author: LIPEZ, Judge: PRICE, Judge,

text:
    455 A.2d 670
    Wilbert JANSON, Jr. and Wilbert Edward Janson, Appellants, v. Robert F. HUGHES and Chemargro Corporation.
    Superior Court of Pennsylvania.
    Argued June 10, 1980.
    Filed Dec. 17, 1982.
    Reargument Denied Feb. 23, 1983.

      Thomas J. Burke, Ardmore, for appellants.
    Charles W. Craven, Philadelphia, for appellees.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

Plaintiff commenced this trespass action for injuries sustained when the vehicle he was operating, while stopped at a red light, was struck from the rear by defendant Robert F. Hughes, who was driving a vehicle owned by his employer, defendant Chemargro Corporation. The jury awarded plaintiff $5,000. Plaintiff moved for a new trial on the basis of several issues related to damages. After denial of those motions and entry of judgment, plaintiff took this appeal, in which he has abandoned all but one of his claims—that the trial judge erred in precluding the jury from considering impairment of plaintiff’s earning power as an element of damages. We agree with this contention, and hence we reverse and grant a new trial limited to the issue of damages.

The test for impaired earning capacity is whether the plaintiff’s “economic horizon” has been shortened. See generally Frankel v. Todd, 393 F.2d 435, 438-40 (3d Cir.1968), cert. den’d, 393 U.S. 855, 89 S.Ct. 137, 21 L.Ed.2d 120 (discussing Pennsylvania Supreme Court cases which developed this standard). The court below held that there was no evidence that plaintiff’s economic horizon had been limited in any way. We disagree. One of plaintiffs medical experts, Dr. Snedden, testified that some symptoms of plaintiffs back and neck injury were permanent, and as a result plaintiff would always have to restrict his occupational activities in the future. Plaintiff would be unable to do heavy work, such as lifting, because it would undoubtedly cause his symptoms to flare up and could lead to total disability. Plaintiffs other medical expert, Dr. Russo, concurred in the findings of permanent injury and plaintiffs resulting inability to do certain types of work.

The testimony of Doctors Snedden and Russo was clearly sufficient to raise a jury question as to impairment of plaintiffs earning power. See Wright v. Engle, 256 Pa.Super.Ct. 321, 326-27, 389 A.2d 1144, 1146-47 (1978); Frankel v. Todd, supra. In holding to the contrary, the trial judge did not rely on any authority in his opinion, although in ruling on the question at trial, he had stated that his decision was supported by Baccare v. Mennella, 246 Pa.Super.Ct. 53, 369 A.2d 806 (1976). That case is easily distinguishable, since it merely held that “because there was no evidence regarding the probability that the disability would persist in the future the jury could not consider any future loss of damages.” Id., 246 Pa.Superior Ct. at 58, 369 A.2d at 808. Here such evidence was provided by plaintiffs medical experts.

Defendants argue that evidence of permanent injury by itself is insufficient, and the evidence must also show that the injury will prevent the plaintiff from engaging in a specific type of work. Plaintiffs medical experts, Doctors Snedden and Russo, also met this latter requirement, because of their specific testimony that plaintiffs injury would preclude his engaging in work involving heavy lifting. While this evidence, like most evidence of impairment of earning power, is imprecise and difficult to evaluate, it is nevertheless sufficient under the Pennsylvania Supreme Court cases discussed in Frankel v. Todd, supra, cited with approval in Wright v. Engle, supra, 256 Pa.Super.Ct. at 327 n. 2, 389 A.2d at 1147 n. 2.

Judgment reversed, and a new trial, limited to damages only, is ordered.

PRICE, J., filed a dissenting opinion.

PRICE, Judge,

dissenting:

The instant appeal is from the entry of judgment following the order of the Court of Common Pleas of Montgomery County denying a motion for new trial filed by appellants, Wilbert Janson, Jr. and Wilbert Edward Janson. Appellants contend that a new trial is required because the trial judge committed reversible error in removing from the jury’s consideration the issue of the future impairment of Wilbert Edward Janson’s earning capacity. I disagree and would thus affirm.

On February 16, 1973, Wilbert Edward Janson was driving to work in a Volkswagen bus owned by his father, Wilbert Janson, Jr. While stopped at a traffic light, his bus was struck in the rear by a vehicle operated by appellee Robert F. Hughes, an employee of Chemargro Corporation, the owner of the subject vehicle and an appellee herein. Neither vehicle was seriously damaged and Janson drove on to his place of employment and worked throughout the evening with no complaint of injury. At some point thereafter, Janson began to experience neck and back pain and thus sought treatment from his family physician. Ultimately, Janson was referred to Dr. Hal Snedden, an orthopedic surgeon, who diagnosed his problem as “an instability of the cervical spine due to a ligimentous injury,” (N.T. 95), allegedly sustained in the accident. Appellants thus commenced the instant action seeking damages for permanent injuries, pain and suffering, past and future medical expenses and future impairment of earning capacity. The trial judge precluded the jury from considering future impairment of earning capacity and a $5,000 verdict was returned in favor of appellants. Judgment was entered following the denial of post-verdict motions and appellants appealed.

Impairment “of earning capacity refers to the disadvantage a plaintiff suffers in competing with uninjured persons in the employment market.” Heckman v. Federal Press Company, 587 F.2d 612, 618 (3d Cir.1978). Thus, “[i]n order to collect for the loss of future earnings, a plaintiff must establish that his economic horizon has been shortened.” O ’Malley v. Peerless Petroleum, Inc., 283 Pa.Superior Ct. 272, 280, 423 A.2d 1251, 1255 (1980). While there exists no litmus test for determining whether this burden has been met, it is clear that more is required than proof that the plaintiff’s condition is permanent. In Kmiotek v. Anast, 350 Pa. 593, 39 A.2d 923 (1944), for example, plaintiff, an unskilled workman, fractured his skull when he fell down a flight of stairs in a theatre. As a result, plaintiff suffered from headaches and dizziness following the accident, but he apparently lost no time from work and he enjoyed an increase in earnings. Furthermore, although one doctor testified that plaintiff’s earning capacity had been impaired, a second physician posited that plaintiff had fully recovered from his injuries and thus suffered no impairment of earning capacity. Concluding that there was no evidence that plaintiff’s earning capacity had been impaired, the Kmiotek court articulated its reasoning thus:

The case was tried more than three years after the injury. While the plaintiff lost three weeks’ work immediately after the accident, he had worked constantly thereafter except for one week ... and was receiving higher wages than before he was injured. A physician testified plaintiff had “... made a full and complete recovery from this injury” and that there was “... no lessening of his earning capacity.” Another testified that his injury “... interfered with the man’s earning capacity.” While the record would support a finding of permanent injury, that is not equivalent to a finding that earning power is impaired. Plaintiff had the burden of proof but the evidence was not sufficient to permit the jury to include that element of damage in its verdict; it would have been mere guess-work.

350 Pa. at 598-99, 39 A.2d at 924 (emphasis added).

Similarly, in Carroll v. Pittsburgh Railways Company, 200 Pa.Superior Ct. 80, 187 A.2d 293 (1962), this court perceived that the record was “devoid of any evidence upon which the jury could have predicated a finding that the future earning power of the husband-appellant had been impaired.” Id., 200 Pa.Superior Ct. at 83-84, 187 A.2d at 294. In Carroll, the appellant, a welder, was injured in a trolley accident. He missed no time from work, claimed no loss of wages and, apparently, adduced no evidence establishing a potential loss of earnings or an inability to accept employment opportunities as a result of his injuries. Indeed, the only pertinent evidence presented was testimony that appellant’s back would “get more rigid and become stiffer.” Id., 200 Pa.Superior Ct. at 83, 187 A.2d at 294. Even accepting this testimony and ignoring the fact that it was contradicted by another physician, however, we held that proof of permanent injury does not establish that one’s earning capacity has been impaired. Id. Accordingly, we affirmed the trial judge’s decision refusing to submit to the jury the issue of impairment of earning capacity.

In the case sub judice, the record establishes that, at the time of the accident, young Janson was in the tenth grade and was employed on a part-time basis as an usher in a movie theatre. He subsequently worked as a stockboy for Woolworth’s, as a dishwasher in a country club, and, in the summer, he secured a job as a painter. When Janson entered the eleventh grade, he began working in a hardware store where he remained for a period of three years. Upon leaving the hardware store, Janson secured a position with the Lug-All Hoist Company where, at the time of trial, he was employed in the office. With the exception of days on which he had an appointment with his physician or a scheduled treatment, Janson lost no time from work as a result of his injuries. There was, moreover, no direct evidence that appellant was inhibited in the performance of his job-related duties or that there were jobs which he would have attempted to secure but for his injuries.

To be sure, appellant’s medical witnesses testified that appellant’s condition would continue to deteriorate, particularly if he did heavy work. Appellee’s medical witness testified, however, that appellant was completely recovered and that he found “no physical evidence or radiographic evidence that [appellant] had any crippling after effects.” (N.T. 456). In view of this conflicting testimony, the complete absence of evidence as to appellant’s present earnings, his potential earnings, or the employment opportunities allegedly beyond his reach because of his physical limitations, I would conclude that appellant failed to sustain his burden of proof on this issue. Under the majority opinion, the jury will be permitted to determine the extent to which appellant’s earning capacity had been impaired, and that determination will necessarily have been based on speculation. I believe the trial judge thus properly refused to submit that issue to the jury.

Accordingly, I would affirm the judgment of the court of common pleas.

      . Throughout these proceedings, the appellants and appellees have referred to the injured party as if he were the sole plaintiff, although technically his father was also a plaintiff because the injured party was a minor when the action was commenced. For the sake of simplicity, we are following the same practice as the parties.

      . A dictum in Wright v. Engle, 256 Pa.Super.Ct. 321, 327 n. 3, 389 A.2d 1144, 1146 n. 3 (1978) purported to distinguish Kmiotek v. Anast, 350 Pa. 593, 39 A.2d 923 (1944) and Carroll v. Pittsburgh Railways Company, 200 Pa.Super.Ct. 80, 187 A.2d 293 (1962) on the ground that in those cases there was positive medical testimony that the injured plaintiff had recovered, while such was not the case in Wright. However, this does not mean that Kmiotek and Carroll stand for the proposition that the plaintiff can never recover for impairment of earning power if the defense presents evidence that the plaintiff had recovered. Kmiotek held that it was error to instruct the jury that the permanence of plaintiff’s condition may be taken for granted where there was conflicting medical testimony. The Kmiotek Court reasoned that "[t]he jury was not bound to accept the opinions of the plaintiff’s physicians.” 350 Pa. at 600, 39 A.2d at 926. Of course, it does not follow that the jury is bound to accept the testimony of the defense witnesses. To the extent the dictum in footnote 3 in Wright v. Engle, supra, might appear to suggest the contrary, it is totally inconsistent with the numerous Supreme Court holdings discussed in Frankel v. Todd, supra. That discussion in Frankel is cited with approval in the immediately preceding footnote in Wright. 256 Pa.Super.Ct. at 327 n. 2, 389 A.2d at 1146 n. 2. This should make it clear that whatever the purpose of the dictum in footnote 3 in Wright, it is not intended to indicate any weakening of the completely settled principle that factual conflicts in testimony are exclusively for the jury to resolve. In deciding whether to admit plaintiff’s evidence of impaired earning power, the court must assume that properly admissible evidence is true, and determine only whether that evidence is legally sufficient to raise a jury question. The legal sufficiency of plaintiff’s evidence does not depend on whether the defense puts on opposing evidence. Thus, in Carroll v. Pittsburgh Railways Company, supra, this court held that there was no basis for a claim of impaired earning power because plaintiff’s evidence by itself was legally insufficient, and not because the defense presented contradictory evidence.

      . The extent of future harm to the earning capacity of the injured person is measured by the difference, viewed as of the time of trial, between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm. This difference is the resultant derived from reducing to present value the anticipated losses of earnings during the expected working period that the plaintiff would have had during the remainder of his prospective life, but for the defendant’s act____ Accordingly, the trier of fact must ascertain, as nearly as can be done in advance, the difference between the earnings that the plaintiff probably would or could have received during his life expectancy but for the harm and the earnings that he will probably be able to receive during the period of his life expectancy as now determined. In this computation, there are considered the type of work that the plaintiff has done and the type of work that, in view of his physical condition, education, experience and age, he would have been doing and will be likely to do in the future during the working period of his life, together with all other matters reasonably relevant.
      Restatement (Second) of Torts § 924, comment d at 525-26 (1965).

      . It was undisputed that neither Janson nor his parents expected that he would pursue a post-secondary education.

      . Appellant’s mother did testify that her son's injury “affected Wilbert’s [life] because he can’t really do ... the jobs he would really like to do.” (N.T. 283). However, this assertion was corroborated neither by Wilbert’s testimony nor by independent evidence intended to establish a career objective that had been frustrated by the injuries.

      . In Wright v. Engle, 256 Pa.Superior Ct. 321, 389 A.2d 1144 (1978), we held that the trial judge properly permitted the jury to determine the issue of impairment of earning capacity. The factor distinguishing Kmiotek v. Anast, 350 Pa. 593, 39 A.2d 923; Carroll v. Pgh. Rwys Co., 200 Pa.Superior Ct. 80, 187 A.2d 293; and, presumably, the case at bar, from Wright v. Engle, supra, is that in Kmiotek, Carroll and the case sub judice "there was positive medical testimony that the injured plaintiff had recovered." 256 Pa.Superior Ct. at 327 n. 3, 389 A.2d at 1146 n. 3.

      . Appellant's assertion to the contrary notwithstanding, the wages received by the plaintiff in Wright v. Engle, 256 Pa.Superior Ct. 321, 389 A.2d 1144 (1978), both before and after the accident, constituted a part of the record produced in Wright. Record at 14a-16a, 63a, 82a. See, e.g., Christides v. Little, 274 Pa.Superior Ct. 343, 349, 418 A.2d 438, 441 (1980).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    455 A.2d 674
    COMMONWEALTH of Pennsylvania v. John HALL and Sherrie Hall, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1982.
    Filed Jan. 14, 1983.
    Petition for Allowance of Appeal Denied May 4, 1983.

      Thomas W. Scott, Harrisburg, for appellants.
    Richard C. Snelbaker, Assistant District Attorney, Mechanicsburg, for Commonwealth, appellee.

      Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

John and Sherrie Hall have appealed from judgments of sentence imposed following convictions on four counts of truancy for violating the Compulsory School Attendance Law. They have appealed in order to challenge the validity of an educational trip policy established by the Cumberland Valley School District. Finding the policy valid, we affirm the judgments of sentence.

Appellants are the parents of four school-age children who were enrolled during the 1979-1980 academic year in schools within the Cumberland Valley School District. As a result of an extended Christmas holiday in the Caribbean and a long weekend trip to New England in February, all four children had accumulated three unexcused absences from school. Accordingly, appellants were notified, pursuant to the Public School Code of 1949, Act of March 10, 1949, P.L. 30, Art. XIII, § 1333, as amended, 24 P.S. § 13-1333, that further unexcused absences would result in the institution of summary criminal proceedings against them. In March of 1980, in accordance with the procedure outlined in the Cumberland Valley School District’s attendance regulations, appellants sought and received permission for their children to be excused from school to accompany them on an “educational trip” to Washington, D.C. The children’s absences on this occasion were recorded as excused. Later in March of the same year, appellants again requested permission to remove their children from school for an additional three days, this time for an asserted “educational trip” to Europe. Authorization for these absences was not forthcoming because the District’s written policy provided for only “one educational trip per school year, not to exceed five (5) school days.” (Emphasis added.) Because their children had previously been excused for a trip to Washington, D.C., the District’s policy precluded an additional “educational” absence. Appellants made the trip, nevertheless, and removed their children from school without excuse. As a result, appellants were charged with violating the School Code. Convicted in a summary proceeding, appellants took an appeal to the Court of Common Pleas of Cumberland County. Following trial de novo before the Honorable Harold E. Sheeley, appellants were again found guilty. Post verdict motions were denied, appellants were sentenced to pay four fines of $2.00 each, plus costs, and this appeal followed.

In order to comply with the mandate of the state Constitution to maintain “a thorough and efficient system of public education,” Constitution, Art. Ill, sect. 14, the General Assembly, in the Public School Code, has prescribed only general rules and standards for the conduct of the educational system; and the State Board of Education has been empowered to “adopt broad policies and principles and establish standards governing the educational programs of the Commonwealth.” 22 Pa.Code § 1.2. However, it is the school districts which are the agencies of the state legislature to administer this constitutional mandate to maintain “ ‘a thorough and efficient system of public schools.’ ” Pittsburgh School District v. Allegheny County, 347 Pa. 101, 104, 31 A.2d 707, 708 (1943) citing Wilson, et ux. v. Philadelphia School District, et al., 328 Pa. 225, 231, 195 A. 90, 94 (1937). Local school boards are responsible for administering the individual school systems and, to that end, may adopt such reasonable rules and regulations as are necessary and proper for the management of school affairs. See: Act of March 10, 1949, P.L. 30, Art. V, § 510, 24 P.S. § 5-510.

“[W]hen one attacks the action of a school board concerning matters committed by law to its discretion, he has a heavy burden as the courts are not prone to disturb a school board’s decision. Indeed, they are without jurisdiction to interfere therewith unless it is apparent that the school board’s conduct is arbitrary, capricious and to the prejudice of public interest. Lack of wisdom or mistaken judgment is insufficient.” Farris v. Swetts, 158 Pa.Super. 645, 648, 46 A.2d 504, 505 (1946). In short, the courts of this Commonwealth are not “super” school boards with superior knowledge concerning the administration of the public schools or the science of pedagogics. McCoy v. Lincoln Intermediate Unit No. 12, 38 Pa.Cmwlth. 29, 36, 391 A.2d 1119, 1123 (1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2033, 60 L.Ed.2d 397 (1979). See also: Zebra v. Pittsburgh School District, 449 Pa. 432, 437, 296 A.2d 748, 750 (1972); Christoffel v. Shaler Area School District, 60 Pa.Cmwlth. 17, 20, 430 A.2d 726, 728 (1981); O’Leary v. Wisecup, 26 Pa.Cmwlth. 538, 364 A.2d 770 (1976). “ ‘[Cjourts are in no position to exercise control over schools and determine the policy of school administration; the judges ordinarily are not equipped for this immense task.’ ” Balsbaugh, et al. v. Rowland, 447 Pa. 423, 431, 290 A.2d 85, 90 (1972) citing Wilson, et ux. v. Philadelphia School District, et al., supra 328 Pa. at 236, 195 A. at 97. Therefore, in the absence of a gross abuse of discretion, courts will not second-guess policies of the several boards of school directors. See: Commonwealth ex rel. Hetrick v. Sunbury School District, 335 Pa. 6, 11, 6 A.2d 279, 282 (1939); Hibbs v. Arensberg, 276 Pa. 24, 26, 119 A. 727, 728 (1923).

The legislature has recognized in Section 1327 of the School Code, Act of March 10, 1949, P.L. 30, Art. XIII, § 1327, 24 P.S. § 13-1327, the necessity for requiring compulsory school attendance in order to insure that the children of the Commonwealth are properly educated. The legislature has also provided penalties in cases where those attendance requirements have been violated. Id. at § 13-1333. Within the limits of the statutory attendance requirement, it is the duty of each school district to adopt reasonable rules and regulations requiring daily attendance. Gonzalez v. Philadelphia School District, 8 Pa.Cmwlth. 130, 138-139, 301 A.2d 99, 104 (1973). Local school boards have discretionary authority to determine what constitutes a sufficient excuse for absence from school. See: 79 C.J.S. Schools and School Districts §§ 463, 466; 68 Am.Jur.2d, Schools, §§ 227, 228, 230.

Pursuant to this authority, the Cumberland Valley School Board adopted attendance regulations requiring students to follow a policy of regular school attendance in order that they might receive full benefits from the educational opportunities offered them. Excuses from school attendance were made available in cases of illness, family emergency, medical appointments, authorized school activities and duly authorized educational trips. Excuses for educational trips, as noted earlier, were limited to one trip per year not to exceed five school days. Contrary to appellants’ argument, this policy was not arbitrary or capricious. It represented a sound exercise of that discretion which had been vested in local school boards and was designed to insure continuity in classroom instruction for pupils and teachers alike. Additionally, by establishing clear and explicit standards, the policy relieved individual school administrators, principals or teachers from the burdensome task of evaluating multiple applications for excused absences while nonetheless providing an opportunity for families in the School District to avail themselves of one educational trip per school term.

In restricting the number of educational trips, the Cumberland Valley policy does not run afoul of the Public School Code of 1949. The Code, in fact, is silent regarding the permissibility of such absences. Moreover, the District’s policy is compatible with the regulations of the State Board of Education which, in permissive language, countenance temporary absences from school attendance for, inter alia, “an educational tour ... during the school term____” 22 Pa.Code § 11.26 (emphasis added).

Similarly, it cannot successfully be contended that the Cumberland Valley District’s policy violated rights guaranteed to appellants by the Constitutions of Pennsylvania and the United States. The power of the state to require that children attend school is now beyond question. The state is obliged to “assur[e] children adequate preparation for the independent and intelligent exercise of their privileges and obligations as citizens in a free democracy.” Commonwealth ex rel. School District of Pittsburgh v. Bey, 166 Pa.Super. 136, 140, 70 A.2d 693, 695 (1950). The natural, but not inalienable, right of parents to the custody and control of their children is not in conflict with this power of the state, which may, in order to fulfill its duty to educate children, impose reasonable regulations requiring regular school attendance without impinging on constitutional freedoms.

Appellants make the further argument that the trial court erred in refusing to allow the testimony of two defense witnesses concerning the educational value of the unexcused trip and the overall effect of the absences on the Hall children and the Cumberland Valley educational program. It is a well established evidentiary principle that in order for evidence to be admissible it must be relevant. The test for relevancy is whether the proffered evidence tends to prove or disprove a material issue. Commonwealth v. Brown, 489 Pa. 285, 303, 414 A.2d 70, 79 (1980); Commonwealth v. Scott, 480 Pa. 50, 54, 389 A.2d 79, 82 (1978); Commonwealth v. Kichline, 468 Pa. 265, 284, 361 A.2d 282, 292 (1976); Commonwealth v. Davenport, 462 Pa. 543, 555, 342 A.2d 67, 72 (1975); Commonwealth v. Stewart, 461 Pa. 274, 278, 336 A.2d 282, 284 (1975); Commonwealth v. Myers, 439 Pa. 381, 384, 266 A.2d 756, 758 (1970); Commonwealth v. Vukovich, 301 Pa.Super. 111, 118, 447 A.2d 267, 270 (1982), quoting 29 Am.Jur.2d, Evidence § 252; Commonwealth v. Minton, 288 Pa.Super. 381, 393, 432 A.2d 212, 217-218 (1981); Commonwealth v. Krajci, 283 Pa.Super. 488, 495, 424 A.2d 914, 918 (1981). See also: McCormick, Law of Evidence, § 185 (2d ed. E. Cleary 1972); 1 Henry, Pennsylvania Evidence, § 2 (4th ed. 1953). Instantly, the sole issue was whether appellants had violated Pennsylvania’s compulsory attendance law and the policy regulations adopted in support thereof by the Cumberland Valley School District. This issue was quite unaffected by the quality of the trip which underlay the absences of their children. Moreover, the Commonwealth did not dispute, indeed it conceded, the educational value of the proposed trip. Under these circumstances, the trial court’s refusal to permit the proffered testimony was not error.

Stripped of the emotion which appears to have surrounded this case from the outset, all that remains is appellants’ fundamental disagreement with the judgment and decision of the school board. Their assertion of an unconditional right to take their children on multiple educational trips in contravention of school district policy is without foundation in logic or in law. Continuity in a course of study through requirements which reasonably compel regular school attendance is a matter of paramount importance to which the views of individual parents must yield.

The orders and judgments of sentence are affirmed.

      . Section 13—1333 of the Public School Code of 1949 provides:
      “Every parent, guardian, or person in parental relation, having control or charge of any child or children of compulsory school age, who shall fail to comply with the provisions of this act regarding compulsory attendance, shall on summary conviction thereof, be sentenced to pay a fine, for the benefit of the school district in which such offending person resides, not exceeding two dollars ($2) for the first offense, and not exceeding five dollars ($5) for each succeeding offense, together with costs, and, in default of the payment of such fine and costs by the person so offending, shall be sentenced to the county jail for a period not exceeding five (5) days. Any person sentenced to pay any such fine may, at any time within five (5) days thereafter, appeal to the court of quarter sessions of the proper county, upon entering into a recognizance, with one or more proper sureties, in double the amount of penalty and costs. Before any proceedings are instituted against any parent, guardian, or person in parental relation, for failure to comply with the provisions of this act, the district superintendent, attendance officer, or secretary of the board of school directors, shall give the offending person three (3) days’ written notice of such violation. If, after such notice has been given, the provisions of this act regarding compulsory attendance are again violated by the persons so notified, at any time during the term of compulsory attendance, such person, so again offending, shall be liable under the provisions of this section without further notice.”

      . The attendance regulations provide:
      6100.3 Excused absences include the following:
      6100.3e Student educational trips
      6100.3el A student will be permitted to take one educational trip per school year, not to exceed five (5) school days, with his/her parents/guardian and receive an excused absence provided parents/guardian comply with program requirements. When an educational trip is planned which will require a student to be absent from school, an Educational Trip Form should be completed and returned to the office one week prior to the trip. Neglecting to gain prior approval for the educational trip will result in the recording of unexcused daily absences for those days absent.

      . Section 11.26 of Title 22 of the Pennsylvania Code, in its entirety, provides:
      Upon receipt of a written request from the parents of the pupils involved, pupils may be excused from school attendance to participate in an educational tour or trip provided during the school term at the expense of the parents when such tour or trip is so evaluated by the District Superintendent and pupil participants therein are subject to direction and supervision by an adult personage acceptable to the District Superintendent and to the parents of the pupils concerned.


author: McEWEN, Judge:

text:
    455 A.2d 678
    COMMONWEALTH of Pennsylvania v. William Charles LAMB, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1981.
    Filed Jan. 14, 1983.

      Robert L. McQuaide, Gettysburg, for appellant.
    Gary E. Hartman, District Attorney, Gettysburg, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

We here consider an appeal from the judgment of sentence imposed after appellant was convicted by a jury of conspiracy to commit robbery and acquitted of the charge of robbery. We affirm.

Appellant was convicted on the basis of the testimony of Brenda Ramos, who implicated him as a co-participant with her and co-defendant, John Shenk, in an unsuccessful attempt to rob a diner in Gettysburg. Ramos, herself, was arrested shortly after the robbery attempt, subsequently pleaded guilty to one count of robbery and testified on behalf of the Commonwealth at the consolidated trials of appellant and co-defendant John Shenk. A review of the testimony presented by the Commonwealth witnesses, Brenda Ramos and Corporal Hofe of the Gettysburg police, who arrested her shortly after the robbery, is helpful to our study of the issues presented by appellant.

Brenda Ramos testified that she was a friend of the appellant’s co-defendant, John Shenk, and was, at the time of the robbery, living in the Shenk home in Gettysburg. On the evening of December 4, 1978, she accompanied Shenk to a mobile home in Gettysburg where appellant resided. After arriving at the mobile home, appellant, Shenk, appellant’s roommate and she were drinking and engaged in a discussion of a proposal by Shenk that they commit a robbery. After the roommate of appellant retired to bed, Ramos testified that she, appellant and Shenk departed the mobile home and walked around the town of Gettysburg before proceeding toward the Lincoln Diner. Appellant and Shenk momentarily left her, approached the diner, looked in the windows to determine how many people were present and then rejoined Ms. Ramos. Ramos testified that, after a brief wait, Shenk handed her a gun and she crossed the street, went into the diner, pulled the gun out of her pocket, pointed it at a woman behind the counter and demanded money. When the woman called the police, Ramos left the diner, returned to the waiting Shenk and appellant and handed Shenk the gun before fleeing the area with appellant. She was thereafter apprehended by Corporal Hofe of the Gettysburg police, charged with two counts of robbery as well as a count of carrying a firearm without a license and pleaded guilty to one count of robbery.

Corporal Michael Hofe of the Gettysburg police, the only other witness presented at trial by the Commonwealth, testified that he arrived at the scene of the robbery and observed two persons, one of whom he believed was Brenda Ramos, and the other, a male Caucasian, running near the Lincoln Diner shortly after the robbery was attempted. Corporal Hofe arrested Brenda Ramos within several blocks of the scene. While the male was not apprehended, Corporal Hofe testified that his height, hair color and length, and his physical characteristics were identical to those of appellant.

Appellant was charged some three months after the robbery at the diner and, following his conviction, was sentenced to a term of imprisonment of one to four years.

Appellant first contends that the Commonwealth failed at the Rule 1100 extension hearing to prove due diligence as required by Pa.R.Crim.P. 1100(c)(3) and that, therefore, the court erred when it granted the petition of the Commonwealth for an extension of time within which to commence trial. The prosecution of appellant was initiated when the complaint charging him with robbery and conspiracy was filed on March 14, 1979. The Rule 1100 rúndate was September 10,1979. The trial commenced on September 19, 1979, 189 days after the filing of the complaint. The Commonwealth filed a petition for an extension of time on June 15, 1979, well within the 180 day period, alleging that, despite due diligence, the Commonwealth would be unable to try the defendant within the prescribed period for the reason that the trial list for the June term was such that the case could not be scheduled. The petition of the Commonwealth requested that the time be extended through the commencement of the next criminal trial term on September 17, 1979. At the hearing held on the petition for an extension, both counsel for appellant and counsel for the co-defendant John Shenk joined in a stipulation with the District Attorney that all cases scheduled for trial during the May and June 1979 terms of criminal court had Rule 1100 rundates which would expire prior to the rúndate in the instant case. Nevertheless, they requested that the Commonwealth present evidence at the hearing on the issue of due diligence. The Commonwealth presented no testimony at the hearing but represented to the court that it was ready to proceed to trial prior to the rúndate and made reference to the judicial delay argument which had been presented at other Rule 1100 extension hearings held the same day in other matters. The record of the extension hearing reflects the following exchange between the court and the Assistant District Attorney on this point:

The Court: Do you wish to produce any evidence as to the issue of due diligence, Mr. Hartman, or are you relying upon your prior argument?
Mr. Hartman: I am relying upon the prior argument that the term would indicate that the evidence would be that I would be prepared to go to trial at the time but there were no trial dates. Therefore, I’m arguing that the Commonwealth is prepared to go to trial but in the September term which is the basis for the motion.
The Court: The court will grant the request for its extension in each case. (N.T. 8/6/79, pp. 2, 3).

Following the expiration of the original September 10, 1979 rúndate, appellant filed a written motion to dismiss the charges against him pursuant to Rule 1100(f) on the ground that the Commonwealth had failed to establish due diligence at the hearing on the petition to extend. The court denied the motion. Trial commenced the following day on September 19, 1979, the 189th day after the filing of the complaint, and the jury returned with verdicts of not guilty of the charge of robbery and guilty of the charge of conspiracy to commit robbery. Appellant preserved in post-verdict motions the Rule 1100 issue.

The trial court, on January 30, 1980, sua sponte, ordered that a supplementary evidentiary hearing be held to afford the Commonwealth the opportunity to present additional evidence of its due diligence in attempting to bring appellant to trial within 180 days after the filing of the complaint. At the supplemental evidentiary hearing, over the standing objection of defense counsel, the Commonwealth presented testimony indicating that it would have been possible for the District Attorney to try appellant by July 26, 1979 or any date thereafter but that, due to the court calendar and system of assigning trial dates in Adams County, it was unable to assign a trial date to appellant within the 180 day period.

Appellant contends: (1) that the Commonwealth wholly failed to establish due diligence at the initial hearing on the petition to extend, in violation of Rule 1100(c)(3); (2) that it was error for the court to conduct, after the trial, the supplemental evidentiary hearing on the petition to extend because it allowed the Commonwealth to present evidence of its due diligence well after the expiration of the 180 day period and, thereby, amounted to a nunc pro tunc granting of an extension; and (3) that, for those reasons, the charges against appellant should be dismissed and he should be discharged in accordance with Pa.R.Crim.P. 1100(f).

Since we have concluded, on the basis of the record, that the Commonwealth met the requirements of Pa.R.Crim.P. 1100(c)(3) by establishing at the initial extension hearing that, despite due diligence, trial could not be commenced within the prescribed period, we need not address the contention of appellant that it was error for the court to order the supplemental evidentiary hearing on the petition to extend. The Pennsylvania Supreme Court enumerated the requirements for an extension of time under Rule 1100(c) in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976):

[T]he trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the due diligence of the prosecution, and (2) the certification that the trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the cause of the court delay and reason why the delay cannot be avoided. Id,., 469 Pa. at 222, 364 A.2d at 1349-1350.

It is settled that judicial delay may serve as the basis for an extension of time under Rule 1100(c). Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979); Commonwealth v. Mayfield, supra; Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Bytheway, 290 Pa.Super. 148, 434 A.2d 173 (1981); Commonwealth v. Eck, 272 Pa.Super. 406, 416 A.2d 520 (1979). However, before such an extension under Rule 1100(c) may be granted, the record must show that the requirements of Rule 1100(c) as defined in Mayfield have been satisfied. Commonwealth v. Mayfield, supra, 469 Pa. at 222, 364 A.2d at 1349-50. The Commonwealth must meet this burden of proof by a preponderance of the evidence. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Mines, 282 Pa.Super. 157, 422 A.2d 876 (1980). A mere allegation of due diligence by the Commonwealth in a petition to extend is not sufficient to support a court order extending the mandatory time for trial under Rule 1100(c). See Commonwealth v. Mines, supra, 282 Pa.Super. at 162, 422 A.2d at 879; Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978). Such an application, however, is not defective per se for the Commonwealth may be granted an extension if it presents sufficient evidence of due diligence at the hearing on the application. Commonwealth v. Mines, supra; Commonwealth v. Cimaszewski, 261 Pa.Super. 39, 395 A.2d 931 (1978); Commonwealth v. Myers, 259 Pa.Super. 196, 393 A.2d 785 (1978).

We believe that the Commonwealth adequately met its burden of proving due diligence by: (1) filing the petition to extend the time within which to commence trial well within the 180 day period; (2) entering into the stipulation with counsel for appellant that each of the criminal cases that were tried in the May and June 1979 terms of criminal court, the last terms of criminal court before the term commencing September 17, 1979, had Rule 1100 rundates which would have expired prior to the rúndate in the instant case; and (3) representing to the court that the Commonwealth was able to go to trial prior to the expiration of the 180 day period but was unable to do so by reason of the unavailability of any criminal trial terms prior to the expiration of the rúndate. The due diligence of the Commonwealth is implicit in the text of the stipulation which demonstrates that the instant case simply could not have been scheduled any earlier than the next available criminal trial to commence in September, without delaying other cases, all of which had earlier Rule 1100 rundates. We further believe that the nature of this stipulation, together with the action of the court in taking judicial notice of the criminal trial calendar in a one judge county, made sufficiently clear both the cause of the trial delay as well as the reason why the delay could not be avoided in a fashion as to satisfy the Mayfield test. See Commonwealth v. Levitt, 287 Pa.Super. 115, 429 A.2d 1126 (1981); Commonwealth v. Crowley, 281 Pa.Super. 26, 421 A.2d 1129 (1980); See also Commonwealth v. Ryan, 306 Pa.Super. 159, 170 n. 7, 452 A.2d 264, 269 n. 7 (1982). Therefore, we conclude that the hearing court properly granted an extension of time to the Commonwealth.

Appellant next contends that the trial court erred when it permitted Corporal Michael Hofe to testify for the Commonwealth even though his identity as an eyewitness was not disclosed to appellant prior to trial. See Pa.R. Crim.P. No. 305 B(2)(a). Hofe, a Gettysburg police officer, was called as a Commonwealth witness to offer testimony that he saw two people fleeing from the scene of the robbery, one of whom he identified as Brenda Ramos and the other of whom he described as a male whose physical characteristics were identical to those of appellant. Counsel for appellant objected to the presentation of the testimony of Officer Hofe due to the failure of the Commonwealth to disclose his name as an eyewitness after counsel for appellant requested disclosure of the names and addresses of all eyewitnesses pursuant to Pa.R.Crim.P. No. 305 B(2)(a). That Rule expressly provides for the discretionary discovery of eyewitnesses to a crime although it does not provide a definition of who constitutes an “eyewitness.” In this case, Corporal Hofe was not, strictly speaking, an eyewitness to the robbery since he did not witness the incident actually take place. The value of his testimony to the Commonwealth was the link it provided between an individual who looked like appellant and Brenda Ramos, the perpetrator of the robbery, at a time and place proximate to the robbery. We could conclude that Corporal Hofe does not fall within the category of eyewitnesses whose names and addresses may be ordered to be given to the defense after a pre-trial motion for discovery has been filed pursuant to Pa.R.Crim.P. 305 B(2)(a). See Commonwealth v. Wolfe, 301 Pa.Super. 187, 447 A.2d 305 (1982). Assuming, on the other hand, that Corporal Hofe was such an eyewitness, it would appear that the Commonwealth did not satisfy the Rule.

Counsel for appellant filed a notice of intention to present an alibi defense on behalf of appellant approximately one month prior to the commencement of trial. Prior to that time counsel for appellant and co-defendant Shenk had each informally requested pre-trial discovery of the names and addresses of all eyewitnesses pursuant to Pa.R.Crim.P. 305 B(2)(a). The district attorney responded to that informal request to identify eyewitnesses but did not include in the response the name of Corporal Hofe. When the Commonwealth called Corporal Hofe to the stand, both counsel for appellant and co-defendant Shenk moved to preclude his testimony pursuant to the sanctions provided in Pa.R. Crim.P. 305 E. The court then undertook an inquiry into the application that had been made by appellant to secure information concerning the witnesses. The District Attorney advised the court that, at the time he received the requests for disclosure of eyewitnesses, he did not have all the information which later became available to him and, for that reason, directed counsel to a Sergeant Potter of the Gettysburg police force for further information. The record reveals that counsel for appellant was subsequently informed by Sergeant Potter that one of his officers “did see someone that he thought might have been Brenda Ramos with someone that he thought was a white male.” (N.T. P. 71). The trial court, noting that the testimony of Hofe “could well have been crucial” and “certainly would have bolstered Ms. Ramos by lending corroboration to her statement that she and Lamb fled the crime scene together”, offered to grant counsel for appellant and co-defendant Shenk a half day continuance for the purpose of investigating the credibility of the officer. Both declined to take advantage of this opportunity.

In Commonwealth v. Parente, 294 Pa.Super. 446, 450-52, 440 A.2d 549, 552 (1982), we said that “[u]nder section E of Pa.R.Crim.P. 305, when it becomes apparent that a party has failed to comply with the provisions of the rule, the trial court has broad discretion in choosing an appropriate remedy.” See Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982). A court may order an offending party to permit discovery or inspection, or it may grant a continuance, or it may prohibit the offending party from introducing the testimony of the undisclosed witness, or it may enter such other order as it deems just under the circumstances. Pa.R.Crim.P. 305 E; see Commonwealth v. Keeler, supra.

We cannot say that the trial court committed an abuse of discretion by granting appellant the right to a continuance to enable an investigation into the credibility of Corporal Hofe, since the grant of a continuance as a remedy for non-disclosure of eyewitnesses is specifically approved in Pa.R.Crim.P. 305 E. We believe the remedy proposed by the court was appropriate in this case where counsel for appellant had been informed that there was a police officer who saw Brenda Ramos and a male running together after the robbery, but yet failed to subsequently seek, through a formal motion for pre-trial discovery, the name of the police officer and the text of his statement. See Pa.R.Crim.P. 305 A. We conclude that appellant pannot now claim prejudice where he has waived the opportunity offered by the court to dispel any harm to him by virtue of the previously undisclosed testimony of Corporal Hofe.

Appellant proceeds to contend that the trial court erred in permitting Brenda Ramos to refer, while testifying as a Commonwealth witness, to a statement she had made after the conclusion of the conspiracy. Appellant appears to make two arguments: first, he alleges that the Commonwealth failed to meet the three requirement test of Commonwealth v. Proctor, 253 Pa.Super. 369, 385 A.2d 383 (1978), which describes the foundation which must precede any reference by a witness to a writing in order to refresh recollection; second, appellant claims that the reference by the prosecutor and the witness to the statement permitted the jury to know of its existence even though it was not admitted into evidence, thereby violating the general rule in conspiracy cases that the out-of-court declarations of one co-conspirator are not admissible against another co-conspirator unless the declarations were made during the conspiracy and in furtherance of the common design. See Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). We find these arguments to be without merit.

It is well established that a writing or other object may properly be used by a witness to refresh or revive his or her present recollection of past events. Commonwealth v. Payne, 455 Pa. 503, 317 A.2d 208 (1974); Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973); Commonwealth v. Proctor, supra. “ ‘The proper procedure for a party to refresh his own witness’ recollection is to show the writing, or other evidence, to his witness and after the witness’ recollection is refreshed, to proceed with direct examination and have the witness testify from present recollection.’ ” Commonwealth v. Payne, supra 455 Pa. at 506, 317 A.2d at 210; Commonwealth v. Proctor, supra 253 Pa.Super. at 373, 385 A.2d at 385. We adopted in Proctor, the three part test pronounced by the Supreme Court of Michigan in Moncrief v. City of Detroit, 398 Mich. 181, 247 N.W.2d 783 (1976), and decreed that the recollection of a witness may be refreshed by a party provided that three conditions precedent have been met:

“ ‘To permit the use of a writing in order to refresh the memory of a witness, the proponent must show: (1) that the witness’ present memory is inadequate; (2) that the writing could refresh the witness’ present memory; and (3) that reference to the writing actually does refresh the witness’ present memory.’ ” Commonwealth v. Proctor, supra 253 Pa.Super. at 373, 385 A.2d at 385.

We are satisfied that the Commonwealth provided the foundation required by Proctor. Since the statement was not admitted into evidence but was, instead, used only to refresh the recollection of the witness concerning the events on the night of the robbery, the general rule concerning the admissibility of declarations of co-conspirators simply does not apply. A review of the testimony of Ms. Ramos discloses that her present memory of the events on the night of the robbery had been inadequate; that the writing could refresh her present memory as to some of the events of that evening; and that it did in fact refresh her present memory of some of those events. We find no error with the decision of the trial court to allow Brenda Ramos to refresh her recollection with the statement she had given to a police officer following her arrest.

Appellant finally contends that the testimony of Commonwealth witness Brenda Ramos was not sufficient evidence of appellant’s participation in a conspiracy to commit robbery to sustain his conviction of that charge. He argues that the failure of Ramos to specifically relate any oral agreement among the three to commit the robbery, as well as her inability to relate anything that appellant did to aid or solicit the robbery, is simply inadequate to show that he conspired with Ramos and co-defendant Shenk to commit the robbery. We disagree.

The essence of the offense of conspiracy is an agreement between two or more persons to commit an unlawful act. Commonwealth v. Emmi, 290 Pa.Super. 86, 434 A.2d 142 (1981). The agreement required for conspiracy can seldom be directly proved, nor need it be. Commonwealth v. Smith, 289 Pa.Super. 356, 433 A.2d 489 (1981); Commonwealth v. Stephens, 231 Pa.Super. 481, 331 A.2d 719 (1974). However, a mere association between several alleged co-conspirators or their mere presence at the scene of the crime is not enough to establish that there has been a criminal conspiracy. Commonwealth v. Emmi, supra. Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred. Commonwealth v. Carter, 272 Pa.Super. 411, 416 A.2d 523 (1979).

We believe that the Commonwealth adequately established the existence of the conspiracy between Brenda Ramos, appellant and co-defendant Shenk to commit the robbery of the Lincoln Diner by way of the testimony of Brenda Ramos. It is clear that the uncorroborated testimony of a co-conspirator, if believed, is sufficient to support a conviction in a criminal conspiracy prosecution. Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981); Commonwealth v. Richbourg, 263 Pa.Super. 494, 398 A.2d 685 (1979). We have carefully studied the record and earlier summarized the evidence of the Commonwealth. We conclude the evidence was certainly sufficient to sustain a conviction of conspiracy to commit robbery.

Judgment of sentence affirmed.

      . It would appear that the action of a court in conducting, after trial, a supplemental evidentiary hearing on a Commonwealth petition to extend the time within which to commence trial, in the absence of an adequate initial record that satisfies the Mayfield requirements, would amount to an impermissible "second bite” of the Commonwealth’s evidentiary burden at a Rule 1100 extension hearing. See Commonwealth v. Akridge, 492 Pa. 90, 422 A.2d 487 (1980); Commonwealth v. Carr, 292 Pa.Super. 137, 436 A.2d 1189 (1981); Commonwealth v. Alston, 286 Pa.Super. 290, 428 A.2d 997 (1981).


author: JOHNSON, Judge:

text:
    455 A.2d 686
    RELIANCE INSURANCE COMPANY v. RICHMOND MACHINE COMPANY, Reliance Electric Company, and Bendix Westinghouse. Appeal of RELIANCE ELECTRIC COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1982.
    Filed Jan. 14, 1983.

      Mary Jane Forbes, Harrisburg, for appellant.
    David C. Keiter, York, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   JOHNSON, Judge:

This is an appeal by [Reliance Electric] a supplier of parts for a machine the defective functioning of which was allegedly the cause of injuries to an employee of an insured of the appellee insurance company [Reliance Insurance]. The appeal is from an order of the trial court which sustained Reliance Electric’s preliminary objections in part, denied them in part, and granted the plaintiff Reliance Insurance leave to amend its complaint.

Permission to appeal the interlocutory order was specially granted, at 155 Mise. Docket No. 12, filed May 18, 1981, following the filing of a petition for permission to appeal. The trial court, as provided for in 42 Pa.C.S.A. § 702 (Purdon 1981), certified three questions to this court. The three questions certified to us by the trial court are:

(1) is the right of subrogation granted to an employer by section 319 of the Workmen’s Compensation Act (77 P.S. § 671) against alleged third-party tortfeasors responsible for injuries to an employee the exclusive remedy by which the employer (or its insurer) may recover the sums it paid in workmen’s compensation benefits to the injured employee?
(2) Does an employer (or its insurer) have a common law right of action for indemnity and/or contribution against the third party whose negligence allegedly caused injury to the employee?
(3) If the employer (or its insurer) may maintain an action for contribution and/or indemnity, should the two year statute of limitations on personal injury actions apply to such a cause of action?

The facts are as follows. An employee of Reliance Insurance’s insured was injured, in the course of his employment, on April 4, 1977. On April 11, 1977, Reliance Insurance started paying worker’s compensation benefits to the injured employee. On May 16, 1979, more than two years after both the injury and the commencement of payment of worker’s compensation benefits, Reliance Insurance filed a praecipe for a writ of summons in assumpsit against Reliance Electric and the other defendants. A complaint in assumpsit was filed on August 3, 1979.

Reliance Insurance’s complaint against Reliance Electric and the other defendants, also manufacturer/suppliers of the machine and parts involved in the accident, averred that the defendants’ negligence was the cause of the injury to the employee and that therefore Reliance Insurance was entitled to indemnification by and contribution from the defendants for the amount it had paid in worker’s compensation benefits to the injured employee.

The preliminary objections of Reliance Electric raised inter alia the objection that the purported claim by Reliance Insurance for indemnification and contribution was in reality a subrogation claim under section 319 of The Pennsylvania Workman’s Compensation Act. This section provides in pertinent part:

§ 671. Subrogation of employer to rights of employee against third persons...
Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe... against such third party to the extent of the compensation payable under this article by the employer____

77 P.S. § 671 (Purdon Supp.1982).

The first question brought to us is whether the above language is an exclusive means whereby the employer, or its insurer, may recover the amount it has paid in worker’s compensation benefits. Based on the principles of statutory construction, and extrapolating from the construction hitherto placed on section 319 by the appellate courts of this Commonwealth, we believe that section 319 provides the exclusive means for an employer or its insurer to recover.

The Statutory Construction Act of 1972 provides at section 1504:

§ 1504. Statutory remedy preferred over common law
In all cases where a remedy is provided or a duty is enjoined or anything is directed to be done by any statute, the directions of the statute shall be strictly pursued, and ' no penalty shall be inflicted, or anything done agreeably to the common law, in such cases, further than shall be necessary for carrying such statute into effect.

1 Pa.C.S.A. § 1504 (Purdon Pamp.1982). The Workmen’s Compensation Act has eliminated the tort concept as between employee and employer. Socha v. Metz, 385 Pa. 632, 637, 123 A.2d 837, 840 (1956); Arnold v. Borbonus, 257 Pa.Super. 110, 113-14, 390 A.2d. 271, 272 (1978), citing Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977).

By virtue of the [Workmen’s] Compensation Act, an employee’s common law right to damages for injuries suffered in the course of his employment as a result of his employer’s negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence ____

Socha v. Metz, 385 Pa. at 637, 123 A.2d at 839-40. In return, the employer is granted total immunity from suit for its own negligence. See section 303 of the Act, 77 P.S. § 481, note 6 infra.

However, the legislature has seen fit, when a third party’s negligence has resulted in the employer or its insurer paying worker’s compensation benefits, and where the injured employee has recovered compensation from the third party, to permit the employer or its insurer to recoup from this recovery the benefits paid. This is the extent of the employer or insurer’s right, as specifically provided by the Workmen’s Compensation Act at section 319. Our case law has consistently so viewed this section. See, e.g., Scalise v. F.M. Venzie & Co., 301 Pa. 315, 152 A. 90 (1930) (action in trespass brought by widow of deceased employee against third party). In Scalise our supreme court said, in response to an argument that the right of action was in the employer rather than in the widow, that the right of action under section 319 is in the injured employee. See also Moltz v. Sherwood Bros., Inc., 116 Pa.Super. 231, 176 A. 842 (1935) (action brought against third party by employer’s insurer to recover workmen’s compensation benefits paid to employee), where this court said:

The employer’s right of subrogation must be worked out through an action brought in the name of the injured employee, either by joining the employer as a party plaintiff ..., or as a use plaintiff____ “The right of action is for one indivisible wrong, and this abides in the insured, through whom the insurer must work out his rights upon payment of the insurance, the insurer being subrogated to the rights of the insured upon payment being made......... This right of the insurer against such other person is derived from the assured alone, and can be enforced in his right only...... In support of this rule it is commonly said that the wrongful act is single and indivisible and can give rise to but one liability.”

Moltz v. Sherwood Bros., Inc., 116 Pa.Super. at 234, 176 A. at 843 (citations omitted).

The commonwealth court, in an appeal by an employer from a Workmen’s Compensation Appeal Board ruling that an employee’s failure to prosecute a civil action against the third party tort-feasor did not bar his worker’s compensation proceeding against the employer, said:

[T]he subrogation rights of the employer under the provisions of Section 319 ... are preconditioned upon (1) a compensable injury’s being caused in part by the act or omission of a third party and (2) a recovery against the third party or a compromise settlement by and between the employee and the third party. Here there has been no recovery against a third party nor has there been a compromise settlement. In addition, there has been no determination that a compensable injury was caused in part by the act or omission of a third party____ Therefore [the employer] has not established that it has available at this time any subrogation rights____

Olin Corp. (Plastics Division) v. Workmen’s Compensation Appeal Board, 14 Pa.Commw. 603, 609, 324 A.2d 813, 817 (1974). See also, Travelers Insurance Co. v. Hartford Accident & Indemnity Co., 222 Pa.Super. 546, 294 A.2d 913 (1972) (action in assumpsit by employer’s insurer to recover worker’s compensation benefits from third party’s insurer; employer’s right to recovery was based on third party’s alleged liability which was not established, a jury having found the third party not negligent; the supreme court affirmed the lower court’s judgment for the third party); Broderick v. Great Lakes Casualty Co., 152 Pa.Super. 449, 33 A.2d 653 (1943) (in assumpsit action by employer and insurer, this court held that fact of settlement between third party and employee was not evidence of third party’s liability as tort-feasor; “the subrogated employers are bound to prove liability to support the contention they ... are entitled to recover. This is true regardless of the form of the action.” 152 Pa.Super. at 451, 33 A.2d at 654).

More recently, Justice LARSEN in a concurring opinion in Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980), expressed the view that the employer’s right to subrogation was not automatic, and that the employer must “in some judicial proceedings establish its freedom from fault in order to be subrogated.” 488 Pa. at 524, 412 A.2d at 1099.

The rule in this Commonwealth, then, is that for the insurer of the employer to be reimbursed for worker’s compensation benefits paid, it must show that the party from whom it seeks to recover is in fact liable. This requirement is not met in the case before this court. Our appellate courts have not hitherto construed section 319 as providing the employer or its insurer with a cause of action against a third party in its own right. We see no reason to do so at this stage, where the legislature has not chosen to do so, where the liability of the alleged third party tort-feasor has not been determined, and where the statute of limitations for personal injury actions has barred an action in trespass against the alleged tort-feasor.

We therefore hold that section 319 is an exclusive remedy, and that for an employer or its insurer to enforce its subrogation rights, it must proceed in an action brought on behalf of the injured employee in order to determine the liability of the third party to the employee. If such liability is determined, then the employer or its insurer may recover, out of an award to the injured employee, the amount it has paid in worker’s compensation benefits.

This holding is consistent with the rule that an employer cannot be joined by a third party alleged tort-feasor, either as an additional defendant or as an involuntary plaintiff, for the purpose of apportioning negligence under the Comparative Negligence Act, Kelly v. The Carborundum Co., 307 Pa.Super. 361, 453 A.2d 624 (1982). See also, Leonard v. Harris Corp., 290 Pa.Super. 370, 434 A.2d 798 (1981), petition for allowance of appeal denied December 21, 1981 (Workmen’s Compensation Act bars joinder of employer as additional defendant for the purpose of determining employer’s right to subrogation and third-party tortfeasor’s right to credit for the amounts paid to employee in workmen’s compensation); Heckendorn v. Consolidated Rail Corp., 293 Pa.Super. 474, 439 A.2d 674 (1981) petition for allowance of appeal granted April 27, 1982 (Workmen’s Compensation Act bars joinder of employer as additional defendant by tort-feasor seeking contribution or indemnity).

The decision we make as to the first question certified to us in this case answers the second and third question. There is no “common law right of action for indemnity and/or contribution” against an alleged third party tort-feasor. And the applicable statute of limitations is that which is applicable to the employee’s cause of action against the third party tort-feasor.

The case is remanded to the trial court with a procedendo. Jurisdiction is relinquished.

      . See Pennsylvania Rule of Appellate Procedure 1311, 42 Pa.C.S.A. (Purdon Pamp.1982).

      . The complaint alleged that the foot pedal of the machine, an open head body roller, was accidentally activated, causing a large steel roller to descend on the employee’s hand, causing severe laceration and partial amputation of the employee's thumb.

      . Act of June 2, 1915, P.L. 736, Art. 1, § 101 et seq., as amended. Section 319 is codified at 77 P.S. § 671 (Purdon Supp.1982).

      . The law is clear that an insurer of the employer may sue to enforce its subrogation rights. Ledford v. Central Medical Pavilion, Inc., 90 F.R.D. 445 (W.D.Pa.1981); Bumbarger v. Bumbarger, 190 Pa.Super. 571, 155 A.2d 216 (1959).

      . Act of December 6, 1972, No. 290, P.L. 1339, Part V, 1 Pa.C.S.A. § 1501 et seq. (Purdon Pamp.1982).

      . In Tsarnas our supreme court upheld the constitutionality of the employer immunity section of the Workmen’s Compensation Act, section 303(b), 77 P.S. § 481(b) (Purdon Supp.1982), which provides:
      § 481. Exclusiveness of remedy; actions by and against third party: contract indemnifying the third party
      (b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

      . 42 Pa.C.S.A. § 7102 (Purdon Pamp.1982).


author: WICKERSHAM, Judge:

text:
    455 A.2d 691
    COMMONWEALTH of Pennsylvania v. Bobby LYNN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 28, 1982.
    Filed Jan. 21, 1983.
    John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

      Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   WICKERSHAM, Judge:

On September 26, 1978, Officer Clarence Harvey, an undercover narcotics officer, approached appellant who was seated in a double-parked white Datsun station wagon in the vicinity of the 4800 blocks of Westminster and Wyalusing Avenues near St. Bernard Avenue in Philadelphia.

Q Now, Officer Harvey, I’m going to direct your attention, if I may, to September the 26th, 1978. You were a Philadelphia Police Officer?
A Yes, I was.
Q On that date, and in conjunction with your official capacity, did you have occasion to come into contact with Bobby Lynn, the defendant in this case?
A That’s correct.
I observed a white Datsun station wagon double-parked in this block.
I pulled up behind the station wagon, got out, and approached the operator. I asked the operator if he was Bobby, and he stated that he was. I then asked him if I could get a $25 bag, meaning a $25 bag of heroin. He then said, “Yeah. Follow me.”
I then got back into my car, and I followed him to the 4800 block of Wyalusing Avenue, where he parked. He then signalled for me to come to him, and I got out of my vehicle and walked up to his auto. He then asked me to give him the money. I then handed him a 20-dollar bill and a ten-dollar bill. The serial numbers were prerecorded before leaving the Narcotic Unit. He then handed me a five-dollar bill and a glazed paper packet, containing a white powder.

Record at 6-8.

On January 24, 1979, at the conclusion of his undercover assignment, Officer Harvey arrested defendant at his residence.

Defendant was charged with knowingly or intentionally possessing a controlled substance and with manufacture, delivery or possession with intent to manufacture or deliver a controlled substance, as set forth in Information No. 317, March Term 1979. Defendant’s pre-trial motion to dismiss the information on the basis of pre-arrest delay was denied by the Honorable Nicholas A. Cipriani.

On November 21, 1979, the Honorable Marvin R. Halbert, sitting without a jury, found defendant guilty of both charges. On January 16, 1980, post-verdict motions were denied and defendant was sentenced to three years probation. This appeal followed.

In Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978), our supreme court considered appellant’s claim that the delay between the victim’s death and appellant’s arrest constituted a deprivation of due process of law.

At the outset, we note that appellant’s claim is not directed toward a denial of his Sixth Amendment right to a speedy trial after arrest.... Rather, this claim is concerned with a deprivation of due process of law under the Fourteenth Amendment by reason of a delay between the commission of an alleged criminal offense and the accusation of the defendant by means of complaint or indictment. This distinction was made clear in United States v. Marion, 404 U.S. 307, 313-21, 92 S.Ct. 455, 459-463, 30 L.Ed.2d 468, 474-79 (1971). The Marion Court further noted that statutes of limitation do not provide the sole protection for one who complains of delay prior to formal accusation, and that “the Due Process Clause ... would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to [defendants’] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.”
Marion was further elucidated in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In that case, the defendant was able to demonstrate that two witnesses assertedly material to his defense had died during a preindictment delay. The Court, however, rejected his claim “that due process bars prosecution whenever a defendant suffers prejudice as a result of preindictment delay.” 431 U.S. at 789, 97 S.Ct. at 2048, 52 L.Ed.2d at 758-59. Instead, it held that an inquiry into the prosecution’s reasons for the delay is not required until a claim of prejudice to the accused is made out.
“[Marion ] establishes only that proof of actual prejudice makes a due process claim concrete and ripe for adjudication, not that it makes the claim automatically valid ... Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim ...”

Id. 480 Pa. at 353-54, 390 A.2d at 179.

See also Commonwealth v. DeMarco, 281 Pa.Super. 62, 421 A.2d 1147 (1980), where we said:

The first contention of the defendant is that he was prejudiced by the fact that he was arrested two and one-half months after the offense occurred. His point being that the lapse of time caused difficulty in establishing an alibi defense and because of the transient nature of his fellow inmates it was difficult for him to garner his witnesses.
‘Courts which have confronted due process questions of this nature have employed a balancing test in which the need for the delay is measured against the prejudice to the accused’s interest in a reliable process of guilt determination. United States v. Feldman, 425 F.2d 688 (3rd Cir.1970); United States v. Jones, 322 F.Supp. 1110 (E.D.Pa.1971); State v. Rountree, 106 NJ.Super. 135, 254 A.2d 337 (N.J.C.C.1969). This test was approved in Commonwealth v. McCloud, supra, [218 Pa.Super.] at 237 [275 A.2d 841 (1971) ] where we gave full recognition and approval to the legitimate police purposes often served by delaying arrests in order to conduct full criminal investigations.
The mere fact of an unjustified delay, however, is insufficient to justify the dismissal of the charges. Rather, an evaluation of the case against the accused and an examination of the prejudice resulting from the delay must now be made. See United States v. Jones, supra.
Id. [Commonwealth v. DeRose ] 225 Pa.Super. [8] at 10-12, 307 A.2d [425] at 427.
We have employed the balancing test referred to hereinabove as applied to the facts of the instant case and we agree with the lower court that the delay period was comparatively slight and that no prejudice has been shown to have resulted to the appellant, DeMarco. The mere assertion of prejudice is not enough to warrant dismissal of the informations. No delay of two and one-half months has been held sufficient to constitute a denial of due process. United States v. Jones, 322 F.Supp. 1110 (E.D.Pa.1971) (five month delay); Woody v. United States, 370 F.2d 214 (D.C.1966) (four month delay).

Id. 281 Pa.Super. at 63-64, 67, 421 A.2d at 1148, 1150.

Cf. Commonwealth v. Linder, 284 Pa.Super. 327, 425 A.2d 1126 (1981) (delay period of sixty-six days did not result in any prejudice to appellant and is not sufficient to constitute a denial of due process) and Commonwealth v. Grey, 292 Pa.Super. 460, 437 A.2d 765 (1981), (a 41-day delay between the narcotic transaction and the date of arrest not prejudicial).

At a hearing held before Judge Cipriani on April 27, 1979, Bobby Lynn testified:

Q. On September 26th, 1978 did you sell anything, drugs or anything else to a police officer Clarence Harvey?
A. No, I didn’t.
Q. Did you sell drugs or anything else to any police officer?
A. No, sir.
Q. Did you sell them to anybody?
A. No, sir.
Q. Sir, on September 26, 1978 or a month or two before, or a month or two after, were you employed?
A. No, sir.
Q. Were you attending school?
A. Yes, sir.
Q. Were you attending every day?
A. Every other day.
Q. When you did attend school, what time did you finish school?
A. One o’clock.
Q. In the afternoon?
A. Yes.
Q. Do you know whether you attended school on September 26, 1978?
A. Well, not at the present. I don’t think I was absent.
Q. Sir, whether or not you were attending school that date or the day before or day after, were you in school at 6:35 p.m.?
A. No, sir, school lets out at 2:30.
Q. Were you ever at school until around 6:35 or six o’clock in the evening on September 26, or on the day before or after, anything like that?
A. No.
Q. Sir, do you own a car?
A. Yes, sir.
Q. What kind of car is it?
A. A ’72 Datsun.

Record at 17-18.

No testimony was presented by appellant at such hearing which would have shown actual prejudice to have resulted from the delay period. Hence, an inquiry into the prosecution’s reasons for the delay is not required. Be that as it may, Judge Cipriani fully considered the prosecution’s reasons for the delay at the hearings held April 27, 1979 and June 15, 1979. Appellant fails either Marion requirement for a due process claim.

We agree with Judge Halbert’s conclusion set forth in his opinion dated March 10, 1982, wherein he said:

In assessing Officer Harvey’s testimony the court found his identification of the defendant to be strong and positive, and made independently. The court also found that the delay between the offense and arrest did not affect the officer’s ability to identify the defendant. Harvey testified than when the defendant removed his cap, he immediately recognized him, especially when he noticed the scar over the defendant’s eye. Additionally, the use of a long term undercover operation was reasonable police conduct in this case. Accordingly, the court found the prejudice, if any, was outweighed by the reasonableness of this particular investigation.
The issue of pre-arrest delay was argued and the pre-trial motion was denied by the Honorable Nicholas Cipriani, who also filed Findings of Fact and Conclusions of Law. Based on the foregoing discussion this court agreed with Judge Cipriani’s conclusion that the delay was justified and, accordingly, denied defendant’s post trial motion relating thereto.
No other issues were raised by the defendant on post trial motions.
In summary, this court is satisfied that the combined weight and volume of the Commonwealth’s evidence in the case at bar fully supports the defendant’s conviction. Likewise, this court, upon careful review of the entire record finds no harmful, prejudicial, or reversible error and nothing to justify the granting of defendant’s post trial motions. The sentence should stand accordingly.

Lower ct. op. at 4.

Judgment of sentence affirmed.

SPAETH, J., concurs in the result.

      . Appellant frames the question involved as follows:
      Should not the Motion to Dismiss the Information on the grounds of deliberate pre-arrest delay have been granted where the appellant was denied due process by the unjustifiable delay of over three months between the alleged occurrence of a single transaction and appellant’s arrest, and that delay deprived appellant of his memory of his whereabouts on the date in question and thus hamstrung the preparation of his defense against an uncorroborated identification of questionable reliability, which was based on a single observation.
      Brief for Appellant at 2.


author:
BROSKY, Judge:
      POPOVICH, Judge,

text:
    455 A.2d 694
    COMMONWEALTH of Pennsylvania v. Robert TALIAFERRO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 21, 1982.
    Filed Jan. 21, 1983.

      George W. Bills, Jr., Pittsburgh, for appellant.
    Kemal Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER, BRO-SKY, ROWLEY, McEWEN, JOHNSON and POPOVICH, JJ.
   BROSKY, Judge:

Commencing January 30, 1978, appellant was tried on charges of rape and statutory rape. A mistrial was declared when the jury could not reach a unanimous verdict and a new trial was held in April, 1978. At the conclusion of the second trial, appellant was convicted of rape and a direct appeal followed. Subsequently, appellant filed a pro se P.C.H.A. petition raising the claim that he had received ineffective assistance from his trial counsel. The petition was denied following a hearing at which appellant was represented by court appointed counsel. Before us are the consolidated appeals from the judgment of sentence and denial of the P.C.H.A. petition. Because we find counsel to have been ineffective, we reverse and remand for a new trial.

Appellant, who is black, was tried on charges stemming from the rape of a young black girl. Under such circumstances, where defendant and victim are members of the same race, racial prejudice would not normally be at issue. Appellant contends, however, that the prosecution made attempts to arouse prejudicial feelings in the jury by pointing out to them appellant’s wife, who is white.

Appellant’s argument before us is that at the first trial the prosecutor improperly drew attention to his wife and that this should have put his attorney on notice that he might point her out at the second trial. Armed with this knowledge, he contends that counsel should either have filed a motion in limine to prohibit such an identification, requested that the voir dire questions probe the jurors’ racial prejudices, or objected to the identification when it was made at the second trial and moved for a mistrial. Trial counsel took no action.

In assessing the merits of appellant’s claim, we are guided by the following principles.

We must first determine whether the claim abandoned by counsel is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Even if the claim is of arguable merit, counsel will not be found ineffective unless we conclude that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized. Id., 472 Pa. at 277, 278, 372 A.2d at 695-6.

Finally, counsel will be found to have been effective as soon as it is determined that his decision had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

With these principles in mind, we turn to appellant’s claim which stems from the following facts.

Mr. Taliaferro testified at both trials and was cross-examined by the prosecutor each time. The prosecuting attorney was the same at the trials. During the first trial, the prosecutor asked the following questions of appellant:

Q. How tall are you, sir?
A. I’m approximately 6'7".
Q. You heard the police officer indicate that the description he received from Lisa Simms was that it was a black male, approximately 6'7", medium Afro?
A. Yes, I did hear that.
Q. You’re married with one child. How old is your child?
A. She’ll be three in February.
Q. Where were you married?
A. Well, basically it’s a common law agreement until this thing gets over with and then, you know, we’ll have to go to the court as far as that goes.
Q. So there’s never really been any formal ceremony, anything of that nature?
A. Not really, no, sir.
Q. Is that your wife there in the back of the court room in the second row?
A. Yes, sir, with the—I guess it’s a purple sweater she’s got on.
Q. What’s her name?
A. Jeannie.
Q. Does she go by her name or your name?
A. She goes by her name, basically.
Q. How about your daughter?
A. She’s still carrying her mother’s name.

Shortly after this exchange, the prosecutor asked appellant where he was living at the time the crime was committed. Appellant named the locality in which he resided and the prosecutor then queried: “Were you living with your woman in the back of the court room, or with your mother?”

At the second trial, the prosecutor cross-examined appellant as to his account of his whereabouts at the time the crime was committed. Appellant testified that he was in Buffalo, New York, where he had driven in a car owned by his mother.

The cross-examination continued:

Q. Where were you living at the time?
A. I was living with my mother.
Q. Is this your wife in the back of the courtroom in the green pants and orange sweater?
A. Yes, sir, it is.
Q. And that’s your common law wife? You never had a ceremony with her or anything like that?
A. Well, we were planning on having one now but being as I’m here I can’t very well have that. But we were— we are common law.
Q. How long have you been living with her before February 28th?
A. Well, off and on I’d say for the last five years.
Q. And you have a child?
A. Yes, sir.

The Commonwealth argues that any objection to the cross-examination at the second trial (which is the only trial under our consideration) would have been frivolous and that counsel therefore cannot be found ineffective due to his inaction. It is the Commonwealth’s contention that the prosecutor pointed out appellant’s wife to suggest to the jury that appellant and his wife had a close relationship. Presumably, such an inference as to their relationship would weaken the credibility of appellant who had testified that immediately subsequent to the date of the crime, he had gone to Buffalo to seek employment and had left town without notifying his wife. The Commonwealth argues that it sought on cross-examination to show that the departure constituted flight and to that end, wanted to explore the closeness of the relationship between appellant and his wife.

Appellant’s first trial took place 11 months after the crime was committed; the second was held 14 months after the incident. We question whether the appearance of appellant’s wife at trial in 1978 is probative of the nature of their relationship in February, 1977. Her mere presence itself says nothing about the relationship even at the time of trial; it certainly provides no clue as to how appellant and his wife were getting along over a year earlier.

Furthermore, the Commonwealth’s stated purpose in eliciting the subject cross-examination testimony was to cast doubt on appellant’s claim that he had gone to Buffalo to search for work without telling his wife. However, the prosecutor also inquired of appellant as to the terms of his marriage, that is, whether it was common law or had been formalized by a ceremony. Even now, the Commonwealth makes no argument that such information was in any way relevant to their case.

More important, however, than the irrelevance of the subject cross-examination, is the prejudicial impact which it may have had on the jury. In Commonwealth v. Long, 258 Pa.Super. 312, 319, 392 A.2d 810, 813 (1978), this court wrote:

The test for this type of comment, as for all improper remarks, is whether the unavoidable effect of the prosecutor’s language would be to prejudice the jury forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.

Id., 258 Pa.Super. at 319, 392 A.2d at 813.

The fact that the prosecutor twice delved into the question of appellant’s common law marriage and twice had appellant identify his wife indicates unmistakeably that his course was consciously chosen. There can be no doubt that in our society today there are those in whom interracial relationships arouse extreme prejudicial feelings. The prosecutor has a responsibility “not to be vindictive or attempt in any manner to influence the jury by arousing their prejudices.” Long, supra.

The ABA Code of Professional Responsibility, adopted by our Supreme Court on February 27, 1974, forbids a lawyer from asking any questions for which a reasonable basis does not exist on relevancy grounds. The Code states:

DR 7-106. Trial Conduct
(A) ...
(B) ...
(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
(2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.

In like vein, the ABA Standards for Criminal Justice, Second Edition, 1980, in Chapter 3, The Prosecution Function, sets forth:

Standard 3-5.7. Examination of witnesses
(a) The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily. Proper cross-examination can be conducted without violating rules of decorum.

Appellant’s trial counsel should have objected to the prosecutor’s introduction of irrelevant evidence which he must have known could be embarrassing and prejudicial to appellant and would divert the jury’s attention away from their duty of weighing the evidence impartially. See Long, supra.

As our Supreme Court said in Commonwealth v. Tirado, 473 Pa. 468, 472, 473, 375 A.2d 336, 338 (1977),

It is central to our concept of a fair trial that the jury must decide the case on the basis of properly presented factual issues, and that extraneous and irrelevant matters should be avoided. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974); Commonwealth v. Hirsch, 455 Pa. 522, 317 A.2d 305 (1974). Appeals to racial or religious prejudice are especially incompatible with the concept of a fair trial because of the likelihood that reason will be dethroned and that bias and emotion will reign.

See also Commonwealth v. Peay, 369 Pa. 72, 85 A.2d 425 (1951) (Stern, J. Concurring).

If the objection came after appellant had responded to the questions and identified his wife, a motion for mistrial would have been in order.

Counsel should have at least raised such an objection, if not as appellate counsel urges, made a motion in limine to prohibit such cross-examination. Counsel was on notice following the first trial that the prosecutor had appealed to the possible racial prejudice of the jurors and he could have tried to prevent such tactics at the second trial.

We are not willing to say, however, that counsel should have sought special voir dire to explore racial prejudice. Except for the improper reference to appellant’s wife, this was a racially neutral case. Voir dire need not have included such questions. See Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981).

Having concluded that counsel was ineffective in not at least having made objection to the prosecutor’s tactics, we reverse and remand for a new trial.

ROWLEY, J., concurs in result.

POPOVICH, J., files dissenting opinion.

HESTER, J., joins dissenting opinion by POPOVICH, J.

McEWEN, J., concurs in dissenting opinion by POPO-VICH, J.

POPOVICH, Judge,

dissenting:

Today, the majority serves notice on all defense attorneys that failure to interpose, at the very least, an objection to any remark by a prosecutor merely associating a defendant with someone of a different race is tantamount to being ineffective. In particular, the majority states that because “the prosecutor had appealed to the possible racial prejudice of the jurors” by making “improper reference” to appellant’s wife’s race, “[trial] counsel was ineffective in not at least having made objection to the prosecutor’s tactics[.]” (Majority Opinion at 698) I cannot subscribe to such a view. Here, disclosure of appellant’s “association” with a member of a different race (in the context of a common law marriage) is not so prejudicial, e.g., as the commission of a crime, that its mere mention at trial warrants entry of an objection by counsel, the absence of which renders counsel ineffective. See, e.g., Commonwealth v. Truitt, 369 Pa. 72, 85 A.2d 425 (1951) (Justice Stern’s Concurring Opinion).

More importantly, however, I take issue with the majority’s conclusionary statement that because the prosecution’s identification of the common law wife (who is white) of the appellant (who is black) during the course of the trial leads inexorably to the creation of an atmosphere “which ... could be embarrassing and prejudicial to appellant and would divert the jury’s attention away from their duty of weighing the evidence impartially[,]” a new trial is necessary. (Majority Opinion at 698)

The fact that counsel fails to object to an irrelevant remark made at trial, regardless of the source, does not justify the enunciation of what this writer considers in the instant case to be a per se rule by the majority granting a new trial in what it considers to be “racially sensitive” circumstances. The reason being, I do not agree that such is the case here. Cf. United States v. Swinehart, 617 F.2d 336 (3d Cir.1980) (new trial awarded if the defendant shows that he was prejudiced by the prosecutor’s comments). As was stated by our own Supreme Court:

“... [W]here the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. The language must be such that its ‘unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.’ The effect of such remarks depends upon the atmosphere of the trial, and the proper action to be taken is within the discretion of the trial court.” (Emphasis added) (Citations omitted) Commonwealth v. Jarvis, 482 Pa. 598, 605, 394 A.2d 483, 487 (1978), quoting Commonwealth v. Stolzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975). Accord Commonwealth v. Olivencia, 265 Pa.Super. 439, 402 A.2d 519 (1979) (SPAETH, J., dissenting on other grounds).

In the instant case, no such prejudice existed. To so find would be an acknowledgement of a deep-seated tendency on the part of the jury “to punish, not because [the appellant] is guilty this time, but because he is a bad man [for having an interracial (marriage) relationship] and may as well be condemned now that he is caught____” Commonwealth v. Truitt, supra, 369 Pa. at 81, 85 A.2d at 429.

Although the series of questions initiated by the prosecutor attendant to the identification of the appellant’s wife in-court may have had no probative value, I cannot agree with the majority that “in our society today there are those in whom interracial relationships arouse extreme prejudicial feelings,” such that “the improper reference to appellant’s wife ... [converted] a racially neutral case[ ]” into one which was racially sensitive. (Majority Opinion at 697 & 698); see Rosales-Lopez v. United States, 451 U.S. 182, 190, 101 S.Ct. 1629, 1635, 68 L.Ed.2d 22, 29 (1981) (“There is no constitutional presumption of juror bias for or against members of any particular racial or ethnic groups.”). If such were not the case, carrying such reasoning to its logical end, we would have to find that in those situations in which information was produced at trial linking the accused with a religious, political or ethnic group would per se transpose the case “from one of [religious, political or ethnic] neutrality to one which was [religiously, politically or ethnically] sensitive.” Ergo, if counsel failed to interject an objection to such information he would be labelled ineffective, and to remedy the misfeasance, if conviction occurred, a new trial would have to be granted. With such result, I cannot agree. See Ristaino v. Ross, 424 U.S. 589, 596 n. 8, 96 S.Ct. 1017, 1021 n. 8, 47 L.Ed.2d 258, 264 n. 8 (1976) (“In our heterogeneous society policy as well as constitutional considerations militate against the divisive assumption—as a per se rule—that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion. See Connors v. United States, 158 U.S. 408, 415, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895).”).

When examining the factual circumstances instantly, this case is truly sui generis. For example, cases have been categorized as racially sensitive where: 1) the remark attributed a general characteristic to a sector of the population without regard to the individual circumstances presented in a given case, Commonwealth v. Tirado, 473 Pa. 468, 375 A.2d 336 (1977); or 2) the potentially prejudicial impact of the affiliation was central to the criminal episode, i.e., both the accused and the victim were of different races and the sexual nature of the crime involved would have been emphasized unduly by high-lighting this fact at trial. See Commonwealth v. Christian, 480 Pa. 131, 389 A.2d 545 (1978) and Commonwealth v. Brown, 464 Pa. 625, 347 A.2d 716 (1975). To the contrary, the facts involved in the case before us are the antithesis of those found in the preceding cases, e.g.:

1) The prosecution’s remark did not ascribe to appellant any general characteristic peculiar to a certain ethnic, racial, or religious background; and
2) Both appellant and the victim were of the same race, and any racial differences concerned matters which were not germane to the evidence surrounding the criminal episode.

This jurist finds that the prosecutor’s probing of the accused on his marital status was not so egregious that its “ ‘unavoidable effect [was] ... to prejudice the jury, forming in their minds fixed bias and hostility toward the [appellant], so that they could not weigh the evidence and render a true verdict.’ ” Commonwealth v. Jarvis, supra, 482 Pa. at 605, 394 A.2d at 487. Thus, I cannot agree that a new trial is warranted to rectify the prosecution’s actions. Moreover, the inquiry was not, in this writer’s mind, equivalent to those remarks which have been condemned traditionally as “blatantly appealing to the prejudice, bias, and passions of the jury.” Commonwealth v. Olivencia, supra, 265 Pa.Super. at 451, 402 A.2d at 525. Accordingly, appellant’s trial counsel was not ineffective for failing to object to the prosecutor’s line of questioning. Hence, based on the particular facts of this case, I must register my dissent to the awarding of a new trial.

HESTER, J., joins in this dissenting opinion.

McEWEN, J., concurs in dissenting opinion.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 3121.

      . Id. § 3122.

      . Post Conviction Hearing Act, Act of January 25, 1966, P.L. 1580, § 9; 19 P.S. 1180-1 et seq.

      . We note the lower court’s observation on page 9 of its opinion that “the Commonwealth’s evidence of flight was not very compelling when it was undisputed that the defendant on hearing there was a warrant out for his arrest, voluntarily surrendered himself to the police.”

      . In fact, it seems to us that if the Commonwealth was seeking to show that appellant’s relationship with his wife was more than casual, it would not want to emphasize that the marriage was a common law one.