination, however, Mr. Caputo was asked whether any protective equipment such as helmets, face and mouth guards, gloves and shin guards were used; whether he was aware of the availability and cost of certain protective hockey equipment; whether he investigated the need for parental permission before students could play; whether he observed similar mouth injuries in hockey prior to the incident at issue; and, whether he had ever requested funds from the appellant school district for the purchase of protective equipment before Brad’s injury. The appellant asserts that these inquiries were impermissible in that they exceeded the scope of direct examination.

Cross-examination is not restricted to only those subjects testified to on direct testimony; it extends to any facts that tend to refute inferences elicited on direct examination. Commonwealth v. Sweet, 232 Pa.Super. 372, 335 A.2d 420 (1975); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). Commonwealth v. Mickens, 201 Pa.Super. 48, 191 A.2d 719 (1963), expands the “inference” standard in permitting the cross-examination of an adverse witness concerning any matter within his knowledge, including any matter that challenges or qualifies direct examination.

Daniel Caputo was called as the appellant’s witness for the ostensible purpose of portraying his cautious and responsible behavior in organizing and administering the floor hockey competition. This was evidenced by inquiries into his explanation of the rules. These direct inquiries inferred conduct satisfying the applicable standard of care and permitted further inquiry into care or lack thereof on cross examination. Inquiry into the wearing of protective equipment, the request for purchasing such equipment, and the witness’ familiarity with hockey injuries and protective equipment not only addresses the inference of due care on direct examination, but tends to destroy it as well. We find no error in the breadth of cross examination.

Finally, appellant alleges that the lower court erred in re-opening the appellee’s case for the purpose of introducing life expectancy tables. As the appellant itself admits, a trial judge may permit a party to re-open his case. Warren v. Mosites Construction Co., 253 Pa.Super. 397, 385 A.2d 397 (1978). Absent an abuse of discretion, the decision to permit a party to re-open his case will not be reversed on appeal. Silver v. Miller, 204 Pa.Super. 16, 201 A.2d 308 (1964). The appellant offers no proof that there was an abuse of discretion; he merely asserts that it was error to give the appellees a “second chance” to prove damages. This mere assertion does not advance his position.

Judgment affirmed.


author: BECK, Judge:

text:
    456 A.2d 552
    READING TERMINAL MERCHANTS ASSOCIATION, John ASTERIS, Trustee Ad Litem, Appellant, v. SAMUEL RAPPAPORT ASSOCIATES. READING TERMINAL MARKETS, INC. v. READING TERMINAL MERCHANTS ASSOCIATION, By John ASTERIS, Trustee Ad Litem, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1982.
    Filed Feb. 4, 1983.
    Petition for Allowance of Appeal Denied June 3, 1983.

      Robert S. Esposito, Philadelphia, for appellant.
    Leon Silverman, Philadelphia, for appellee..
    Before WIEAND, BECK and HOFFMAN, JJ.
   BECK, Judge:

In this consolidated action we are asked to determine the obligations of hold over tenants after they have been notified of a change in the terms of their lease but before they have agreed to that change.

The facts, largely stipulated by the parties, relate to the area in Philadelphia between Arch and Filbert streets, at Twelfth street, popularly known as the Reading Terminal Market. The Reading Terminal merchants have contributed variety and color to the city’s downtown area since before the turn of the present century, offering an abundance of excellent fresh foods and unusual delicacies to local shoppers and commuters. We recognize that the market itself has played an important role in the history of Philadelphia’s mercantile life, and agree with J. Chalfin, of the court below, that the merchants “were members of a unique association that, historically, drew customers to a particular location based on a local, and quite favorable reputation” (R. 28).

In August 1976, Railroad Market Inc. (hereafter Landlord) leased the premises known as the Reading Terminal Market from the Trustees of the Reading Company. Samuel Rappaport Associates is the managing agent for Landlord. The terms of the lease allows Landlord to sublease to the merchants who occupy the various stalls of the premises and who are known, collectively, as Reading Terminal Merchants Association (hereafter Tenants).

In 1976, almost all of the member merchants of the Association were already tenants in the market, occupying their various stalls on month to month leases from the Reading Company. The terms of the existing leases between the merchants and the Reading Company required the lessees to pay for all electricity actually consumed, as registered by their separate electricity meters, at the prevailing retail rate. Despite the clear words of the lease, however, the Reading Company never charged the merchants for electricity actually consumed. It was their ongoing practice to charge the merchants a flat monthly charge for electricity, an amount less than their obligation would have been by the actual terms of the lease. Furthermore, the leases between the merchants and the Reading Company did not impose any liability for real estate taxes on the lessees.

On September 24, 1976, in accordance with the notice provision of the lease, Landlord sent a letter to each of the Tenants, notifying them that their present leases would terminate as of November 1, 1976, that new leases would be negotiated with the Tenants, and that during the period of negotiation they would be tenants at will. Landlord also sent each of the Tenants on September 24, 1976, a new forty-four page lease (unexecuted) which required payment for individual consumption of electricity as measured by separate meters, and for a proportionate share of real estate taxes based on the square footage of the tenancy. The provisions of the new lease were reiterated and explained orally to each lessee. Tenants objected to the new clauses and refused either to sign the new lease or to pay the increases in their obligations to Landlord. Subsequently, some tenants signed “Form Fifty” leases with Landlord, which required payment of the disputed charges. All the Tenants continued to occupy their stalls, and the ensuing dispute between Landlord and Tenants gave rise to the actions which are now before us on appeal.

On May 30, 1978, Landlord demanded retroactive lump sum payments of electricity actually consumed from (in most cases) April 1, 1976, to the date of the demand. Tenants invoked the prior custom and usage of the old leases and continued to remit level payments rather than the amount billed based on actual consumption. Landlord then notified the Tenants of his intention to terminate electrical service if at least ten per cent of the alleged underpayment of $37,000 was not paid by December 12, 1978.

• On December 12, 1978 the Tenants filed the first of the actions underlying this appeal. They successfully petitioned the Court of Common Pleas in Philadelphia to issue a preliminary injunction against. Samuel Rappaport Associates, preventing the termination of electrical services. The injunction was followed by a consent decree in which Landlord and Tenants agreed to a payment schedule for ten per cent of the disputed overdue charges (R. 10a, 17-8a). Landlord guaranteed uninterrupted electrical service pending the outcome of further litigation on the balance of the amount claimed. At no time did Landlord seek to evict the Tenants.

On March 5, 1979 a second action was initiated, this time by Landlord, who filed a petition for declaratory judgment in which the obligations of the tenancy for taxes and electricity would be construed in light of the facts and ápplicable'law. The two cases were consolidated in March 1979, and tried before the Court of Common Pleas sitting in equity in 1980. The contested period for the payment of real estate taxes begins November 1, 1976 (following Landlord’s notice letter of September 1976) and extends to the time that a tenant either signed a “Form Fifty” léase or (if the tenant did not sign such a lease) until the present. The contested period for electricity charges begins April 1, 1976 (prior to the notice) and continués until the time of Landlord’s demand for lump sum payment and the ensuing legal action.

The lower court found for the Landlord. Exceptions were filed and the court sitting en banc dismissed the exceptions and issued a final order in Landlord’s favor for electricity and real estate tax arrearages.

Appellant Tenants principal contention is that after the Landlord’s notice of intent to terminate the month to month leases, and intent to negotiate new leases, those who remained in possession of the premises were tenants at will, and that in these circumstances, until explicitly agreements were reached in new leases, the law implies a lease on the same terms as the former one. Therefore, they argue, no Tenants are obligated to pay real estate taxes or additional sums for electricity until new written leases are executed which impose such obligations. Landlord claims that the letter of notice, accompanied by a copy of the new lease itself, constituted unambiguous notice to the Tenants of new terms which, by remaining in possession, they accepted and are bound by.

The issues which must be addressed are the legal effect of (1) the communications from the Landlord of September, 1976; (2) the Tenants remaining in possession thereafter; (3) the acceptance of payment or rent subsequent to notice; and (4) the prior performance of Tenants and the Reading Company under the old leases.

When a tenant remains in possession after the termination of a lease, the landlord has the choice of treating such a tenant as a trespasser, subject to summary ejectment; as a tenant by suffrance; or as a tenant holding over. Witmer v. Exxon Corp., 495 Pa. 540, 434 A.2d 1222 (1981). For a tenancy to result from a holding over, the landlord must exercise his election, indicating his consent to the tenancy. Usually this consent will be manifest by accepting rent. American Law of Property, § 3.33. We are faced in this appeal with a hold over tenancy in which the terms of the tenancy are disputed.

The law is clear that when a tenant is possession under a lease continues as a hold over tenant,, the law implies a new lease on the same terms and subject to the same covenants and conditions as those contained in the original lease. Pfingstl v. Chenot, 165 Pa.Super. 222, 67 A.2d 649 (1949). However, if such hold over tenant continues in possession after receiving notice from the landlord of a change in the terms of the lease, the holding over is construed as acceptance of the new terms. Worrell v. Rosenberry, 74 Pa.Super. 152 (1920). If the lessor gives written notice of intent to change the terms and the lessee does not give notice of intent to vacate, the lessee is subject to the terms and conditions of the notice. Diamond v. Drucker, 177 Pa.Super. 226, 110 A.2d 820 (1955). Were it otherwise, lessees could hold lessors hostage by the simple expedient of remaining in possession, thus effectively preventing landlords from modifying any terms of a lease for an indefinite period of time. Tenants would be legally able to obtain a perpetual lease on the former terms, subject only to the Landlord’s right to bring an action in ejectment.

Tenants argue that the present dispute is governed by Pfingstl, where the tenant refused the terms of the new lease offered by the landlord and the court found that the tenant’s continued occupancy did not impliedly consummate an agreement to the proposed new terms. Tenants also argue that the Landlord’s acceptance of payment as the old terms during the hold over tenancy constitutes an acquiescence in the continuing validity of the original lease, and a concession by the Landlord of the Tenants’ right to remain under the previous terms. They also claim that Landlord’s letter of September 24, 1976 (see note 2, supra) is insufficiently precise to constitute necessary formal notice of change in terms.

We do not believe that Tenants’ reliance on Pfingstl is well-founded. In Pfingstl, the tenant continued in occupancy after notice, paying the old rent, for some five years, without any additional correspondence from the landlord. When the tenant moved, after the five year period, the landlord sued for the increased rent he had previously demanded. This Court held that evidence was too meager to determine the terms, if any, of a new lease. The case was remanded to determine, in a new , trial, the terms governing the tenancy. Here, on the other hand, Landlord acted promptly and unequivocally to make his demands clear. Tenants’ claim of insufficiently clear notice fails, since the new lease was sent to them on the same day as the letter of notification, and Landlord subsequently explained the terms to each tenant individually (R. 18, 37a).

We also reject Tenants’ contention that Landlord’s acceptance of rent constitutes acquiescence in a continuation of the old lease during the hold over. In fact, Tenants have paid the new increased monthly rent and are only disputing the terms relating to electricity and taxes. (R. 38a-39a). Landlord has not acquiesced in the nonpayment of the disputed charges but has acted vigorously to assert his claims.

Of the two contested clauses, we consider first the liability for real estate taxes. Tenants argue that Northern Liberties Gas Company v. United Gas Improvement Co., 348 Pa. 433, 35 A.2d 284 (1944) stands for the rule that a lessee has no liability for lessor’s real estate taxes unless the obligation is stated in specific terms. We disagree that Northern Liberties is applicable to the instant facts. In that case, the lessee (who was not a hold over) was clearly obligated to pay real estate taxes by the terms of the lease, and the Supreme Court held that an unstated obligation to pay the lessor’s income taxes would not be implied.

In recent years, rising real estate taxes have placed a financial burden on all who own or lease land within the city. Whether the taxes themselves are absorbed by the landlord or transferred to the tenants by the terms of a lease is determined by the contract between the parties. In this instance, the law maintains that notice by Landlord to Tenants of the tax obligation, followed by continued possession by the hold overs, results in Tenants’ liability for the taxes during the disputed period, i.e. from November 1, 1976 up to the time a tenant either signed a “Form Fifty” lease or (if no such lease was signed) until the present.

We now turn to the disputed claim for electricity charges. Landlord claims he is entitled to payment retroactively to April 1, 1976, arguing that the clear terms of the old leases entitle him to payment for individual consumption as pleasured by the separate meters. Tenants contend that the long period of past payment of level charges creates an implied covenant to continue at that rate. Tenants fail to notice an impprtant distinction in contract law between cases in which parties have agreed on a term, and cases in which they have remained silent as to a material term or have discussed the term but did not come to an agreement. The law will imply a term only for omitted covenants. There can be no implied covenant as to any matter specifically covered by the written contract between the parties. Greek v. Wylie, 266 Pa. 18, 109 A. 529 (1920).

Nevertheless, we do not agree with the lower court that Tenants have an obligation for electricity charges prior to the period of effective notice, i.e. November 1, 1976. We maintain that a landlord cannot sit on his rights for an extended period (in this case, the many years when flat monthly rates for electricity were collected) and then exact additional payment retroactive to any notice of his intent to do so. J. Chalfin, in his concurrence, addressed the issue of whether the long prior course of dealing between Landlord and Tenant could modify the electricity clauses. He concluded (although the result displeased him) that because there is no ambiguity in the words of the old and new leases, prior course of dealing does not survive to modify the terms.

While we do not accept Tenants’ argument based on implied covenant, we do not believe that the tenants’ claim that they do not owe individual electricity charges must be entirely rejected. A lease may be modified by parol, or a landlord may be estopped by his conduct to enforce a particular provision of a lease. Sferra v. Urling, 188 A. 185, 324 Pa. 344 (1936) (holding that oral modification of the terms of a lease may be supported by course of conduct).

Although ordinarily a promise by a creditor to release a debtor from part of liability is unenforceable without consideration, under certain circumstances a party may be estopped, by his conduct, statements, or even silence, to enforce his entire claim, if the other party has been induced to act or forbear and in fact does so in reliance of creditor’s action or absence of action. The doctrine of promissory estoppel will then be. applied to enforce the waiver of the contractual condition so that the party who relied upon the promise will not suffer a serious injustice. Fried v. Fisher, 328 Pa. 497, 196 A. 39 (1938).

Because Tenants had always paid level monthly electricity charges for the period preceding the notice of September 1976, we conclude that Landlord is estopped to collect any retroactive payment prior to the time that the notice became effective, i.e. November 1, 1976.

We must now consider whether Landlord can collect for increased electricity charges for the period following November 1, 1976. We do not find that Landlord’s acceptance of level payments after November 1, 1976 was a waiver of a claim for payment of the larger sum, since Landlord contested the sufficiency of the level payments and took action to make his claim good. We therefore conclude that tenants are obligated to Landlord for the cost of electricity actually consumed from November 1, 1976 until the end of the disputed period.

We affirm the judgment of the lower court imposing liability for real estate taxes on the Tenants. As to that part of the judgment which imposes liability for individually consumed electricity from April 1, 1976 until receipt of landlord’s letter of May 30, 1978, we affirm in part and reverse in part. We hold that tenants are not obligated to pay increased electricity charges prior to November 1, 1976.

      . Paragraph 2 of the original lease:
      Lessee shall and will, within ten days after the same shall be come due and payable, pay all bills rendered for electricity consumed on the said premises during the term of this lease or any extension or renewal thereof and until the flow thereof shall be stopped by the proper authorities.

      . The relevant section of the original lease reads:
      "Unless either party shall give to the other written notice of an intention to terminate ... at least 30 days prior to the end of the term ... this lease shall continue upon the same terms and conditions ... PROVIDED that if Lessor shall have given 30 days written notice prior to the expiration of any term hereby created of an intention to change the terms ... and Lessee shall hold over after such notice ... Lessee shall be considered Lessee under the terms ... as mentioned in such notice for such further period as Lessee may remain in possession ... [Emphasis added].

      . The notification letter, in pertinent part, is as follows:
      This is formal notice to you that your present lease which is a 30 day lease is hereby terminated as of . October 31, 1976. We shall immediately begin to negotiate new leases with you. The new leases will necessarily provide for rental increases and for an overall approach to the market. During the period of time that the negotiations are carried on, you will be considered as a tenant at will, but be allowed to remain in your present location at the present rent. Beginning November 1, we hope to have new leases finalized with each of you.

      . Paragraph 4(a) of the new lease:
      4. Additional Rent.

      (a) Electrical service. Lessee shall pay as rent all charges for electricity consumed by Lessee, which electricity is separately metered. Lessee shall pay for same at the prevailing retail rate and shall remit the amount due on a monthly basis ten (10) days after presentation of the bill for same from Lessor. In the event that said bill is not paid within the time set forth herein, Lessor shall be under no obligation to continue to furnish to Lessee electrically service but may after ten (10) days notice at Lessor’s sole discretion terminate all power provided to lessee.

      . Paragraph 4(c) of the new lease:
      (c) Taxes. Lessee shall pay its proportionate share of all real estate and city and school taxes assessed against the land and building forming the Reading Market, of which the demised premises is a part. Lessee’s proportionate share shall be determined by the percentages set forth above for determining the percentage of insurance premiums due from Lessee. Lessee shall pay his proportionate share of any and all other taxes or substitutes therefore which shall pursuant to present or future law or otherwise be levied, charged or assessed, imposed upon, or grow or become due or payable out of or in respect of or become a lien on the Reading Market or of the building or land of which the demised premises is a part or on the buildings or improvements now or hereafter erected upon the ground on which the present market and adjoining parking lot or the sidewalks and street adjacent thereto.

      . The significance of this date is never explained in the record below. It is four months prior to Railroad Market Inc.’s lease with the Reading Company, and seven months before Landlord’s notice to Tenants became effective.


author: MONTEMURO, Judge:

text:
    456 A.2d 558
    Dorothy WORLEY v. James AUGUSTINE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed Feb. 4, 1983.

      Sally A. Frick, Pittsburgh, submitted a brief on behalf of appellant.
    Daniel Lee Haller, Aliquippa, for appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of support in favor of a minor, entered in the Court of Common Pleas, Allegheny County.

The present suit was commenced on October 21, 1979, when appellee, Dorothy Worley, filed a civil complaint for support. She alleged that appellant, James Augustine, was the father of her minor child, James Worley, and thus liable for support of the child. In his answer to the complaint, appellant set forth new matter. In the new matter, appellant stated that the child, James Worley, was born on July 2, 1969, to himself and the appellee. At the same time, he raised the statute of limitations as a defense to the action. Subsequently, both parties filed motions for summary judgment on the question of the statute of limitations. By opinion and interlocutory order, the lower court, on November 5, 1980, denied appellant’s motion and partially granted appellee’s motion. It declared that the following were uncontroverted facts on the basis of the pleadings:

1. James Worley was born on July 2, 1969.
2. Defendant [appellant] signed an acknowledgment of paternity on September 7, 1970.
3. This suit was instituted on October 21, 1979.
4. Defendant [appellant] acknowledged paternity again in his answer in this case.

The lower court ordered that the parties proceed to a counselor or hearing officer to determine the amount of support to be paid by appellant. Appellant then filed a motion for certification of an interlocutory order, an application for stay of an interlocutory order, and a petition for permission to appeal from an interlocutory order, all of which were denied by the lower court. On February 7, 1981, the hearing officer recommended that appellant pay one hundred ($100) dollars per month for support of the child. Appellant filed timely exceptions to the recommendation. By order dated June 4, 1981, the lower court affirmed the hearing officer’s recommendation and denied appellant’s exceptions. This appeal followed.

On appeal, appellant concedes that he has no desire to contest paternity. His position is, as he has maintained throughout all proceedings in the lower court, that the present action is barred by the statute of limitations set forth in 42 Pa.C.S.A. § 6704(e). Specifically, he argues that his admission of paternity in the pleadings does not constitute a written acknowledgment for purposes of the statute. The relevant subsection is set forth below:

(e) All actions commenced under this section shall be brought within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to support of the child or shall have acknowledged in writing his paternity, in which case an action may be brought at any time within two years of any such contribution or acknowledgment by the reputed father.

42 Pa.C.S.A. 6704(e).

It is well settled that our purpose in determining the meaning of statutory language is to ascertain and effectuate the intention of the Legislature. Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979); Commonwealth Higher Education Assistance Agency v. Abington Memorial Hospital, 478 Pa. 514, 387 A.2d 440 (1978).

As the language of § 6704(e) itself makes no attempt to limit or define what constitutes an acknowledgment in writing, we looked to the legislative history for the answer. However, a thorough search of the subsection’s history revealed no mention of any particular form of writing or type of acknowledgment required. Similarly, the case law involving former criminal statute 18 Pa.C.S.A. § 4323(b), on which the relevant portion of 42 Pa.C.S.A. was modeled, provided no guidance. See 204-206 Legislative Journal, Senate (March 7, 1978); 3168-3171 Legislative Journal, House (November 15, 1977).

We then looked to the entire statutory scheme. Title 23 Pa.C.S.A. § 8302 does provide for the acknowledgment of paternity on specific forms prescribed by the Department of Health. This statute however was passed after 42 Pa.C. S.A. § 6704(e), thus the legislature could not have been referring implicitly to it when it spoke of written acknowledgments in 42 Pa.C.S.A. § 6704(e). In addition, both the legislative remarks and the comments following 23 Pa.C. S.A. § 8302, and the subsequent section 8303, indicate a primary concern here with notification in a termination of parental rights proceeding. See 846 Legislative Journal, Senate (October 2, 1979); 23 Pa.C.S.A. § 8302 and 8303, 1980 comments.

Essentially, our only guidance is found in the Statutory Construction Act. There, in the definitions section, the word “written” is defined as, “Every legible representation of letters or numerals upon a material substance, except when used in reference to the signature of an instrument.” 1 Pa.C.S.A. § 1991.

We shall apply the above stated principles to the case sub judice. Appellant, under the heading of “new matter,” states that “James Worley was born July 2, 1969 to plaintiff and defendant.” Obviously, this qualifies as a legible representation of letters or numerals upon a material substance. What appellant attempts to assert however is that the statement represents a- mere failure to contest paternity, as opposed to an acknowledgment of it. This is absurd. One cannot say that a child is born unto himself without at the same time conveying a recognition of the fact, or at least the belief, that he fathered the child. Children are not born to persons that had nothing to do with their conception. Accordingly, we conclude that appellant’s statement in the pleadings here qualifies as an acknowledgment in writing of paternity for purposes of 42 Pa.C.S.A. § 6704(e). .

Having decided that there was a written acknowledgment of paternity here, we must now face the question of whether the present suit was commenced within two years of such acknowledgment.

The subsection provides ■ that “an action may be commended at any time within two years of any such acknowledgment by the reputed father.” 42 Pa.C.S.A. § 6704(e). Obviously, the present suit was commenced before the acknowledgment here. Appellant would favor a construction which would disallow the present suit. In order to do so, we would have to, in effect, construe the words “within two years of” to mean “within two years after.” This we cannot do. Although it is perhaps true that the more usual situation will be where suit was filed after acknowledgment, the term “within” by definition, looks both forward and backward in time. We cannot insert the word “after” as a qualifier. A court has no power to insert a word into a statutory provision where the Legislature has failed to supply it. In Re Township of Upper Chichester, 52 Pa.Commw. 121, 415 A.2d 1250 (1980); Peabody v. Tucker, 4 Pa.Commw. 609 (1972) aff’d; 447 Pa. 398, 289 A.2d 438 (1972).

There is an additional reason why the construction favorable to appellant must be rejected. As a practical matter it would lead to an absurd or unreasonable result. In any case where, as here, a defendant acknowledges paternity in the pleadings, plaintiffs suit would be dismissed because the suit was not commenced within two years “after” such acknowledgment. Plaintiff would then simply re-file her action. This would result in a considerable waste of both the litigants’ resources and judicial resources. In ascertaining the intention of the General Assembly, we are entitled to presume that it did not intend a result that is “absurd, impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922(1).

Finally, a cautionary note is in order. We concern ourselves today only with 42 Pa.C.S.A. § 6704(e), and its unusual definition of a limitations period in terms of a written acknowledgment. Our holding in this case is not to be interpreted as determining the effect of admissions in the pleadings on any other statute of limitations or other defense to an action.

Order affirmed.

      . At the time suit was instituted 42 Pa.C.S.A. § 6704(e) read as quoted. Effective December 4, 1980, the first clause was amended to read, “All actions to establish the paternity of a child born out of wedlock brought under this action must be commenced within six years of the birth of the child, ... ”. The remaining portion of the subsection was unchanged. Appellant’s argument in the lower court referred to the present 42 Pa.C.S.A. § 6704(e). His position then was that § 6704(e), as it existed at the time of suit, was "encompassed” in the present § 6704(e). His brief on appeal, however, refers to § 6704(e) as it existed at the time of suit, not as it presently exists. Although somewhat confusing, the destinction is unimportant for purposes of this appeal since only that portion of the subsection which remained unchanged is at issue.


author: VAN der VOORT, Judge:

text:
    456 A.2d 561
    COMMONWEALTH of Pennsylvania v. Bennie Davis GRAVES, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed Feb. 4, 1983.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Dara A. DeCourey, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

A jury found appellant guilty of third degree murder for the death of Lynette Weston, age 10, and of first degree murder for the death of Lloyd Weston, age 10, and recommended a death sentence on the first degree murder conviction. Trial Judge Joseph Ridge refused post-trial motions for a new trial and in arrest of judgment, but did grant a motion to vacate the death sentence.

Appellant raises four contentions before this court. Issues designated I and IV are interrelated and will be discussed jointly.

I and IV

Appellant was the stepbrother and boarder of Yvonne Weston, the mother of the two children. At about 11:00 P.M. on February 16, 1979, Mrs. Weston left her home, entrusting the care of the two children to the appellant. The children were asleep. From about 11:30 P.M. to about 4:45 A.M. the next morning, Mrs. Weston’s brother Daniel Anderson was in the home drinking beer and listening to records. When he departed, the living room was in reasonably good order; appellant was present; and the children apparently sleeping in their beds. At about 7:00 A.M. on February 17, 1979, when Mrs. Weston returned home she found the living and dining rooms in complete disarray; the bodies of the two children were lying on the living room floor, and the appellant was missing.

Shortly thereafter appellant telephoned Mrs. Weston several times from some undisclosed phone, asking if the children were all right. He claimed he had been visited in the home by three men looking for another of Mrs. Weston’s brothers who forced him to leave the home. On a fourth phone call, appellant was advised that the children were dead; he revealed his whereabouts. A police car picked him up at that location and took him to Police Station No. 5. He was locked up for about twenty minutes and then taken to Police Station No. 1, where he was interrogated through most of the day, finally being placed formally under arrest at 5:30 P.M.

Prior to the formal arrest, he surrendered hair and saliva samples and fingernail clippings, and agreed to the making of wax impressions of his fingernails. The police also took photographs of several fresh scratches on his back. These bits-of “physical evidence” were used as part of the circumstantial evidence by which the prosecution attempted to identify the appellant as the perpetrator of the murders. The appellant moved to suppress their use on the ground that they were the product of an illegal arrest and obtained without a search warrant and without his valid consent.

Whether such evidence, obtained following an illegal arrest, resulted from such arrest or was sufficiently removed from the arrest depends on the circumstances of the case. Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980) (Opinion in support of affirmance); Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978).

The prosecution called ten witnesses on the motion to suppress, including Mrs. Weston who went to Station No. 1 and talked with appellant in the room in which he was confined. Appellant testified that he had been beaten by several of the investigating officers, and consented to the taking of the samples so that the beatings and the interrogation would stop.

Judge Ridge heard all the witnesses; and he concluded that, despite the illegal arrest, the samples were taken with the voluntary and valid consent of the appellant. His opinion cites Commonwealth v. Tribblett, 242 Pa. Superior Ct. 164, 363 A.2d 1212 (1976) and Commonwealth v. Burgos, 223 Pa. Superior Ct. 325, 299 A.2d 34 (1972). See also Commonwealth v. Pytak, 278 Pa. Superior Ct. 476, 487, 420 A.2d 640 (1980) and Commonwealth v. Woods, 240 Pa. Superior Ct. 72, 76, 368 A.2d 304 (1976). As pointed out in Tribblett, 242 Pa. Superior Ct. at 167, 363 A.2d 1212, deference should be given to the decision of the hearing court, since that court had a firsthand opportunity to observe the appearance and demeanor of the witnesses, and therefore, to evaluate the credibility of the witnesses.

We find that the trial judge did not err. The current case is more in line with Bogan, supra, than with Nelson, supra. In Bogan, the court assuming the arrest was illegal, found a confession resulted from an “intervening act of a free will.” Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963). Bogan had been in custody on other charges when he gave a confession to the crime from which he appealed his conviction. Whereas in Nelson, the defendant was unknown to the police until he was illegally arrested. The court found that but for the improper arrest, a statement and physical evidence would not have been forthcoming. Here appellant was a logical candidate for questioning; he was the last known person present with the victims and he explained his absence with an unusual tale. Under these circumstances we cannot overrule the lower court’s finding that the arrest did not contaminate appellant’s voluntary consent to the taking of the various samples.

We also must agree with the Commonwealth that the physical evidence and appellant’s consent to the taking of the samples were not vitiated by the fact that he was not arraigned within six hours after his initial arrest. The appellant argues to the contrary, contending that under Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974), and distinguishing Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), that any evidence obtained during a delay between arrest and arraignment, must be suppressed if (1) the delay was unnecessary; (2) the evidence was prejudicial; and (3) the evidence was reasonably related to the delay.

In Commonwealth v. Rhem, 283 Pa. Superior Ct. 565, 578, 424 A.2d 1345, 1351-52 (1981), this court held:

By its very terms, the six-hour rule is only applicable to inculpatory statements (Fn. 4) and not physical evidence. The inherent coercion during an unnecessary delay which may result in an invalid waiver of important constitutional rights is simply not present in Fourth Amendment cases where the search proceeds despite the accused’s objections. Thus, the coercive influence against which “Futch” and “Davenport” were designed to guard is absent in the instant case since appellant was not asked to waive any rights. The court properly denied the motion to suppress.
(Emphasis supplied).
4. The rule probably applies to uncounseled lineup identifications as well. See “Futch”, supra.
(Footnote in original).

Appellant contends that the giving of his consent was a product of a delay exceeding six hours and should be viewed as an invalid waiver of an important constitutional right. Davenport, supra, clearly addressed itself only to statements given by a defendant. Rhem, supra, involved the search of a suspect when brought to the police station, he was not free to refuse the search. Here, appellant argues that he was free to refuse the taking of samples but due to the pressures of the situation he consented. He concludes that the Davenport rule must be extended to such situation.

The courts of this Commonwealth have held that fingerprints are not of a testimonial nature involving the Fifth or Sixth Amendment, Commonwealth v. Ellis, 445 Pa. 307, 284 A.2d 735 (1971); and that blood samples are not testimonial evidence coming under the protection of the Fifth Amendment and therefore do not require Miranda protection. Commonwealth v. Funk, 254 Pa. Superior Ct. 233, 385 A.2d 995 (1978). The purpose of an early arraignment is to advise the appellant, among other rights, of his right to counsel. Rule 140, Pa.R.Crim.P. In keeping with the rationale behind Ellis and Funk, we find that as the right to counsel has not been applied to the taking of physical evidence, a greater than six hour delay in advising of the right to counsel, does not require physical evidence taken from a defendant to be suppressed.

II The Expert Testimony

Over the objection of appellant and after an extended examination of their qualifications on voir dire outside the presence of the jury, Judge Ridge permitted the prosecution to put in the testimony of four expert witnesses, as follows:

Dr. Michael N. Sobel, a dentist specializing in orthodontics, and forensic odontology employed from time to time as a consultant and expert on dental problems, bite marks and related topics;

Dr. Robert Levine, a criminalist employed by the Allegheny County Crime Laboratory, with considerable experience in making comparisons of tool-marks and firearm-related marks;

Dr. Lowell J. Levine, from New York, a dentist specializing in forensic odontology; and

Dr. Homer Richardson Campbell, Jr., a dentist and Board certified specialist in forensic odontology for the State of New Mexico, with experience in bite-mark cases.

Scratch marks were found on the back of Lloyd Weston’s body near the base of the neck. Dr. Sobel made an impression or cast of one of those scratch marks, using a compound of the same general type as dentists use in making impressions of teeth. He then compared that impression with an impression made from the nail on appellant’s fourth (left) finger, using among other things, a comparison microscope. On the basis of these comparisons he testified that: “it was highly likely that the nail of the fourth finger, left hand, of Bennie Graves had made the mark in the neck of Lloyd Weston, Jr.” (N.T., p. 1180)

Dr. Robert Levine, characterizing a fingernail mark in the skin as “a tool mark” (N.T., p. 1260), based upon an examination of the impression made by Dr. Sobel, and of a wax impression of appellant’s left little finger, again using the comparison microscope concluded that: “the fingernail impression as seen on the wax mold had the same class characteristics as the fingernail.” (N.T., p. 1275). He testified further that “there is probably a fair degree of probability that this nail or any nail of this shape made this kind of mark____” (N.T., p. 1279) Over appellant’s objection, he was later permitted to say that “this would be one (case) of high probability.” (N.T., p. 1286), although the nail could not be characterized as “unique”. (N.T., p. 1287)

Dr. Lowell J. Levine testified based upon his examination of finger nail clippings, photographs, slides and Dr. Sobel’s impression, testified to a “fractured edge” on the impression of appellant’s finger nail, and to his opinion that “it is highly probable” that appellant’s finger nails made the mark on the neck of Lloyd Weston, Jr. (N.T., p: 1368); and that it was “very unlikely” that “some person other than Bennie- Graves ... made these marks.” (N.T., p. 1371)

Dr. H.R. Campbell, Jr. utilizing photographs and slides of the decedent’s body and finger nail clippings of appellant, testified to his opinion “that the left-little finger and the left-ring finger (of appellant) were consistent with the injury patterns shown in the photographs” of the deceased (N.T., p. 1440); that there was “a high degree of certainty in this case.” (N.T., p. 1441); and finally that there was “[a]n extremely high degree of probability to the point of practical impossibility of finding two other nails on two fingers adjacent to each other that would make these marks.” (N.T., p. 1448).

Appellant contends at the appellate level, as he did below, that the opinion testimony of these four doctors should not have been received.

The Commonwealth contends, as the court determined below, that the witnesses were “experts” in the broader field of “tool-marks”; that a finger nail and the impression it leaves, are analogous to “tool-marks”; and that the general procedures utilized in this case to make comparisons and draw conclusions, are the same as used in tool-mark identification. The Commonwealth contends the expert witnesses have special qualifications, as to which the jurors needed and were entitled to assistance in the form of expert testimony.

Appellant concedes that the initial question of whether a witness is qualified to testify as an expert lies within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977). He argues however that in this case: 1) none of the witnesses had the requisite special training, knowledge, and experience on the subject of finger nail identification, Commonwealth v. Crawford, 468 Pa. 565, 364 A.2d 660 (1976); 2) there is no scientific recognition of a method of identification through finger nails, Frye v. United States, 293 F. 1013 (D.C.1923); People v. Marx, 54 Cal.App.3d 100, 126 Cal.Rptr. 350 (1975) (a “bite-mark” case); People v. Wesley, 103 Mich.App. 240, 303 N.W.2d 194 (1981) and 3) there are no established minimum standards in this field. At first glance, it would appear that the identification of teeth marks comes more often within dentists usual field of knowledge than does the identification of finger nail scratchings. Nonetheless, the methods and techniques used and evaluated in this present case,—the photographs; the casts of the wounds; the preparation of wax impressions of appellant’s finger nails; the superimposing of images of the molds of the wound and the finger nail by use of comparison microscope—all were consistent with standards of general scientific acceptance in the field of tool-marks, of which, according to the witnesses, testimony as to finger nail wounds is a part. These were comparisons the witnesses were accustomed to make.

The current case is quite different from Crawford, supra, where the witness testified as an expert regarding the dating of finger prints only to later admit that such a procedure was not possible. Such testimony was held to be inadmissible. Here, while the comparison between scratch and nail may have been beyond the ability of the average juror, the witnesses had a “reasonable pretention to specialized knowledge” in making such comparisons. See: Fady v. Danielson Construction Company, 224 Pa. Superior Ct. 33, 39, 302 A.2d 405 (1973). See also Haeberle v. Peterson, 262 Pa. Superior Ct. 247, 250, 396 A.2d 738 (1978); and Commonwealth v. Washington, 235 Pa. Superior Ct. 339, 344 n. 1, 340 A.2d 896, 898 n. 1 (1975). These witnesses were qualified to testify as they did and it was for the jury, who had the enhanced comparisons before it, to determine what weight to give to such testimony.

We also agree with the lower court that this area is one which is scientifically recognized. Wound marks here referred to as tool marks, whether made by a firearm, knife, blunt instrument or finger nails, are a proper area in which experts may assist juries. Our attention has been invited to Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), where our Supreme Court granted a new trial after a conviction for murder. In that case, the trial court admitted opinion testimony of an expert concerning spectography, or voice print analyses. In the Topa case, Chief Justice Jones quoted Frye, reading in part, that:

“while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which, the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye v. U.S., 54 App.D.C. 46, 293 F. 1013, 1014 (1923).”
Id., 471 Pa. at 231, 369 A.2d 1277.

More recently the Pennsylvania Supreme Court has found refreshing recollection by hypnosis has not gained sufficient acceptance in the scientific or legal community. Commonwealth v. Nazaroviteh, 496 Pa. 97, 436 A.2d 170 (1981).

Appellant has overlooked a subtle, but very important distinction. In Topa, supra, the heart of the controversy was whether a person’s voice recorded by a mechanical device was so distinguishable that it would allow one to identify its owner. Here the question is not, given a certain finger nail, whether its owner could be identified, but instead given a certain scratch and a known finger nail(s), can it be determined to a certain degree of probability that the nail caused the scratch. To demonstrate this distinction, we will review two cases from other jurisdictions upon which appellant relies.

People v. Marx, supra, involved a situation similar to the present, except the wound consisted of teeth marks and not scratches. The authorities had a victim with a bite-mark and a suspect whose teeth matched the bite mark. Both the bite mark and the suspect’s dentition reflected the same irregularity. The court noted that whether the specific technique of comparison was generally accepted or recognized was not determinative of the admissibility. The witnesses relied upon approved, established, scientific techniques (similar to those used here) to solve a particular problem, which though novel, was well within the capability of the techniques employed.

In contrast is People v. Wesley, supra, there the court found that finger nail identification was not scientifically recognized and was therefore inadmissible. The investigating authorities found a finger nail during the course of their investigation. Samples taken from a suspect were compared with the nail found in the investigation, much in the same manner as finger prints or hair samples are compared. The court found an absence of recognition and acceptance of finger nail identification in the forensic community. The court was dissatisfied that given a finger nail the experts could determine who it belonged to.

The distinction we draw here is as follows: in the Marx, supra, situation we are not dealing with an attempt to identify an individual based on some of his personal characteristics as the case was in Wesley, instead we have a wound, which the Commonwealth refers to as a “tool mark” and we have a suspected weapon (here a finger nail) and we wish to know the probability that the suspected weapon inflicted the injury. To relate this to Pennsylvania law, we need only to look at a few cases.

In Topa, supra, the accuracy of a voice print identification was questioned. There the Commonwealth claimed that given a voice print it could be determined that a certain individual made the recording. The Supreme Court was unwilling to accept this premise. While, in other situations, testimony as to size and shape of a wound in the body and the likeness of the thing causing the wound is frequently admitted to demonstrate that a suspect used a certain method in perpetrating a crime. Commonwealth v. Hoyle, 274 Pa. Superior Ct. 220, 223, 418 A.2d 376 (1979) (screwdriver); Commonwealth v. Oates, 269 Pa. Superior Ct. 157, 409 A.2d 112 (1979) (knife). We find no reason to distinguish between a distinctive knife and an irregular finger nail. (See footnote 2, supra) Therefore, we find it unnecessary to resolve whether finger nail identification (which arose in Wesley) is generally recognized.

Appellant further complains that the prosecution was permitted to rehabilitate Dr. Robert Levine’s testimony from “a fair degree of probability” (N.T. p. 1275) to “high probability” (N.T. p. 1286). The extent to which a party may cross examine its own witness lies generally within the discretion of the trial judge: Commonwealth v. Barber, 275 Pa. Superior Ct. 144, 418 A.2d 653 (1980); Commonwealth v. Quartman, 253 Pa. Superior Ct. 460, 385 A.2d 429 (1978). We find no abuse of discretion, and no demonstration of improper harm to appellant as the three other expert witnesses for the prosecution testified substantially as did the rehabilitated Dr. Robert Levine.

Ill, Sufficiency of Evidence to Sustain Conviction.

Recognizing the principle that the verdict winner is entitled to all reasonable inferences to its advantage from the evidence, Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974), appellant argues, nevertheless, that all of the evidence of guilt presented in this case is circumstantial and insufficient to prove beyond a reasonable doubt that he is the individual who committed these two homicides.

Initially, we note that circumstantial evidence may be sufficient to establish, beyond a reasonable doubt a crime, and that the accused was responsible for the crime. Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979); Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1976). Here, the Commonwealth’s evidence established the following.

The appellant had been caring for the victims on the night when they were strangled to death. At 4:45 A.M., Daniel Anderson left the Weston home, leaving appellant alone with the children. At 7:10 A.M., the victims were discovered dead by their mother; appellant was not on the premises. No one else had been seen entering the house between 4:45 A.M. and 7:10 A.M. After several calls, appellant was advised of the children’s deaths. He claimed that he was forced to leave the house. A sample of appellant’s pubic hair was found to be consistent with a hair found on the female victim. A bathrobe which appellant had been wearing earlier contained blood stains, consistent with the type of the female victim and inconsistent with appellant’s type. Dried blood was found under the finger nails of the female victim (its type was not determinable); fresh scratches were found on appellant’s upper body. Such scratches did not match appellant’s girl friend’s nails and she denied having made them. Scratch marks found on the male victim were consistent with the characteristics of appellant’s finger nails.

We find that the evidence was sufficient beyond a reasonable doubt to show that appellant was responsible for the death of the two young victims. We must also inquire whether the Commonwealth proved the requisite intent for the killing of Lynette Weston, 18 Pa.C.S. § 2502(c) and for the premeditated killing of Lloyd Weston. Id. § 2502(a).

The evidence, as it differs between the two deaths does not appear to support the different verdicts: murder in the third degree (Lynette) and murder in the first degree (Lloyd). A jury’s verdict, in a criminal case will not be set aside merely because it appears to be inconsistent with another verdict of the jurors. So long as the challenged verdict is supported by the evidence, we will not on review delve into the thought process of the jury. Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971); Commonwealth v. Shaffer, 279 Pa. Superior Ct. 18, 420 A.2d 722 (1980).

Murder of the third degree has been defined as “an unlawful killing with malice expressed or implied, but absent any specific intent to take a life.” Commonwealth v. Nan, 473 Pa. 1, 9, 373 A.2d 449 (1977). As to the death of Lynette Weston, we find no need to expound on the facts already given; they clearly show the existence of malice.

The conviction for murder of the first degree for the death of Lloyd Weston requires a little more discussion. The trial court, relying on Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970), found the fact that the victim had been manually strangled to death, raised a presumption that the murder was both intentional and malicious. Appellant argues that the verdict was based on conjecture that the killing occurred to “silence a witness” who viewed the first crime.

Where there is no direct or concrete evidence of a specific intent to kill the fact-finder must look to the act itself and all the surrounding circumstances. Commonwealth v. Meredith, 490 Pa. 303, 416 A.2d 481 (1980); Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974). It is the law of this Commonwealth that premeditation and deliberation may be found where there is a conscious effort to cause death; this design can be formed in a very short time. Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976). Where a deadly force is knowingly applied by a defendant to his victim, the intent to kill may be as evident as if the defendant had verbally announced his intent. Meredith, supra. Meredith offers special guidance to this case; there the defendant was convicted of the beating death of a two and one half (2V2) year old child. On appeal, it was held that the number and severity of blows, the size and age of the victim permitted a finding that a deadly force had been applied to a vital part of the body and allowed the jury to infer an intent to kill. Likewise here, we believe the jury was entitled to find, where a ten year old child is strangled to death, the specific intent to kill required for a conviction for first degree murder.

Judgment of sentence affirmed.

      . Appellant also telephoned Daniel Anderson, telling him to "go over to the house with Cookie (Mrs. Weston)’’ (N.T., p. 556).

      . The impression of the left little finger showed a “fracture edge”, or "tear edge", according to the -witnesses, which formed "a unique surface" “or unique edge."- (N.T., p. 1274).

      . "The classic definition of malice was expressed in Commonwealth v. Drum, 58 Pa. 9, 15 (1868), as ‘not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty See, e.g., Commonwealth v. Polimeni, [474 Pa. 430, 378 A.2d 1189 (1977) ] supra; Commonwealth v. Coleman, 455 Pa. 508, 318 A.2d 716 (1974)." Commonwealth v. Myers, 266 Pa. Superior Ct. 566, 572, 405 A.2d 1252, 1255 (1979).