author: WIEAND, Judge:

text:
    482 A.2d 249
    RIDGID FIRE SPRINKLER SERVICE, INC., Appellant, v. S. Solis CHAIKEN and Selma Chaiken, H/W, and Ronald C. Carr.
    Superior Court of Pennsylvania.
    Argued March 14, 1984.
    Filed Sept. 7, 1984.

      David C. Harrison, Philadelphia, for appellant.
    Joseph Rappaport, Philadelphia, for appellees.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Ridgid Fire Sprinkler Service, Inc. has appealed from an order of the trial court opening a judgment obtained by default against Selma Chaiken. Because Mrs. Chaiken’s petition to open was not timely filed and because she failed to offer a reasonable excuse for her default, we conclude that it was an abuse of discretion to open the judgment. Therefore, we reverse.

A petition to open a default judgment is an appeal to the court’s equitable powers. Boyle v. Horstman, 311 Pa.Super. 109, 113, 457 A.2d 518, 520 (1983); Provident Credit Corp. v. Young, 300 Pa.Super. 117, 123, 446 A.2d 257, 260 (1982); Penneys v. Richard Kastner Co., 297 Pa.Super. 167, 169, 443 A.2d 353, 354 (1982). The grant or denial of a petition to open a default judgment is a matter vested in the sound discretion of the trial court, whose decision thereon will not be reversed in the absence of an abuse of discretion or error of law. Bildstein v. McGlinn, 320 Pa.Super. 416, 418-419, 467 A.2d 601, 602 (1983); Academy House Council v. Phillips, 312 Pa.Super. 364, 369, 458 A.2d 1002, 1005 (1983); N.H. Weidner, Inc. v. Berman, 310 Pa.Super. 590, 592, 456 A.2d 1377, 1379 (1983). In determining whether a judgment by default should be opened, the court acts as a court of conscience. Kraynick v. Hertz, 443 Pa. 105, 111, 277 A.2d 144, 147 (1971); Bildstein v. McGlinn, supra 320 Pa.Super. at 419, 467 A.2d at 603; Provident Credit Corp. v. Young, supra 300 Pa.Super. at 124, 446 A.2d at 261. “In order to open a default judgment, the Petition to Open must be: (1) promptly filed, (2) state an adequate excuse why a timely answer was not filed, and (3) show a meritorious defense.” Keystone Boiler Works, Inc. v. Combustion & Energy Corp., 294 Pa.Super. 145, 148, 439 A.2d 792, 794 (1982). See also: Sines v. Packer, 316 Pa.Super. 500, 503, 463 A.2d 475, 477 (1983); Triffin v. Thomas, 316 Pa.Super. 273, 277, 462 A.2d 1346, 1348-1349 (1983); Carson Pirie Scott & Co. v. Phillips, 290 Pa.Super. 353, 356, 434 A.2d 790, 791 (1981). “All three criteria must be met, and the three requirements must 'coalesce’.” Keystone Boiler Works, Inc. v. Combustion & Energy Corp., supra, 294 Pa.Super. at 148, 439 A.2d at 794; American Vending Co. v. Brewington, 289 Pa.Super. 25, 28, 432 A.2d 1032, 1034 (1981).

Appellant filed a complaint in assumpsit against S. Solis Chaiken, his wife Selma, and Ronald C. Carr to recover the unpaid cost of services rendered and fixtures installed upon real estate allegedly owned at various times by the several defendants. Service of process was made on Mr. and Mrs. Chaiken on July 10, 1981, when a deputy sheriff personally handed a copy of the complaint to Mrs. Chaiken at the Chaiken home. When the Chaikens failed to respond to the complaint, a notice of intent to take a default judgment was mailed by appellant to the Chaikens at their home on August 7, 1981. On August 24, 1981, judgment by default was entered against the Chaikens in Philadelphia, and notice thereof was sent to Mr. and Mrs. Chaiken by the prothonotary pursuant to Pa.R.C.P. 236. The judgment was thereafter transferred to Montgomery County on October 19, 1981, and notice of the entry of judgment in that county was also given. A Petition to Open the default judgment was filed by the Chaikens in Philadelphia County on December 10, 1981. The trial court granted the petition with respect to Mrs. Chaiken but refused to open the judgment against Mr. Chaiken. This timely appeal followed from the order opening the judgment against Mrs. Chaiken. For purposes of this opinion, Mrs. Chaiken only will be referred to as the “appellee.”

In a Petition to Open Judgment, appellee asserted that she had never had any ownership interest in the premises to which appellant had made repairs and that she had not been a party to any contract for such repairs. She alleged that she had been ill when the complaint was served, had mislaid the complaint, and had neglected to call it to her husband’s attention. She cited as a reason for opening the judgment that appellant had failed to forward a copy of the complaint to her lawyer and that appellant had also failed to send to her lawyer a notice of intent to enter judgment by default. The trial court based its decision to open judgment on these considerations. Appellant contends that this was error. It is argued that appellee’s default was unexplained and that her dilatoriness in failing to file promptly a petition to open should have precluded the opening of the judgment. Appellant contends also that it was error for the trial court to require that notice under Pa.R.C.P. 237.1(a) be given to counsel who had not previously entered an appearance of record on appellee’s behalf.

Timeliness of a petition to open a default judgment is measured from the date of notice that the default judgment has been entered. Ruczynski v. Jesray Construction Corp., 457 Pa. 510, 512, 326 A.2d 326, 328 (1974); Kabanow v. Kabanow, 239 Pa.Super. 23, 26 n. 3, 361 A.2d 721, 723 n. 3 (1976). Appellee conceded in depositions that she had received notice of the entry of judgment. Moreover, Joseph Rappaport, Esquire, representing himself to be the Chaikens’ lawyer, had called appellant’s counsel three days after entry of the judgment. Nevertheless, a petition to open the judgment was not filed until December 10, 1981, 108 days after the judgment had been entered in Philadelphia County and more than seven weeks after it had been transferred to Montgomery County. Such a petition was not timely. See: McCoy v. Public Acceptance Corp., 451 Pa. 495, 500, 305 A.2d 698, 700 (1973) (two and one-half weeks); Pappas v. Stefan, 451 Pa. 354, 358, 304 A.2d 143, 146 (1973) (55 days); Dodson v. N. John Cunzolo & Associates Architectural Clay Products, Inc., 326 Pa.Super. 283, 288, 473 A.2d 1093, 1096 (1984) (2 months); Bottero v. Great Atlantic & Pacific Tea Co., 316 Pa.Super. 62, 70, 462 A.2d 793, 797-798 (1983) (unexplained six week delay following negotiations); Mahler v. Emrick, 300 Pa.Super. 244, 247, 446 A.2d 321, 323 (1982) (2 months); Keystone Boiler Works, Inc. v. Combustion & Energy Corp., supra 294 Pa.Super. at 150, 439 A.2d at 795 (3 months); American Vending Co. v. Brewington, supra, 289 Pa.Super. at 33, 432 A.2d at 1036 (2½ months); Hatgimisios v. Dave’s N.E. Mint, Inc., 251 Pa.Super. 275, 276-277, 380 A.2d 485, 486 (1977) (37 days too long if unexplained); Quatrochi v. Gaiters, 251 Pa.Super. 115, 124, 380 A.2d 404, 409 (1977) (63 days); Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 537-538, 375 A.2d 368, 371 (1977) (47 days); Carducci v. Albright Galleries, Inc., 244 Pa.Super. 48, 51, 366 A.2d 577, 579 (1976) (54 days); Hofer v. Loyal Order of Moose, 243 Pa.Super. 342, 346, 365 A.2d 1254, 1256 (1976) (47 days); Reliance Insurance Cos. v. Festa, 233 Pa.Super. 61, 64-65, 335 A.2d 400, 401-402 (1975) (71 days).

Appellee contended in the court below, as she does on appeal, that the delay should be excused because her attorney had been attempting to obtain a satisfactory settlement from counsel for appellant. There was no evidence, however, that appellant or its counsel had engaged in conduct designed to confuse appellee or lull her into a false sense of security. Under these circumstances, it does not adequately explain the delay in filing a petition to open that appellee’s counsel was attempting to obtain a settlement for less than the full amount of the judgment. Hersch v. Clapper, 232 Pa.Super. 550, 553, 335 A.2d 738, 741 (1975). Accord: Kabanow v. Kabanow, supra 239 Pa.Super. at 27, 361 A.2d at 723. Compare: Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 446 A.2d 641 (1982). In the instant case, appellee’s counsel called appellant’s counsel on August 27, 1981. During this conversation, counsel denied that appellee or her husband was liable for work done while Carr was record owner of the premises and stated that counsel would be in touch with appellant’s counsel after he had had a chance to discuss the claim further with appellee and her husband. There was no further communication between the parties or their attorneys for sixty-one days. Finally, on October 27, 1981, after the judgment had been transferred to Montgomery County and a new notice had been sent to appellee and her husband, their counsel, who still had not entered an appearance, called appellant’s counsel once again. Offers of settlement thereafter made on October 27 and November 11, 1981 were rejected by appellant. A petition to open the judgment was not filed until December 10, 1981. These facts do not present a scenario sufficient to excuse appellee’s delay in filing a petition to open the default judgment. Despite knowledge of the default judgment, appellee and her counsel chose to ignore the judgment for two months until appellant took further action by having the judgment transferred to the county of appellee’s residence. Even then, another seven weeks expired without action. It cannot be said under these circumstances that appellee exercised due diligence in protecting her rights. Rather, she “slept on [those] rights and thus waived any claim to any defect in the judgment not appearing of record.” Penn Clair Construction Co. v. Eden Roc Country Club, 294 Pa.Super. 377, 381, 440 A.2d 514, 516 (1981) (footnote omitted).

Appellee also failed to explain adequately the default which resulted in the entry of judgment against her. Appellant’s complaint, duly endorsed with notice to defend, was served personally on appellee on July 10, 1981. On August 7, 1981, the notice of default required by Pa.R.C.P. 237.1(a) was sent and, as confirmed by the depositions of appellee’s husband, was received. A default judgment was entered on August 24, 1981, a period of forty-five days after service of the complaint.

Appellee said that she had realized the complaint was a legal document but had left it on the windowsill in the dining room and went to bed because she had had a bad cold. The complaint was then forgotten because appellee’s father and sister were visiting her. Appellee’s failure to act in response to the notice of default is also unexplained. Appellee’s temporary illness did not excuse the cavalier manner in which she and her husband treated the complaint and the subsequent notice of default. Although unfortunate, temporary illness in the form of a cold which does not impair one’s ability to read or understand the papers served will not excuse carelessness which permits a complaint to remain unanswered for forty-five days. See: Bahr v. Pasky, 293 Pa.Super. 404, 411, 439 A.2d 174, 177-178 (1981).

The opinion of the trial judge discloses that he, too, was dissatisfied with appellee’s explanation for her default in answering appellant’s complaint. He excused the default solely because appellant had not sent to appellee’s attorney a copy of the notice of intention to enter judgment by default. This was error. There is no requirement that notice be given to counsel who has not entered an appearance; and failure to give such unnecessary notice will not excuse a defendant’s default.

Pa.R.C.P. 237.1(a) provides as follows:

No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.

(emphasis added). This rule requires that notice of an intention to enter judgment by default be given “to the party against whom judgment is to be entered and to his attorney of record, if any____” In this case, notice was given to appellee and her husband. However, no appearance had been entered on their behalf by an attorney. Thus, there was no attorney of record.

“The purpose of Rule 237.1 is to assure that default judgment is not entered without prior notice to the defendant.” Brown v. Great Atlantic & Pacific Tea Co., 314 Pa.Super. 78, 85, 460 A.2d 773, 777 (1983). The rule “was enacted because of the inequities which inured to a party when a default judgment was taken without notice on the next day or within a few days after the deadline for filing an answer to the complaint.” Mahler v. Emrick, supra, 300 Pa.Super. at 249, 446 A.2d at 324. It was promulgated in response to an increasing number of “snap judgments,” a practice sharply criticized by this Court. We said that “[ajttempts to utilize every niggling procedural point for maximum advantage demean the legal profession, reducing its procedures to a vulgar scramble. No doubt it is for this reason that in so many cases, notice of intent to take a default judgment, or the lack thereof, is properly made a significant factor in reaching a just decision.” Carson Pirie Scott & Co. v. Phillips, supra 290 Pa.Super. at 358, 434 A.2d at 792, quoting Brooks v. Surman Dental Lab, Inc., 262 Pa.Super. 369, 374, 396 A.2d 799, 802 (1979). Both the letter of the rule and its spirit were served in the instant case. Judgment was not taken immediately after appellee and her husband went into default. Notice of an intention to enter judgment was given as required. The judgment, therefore, cannot be characterized as a “snap judgment.”

The requirement that notice be given to counsel of record is not burdensome and serves as additional protection against “snap judgment.” It would be unreasonable, however, to impose upon an innocent plaintiff the burden of ascertaining at his peril the identity of defendant’s counsel when no attorney has entered an appearance of record. The rule does not impose such an onerous burden. It avoids any requirement that a plaintiff speculate about the identity of attorneys to whom notice should be given. Notice is not required to be given to an attorney who may have represented the defaulting party on some prior occasion in the past. Thus, in the instant case, the fact that appellee’s counsel had discussed appellant’s claim with the latter’s attorney on an occasion more than eight months prior to commencement of suit did not dictate that he receive notice under Pa.R.C.P. 237.1(a). Only counsel of record is entitled to such notice.

Finally, it is not entirely without significance that the trial court, which opened the default judgment entered against appellee, found insufficient equitable reasons to open the judgment against appellee’s husband. The defendants were husband and wife and resided together in the same house. The circumstances pertaining to the default of the husband and his failure to act promptly to open the judgment were the same as those which pertained to appellee. Although the court found that appellee had a potential defense if she did not contract for the work done by appellant, her husband had alleged that he, too, had a defense in that, except for $854.00, he had not contracted for the work done by appellant.

Because appellee’s default in responding to the complaint was not explained or excused and because the delay in moving to open the default judgment after it had been entered demonstrated additional dilatoriness, we are constrained to conclude that the judgment should not have been opened and that to do so was an abuse of discretion.

Order reversed and judgment reinstated.

      . The action against Carr is not relevant to this appeal; and, therefore, we make no further reference to it in this opinion.

      . S. Solis Chaiken filed no appeal from the order refusing to open the judgment entered against him.


source: Caselaw Access Project

author: MONTEMURO, Judge: WICKERSHAM, Judge,

license: Public Domain

text:
    482 A.2d 255
    COMMONWEALTH of Pennsylvania v. Lawrence GRAHAME, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1983.
    Filed Sept. 7, 1984.
    Petition for Allowance of Appeal Denied Feb. 8, 1985.

      Gregory R. Reed, Easton, for appellant.
    Michael Yedomsky, Assistant District Attorney, Easton, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of sentence. On May 9, 1981, a jury found the appellant, Lawrence Grahame, to be guilty of robbery, recklessly endangering another person and conspiracy. The appellant filed timely post-verdict motions which were argued to the court en banc. On April 30, 1982, the court issued an order and opinion denying these motions. On July 16, 1982, the appellant was sentenced to seven and one-half (7x/2) to fifteen (15) years imprisonment on the charge of robbery, one (1) to two (2) years imprisonment on the charge of recklessly endangering another person, and one (1) to two (2) years imprisonment on the charge of conspiracy. All sentences were imposed so as to run concurrently. This timely appeal followed.

The appellant asks us to consider multiple allegations of error by the trial court; however, we need only consider the appellant’s contention that the court erred in denying the appellant’s demurrer to all charges for want of sufficient evidence to submit the case to the jury.

We note initially that for purposes of ... [his] demurrer,

... [appellant] admitted all the facts which the Commonwealth’s evidence tended to prove and all inferences reasonably deducible from those facts. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976); Act of June 5, 1937, P.L. 1703, No. 357, § 1, 19 P.S. § 481. In ruling on a demurrer the proper test to be applied by the trial court is whether the Commonwealth’s evidence and all reasonable inferences therefrom is sufficient to support a finding by the trier of fact that the accused is guilty beyond a reasonable doubt. Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977). (Footnote omitted).

Commonwealth v. Wimberly, 488 Pa. 169, 171, 411 A.2d 1193, 1194 (1979). See also, Commonwealth v. Gilliard, 300 Pa.Super. 469, 446 A.2d 951 (1982).

The evidence presented by the Commonwealth was essentially the testimony of five witnesses: Pamela Kranich, Alton Parks, Nicholas E. Englesson, Detective Joseph Mugavero and Donald Kowalski.

Pamela Kranich testified that on December 16, 1980, she was employed as a cashier at the Food Lane Supermarket on Berwick Street in Easton. At approximately 7:30 P.M., a young black male entered the store. Ms. Kranich recognized the male as Alton Parks, whom she had known previously. Parks stood near the door for a few minutes, and then approached Kranich. He inquired if the store carried “hats”. Kranich replied negatively.

Parks left the store, but returned after a few minutes with two other black males. At the outset of Mrs. Kranich’s testimony, she stated, “he came back in with two other gentlemen, which [sic] are sitting right in front of us.” (N.T. at 23). She identified one of the men as appellant’s co-defendant, Darnell Williams. The prosecutor then asked:

Q. I repeat my question, where was Mr. Grahame at the time?
A. Standing next to Darnell.
Q. When you say Mr. Grahame, is that person present here in the courtroom today?
A. Yes he is.

(N.T. at 24-25). She then pointed out the appellant.

The three men went to the health and beauty aids section of the store, remaining there for a few minutes. They then proceeded to the “cupcake aisle.” One of the men picked up a cupcake or pie and brought it up to the register. When Ms. Kranich rang up the purchase, Darnell Williams produced a sawed-off shotgun. The three men reached into the open cash drawer and took all of the money, which they stuffed into a gym bag. The men left and Ms. Kranich alerted the police by means of a security alarm.

Approximately two to three weeks later, Detective Mugavero showed an array of six to eight photographs to Ms. Kranich from which she was able to pick out a photograph of Darnell Williams as one of the men who robbed the store. On March 18, 1981, Mrs. Kranich, accompanied by Detective Mugavero and Assistant District Attorney Nicholas Englesson, went to Northampton County Prison to conduct a line-up. The first line-up was comprised of five males, but did not include any of the alleged perpetrators of the robbery. Ms. Kranich did not identify anyone as one of the robbers. A second line-up was conducted; this one comprised of ten males including the appellant. Ms. Kranich failed to identify the appellant as one of the robbers. At the time of the line-up, she admitted to defense counsel that she did not get a good look at the third man. (N.T. at 66). Ms. Kranich also testified, thusly:

Q. How was the lighting in the store that evening?
A. Clear.
Q. Clear. About as clear as the courtroom today? A. Yes.
Q. So you had no problem whatsoever seeing these perpetrators that came into the market?
A. Yes.
Q. You did not have any problem, did you?
A. No.
Q. You got a good look at them?
A. I only got a look at two of them.
Q. Who are the two you got a good look at?
A. Alton Parks and Darnell Williams.
Q. Did you get a good look at the gentlemen seated over there to my left?
A. I took a quick glance.
Q. But not a good look?
A. No.
Q. Did you ever see him before?
A. No, I have not.
Q. Did you ever see him after?
A. No.
Q. You did not?
A. No.
Q. Do you recall having a preliminary hearing on this matter?
A. Yes, I do.
Q. So you saw him there, didn’t you?
A. Yes.
Q. Okay. Do you recall having a line up which you were present concerning this case?
A. Yes.
Q. And you saw him there, too, didn’t you?
A. I wasn’t sure.
Q. Well, did you or didn’t you?
MR. YEDOMSKY: She just testified she was not sure.
THE COURT: The objection is sustained.
Q. You do not know whether or not he was present at the line up?
A. No.

(N.T. at 56-57). She further admitted that at the preliminary hearing in this matter she had testified that “All blacks look alike.” (N.T. at 61). Cross-examination of Ms. Kranich concluded with this exchange:

Q. How many times did you tell me, if you remember, that you did not get a good look at the third person?
A. Many of [sic] times.
Q. Many of [sic] times. One was at the line up, correct?
A. Yes.
Q. And once you testified under oath at the preliminary hearing that you did not get a good look at the third guy, correct?
A. Yes.
Q. And right here at trial, before these 12 jurors, you are stating that you did not get a good look at the third person, right?
A. Right.
Q. And you could not pick him out in a line up, either, could you?
A. No.
Q. So, basically, Miss Kranich, you really do not know who that third person was, do you? Do you, really?
A. No.

(N.T. at 66-67).

On redirect examination, the prosecutor attempted to rehabilitate Ms. Kranich with respect to her identification testimony:

Q. Okay. You identified Alton Parks as being one of the perpetrators; is that correct?
A. Yes.
Q. Was Darnell Williams one of the people who robbed you?
A. Yes.
Q. Was Lawrence Grahame one of the people who, also, robbed you?
A. I don’t remember.

(N.T. at 70-71).

The Commonwealth thereafter called Alton Parks as a witness. Parks testified that he robbed the Food Lane Market, “but these two [the appellant and his co-defendant] didn’t.” (N.T. at 77). Parks was directed to tell the court the identities of the other two perpetrators, but he refused. The Commonwealth made a plea of surprise and asked to continue examination of Parks as of cross-examination. The Commonwealth’s argument that they were surprised was premised on an oral statement allegedly made by Parks to Detective Mugavero implicating the appellant and Williams. Permission was granted by the court; however, the prosecutor never asked Parks about this statement in the Commonwealth’s case-in-chief.

Thereafter, the Commonwealth produced the testimony of Assistant District Attorney Nicholas Englesson, who testified about the conditions at the line-up of March 18, 1981. The Commonwealth then offered Detective Mugavero as a witness. Detective Mugavero testified that he was the investigating officer; that he arrested and interviewed Alton Parks; that he conducted the photographic array which included the photograph of Alton Parks and the photographic array which included the photograph of Darnell Williams. He further testified that he was at Alton Park’s Juvenile Proceeding; the Preliminary hearings for Darnell Williams and the appellant; the suppression hearing for Darnell Williams, and the line-up for Lawrence Grahame. On redirect examination, the Detective testified that Ms. Kranich identified the appellant at a preliminary hearing. An objection to the question that led to this answer was sustained, and the jury was instructed to disregard the answer. Once again, the Commonwealth failed to inquire about Park’s statement implicating the appellant.

Finally, the Commonwealth offered the testimony of Donald Kowalski, the Food Lane Manager, who testified that approximately one thousand dollars was missing from the store.

Co-defendant, Darnell Williams, testified in his own behalf and offered an alibi as to his whereabouts on the day of the robbery. The appellant, having demurred to the Commonwealth’s case offered no evidence in his own behalf.

On rebuttal, the Commonwealth again called Alton Parks as a witness. The prosecutor asked:

“Isn’t it a fact that after you were arrested you admitted to Detective Mugavero that you had robbed the market, and not only that, but that Darnell Williams and Mr. Grahame were along with you when you robbed it?”

(N.T. at 158).

To which Parks replied, “I don’t remember?” The question was posed again and Parks testified that he did not make that statement (N.T. at 160-61).

Reviewing all of the testimony produced by the Commonwealth at trial, we must conclude that the trial court erred in denying appellant’s demurrer to all charges. The Commonwealth has proven that a robbery was committed; that it was committed by three black males; and that two of the males were Alton Parks and Darnell Williams. The appellant, alleged by the Commonwealth to be the third black male involved, is connected to the crime by the identification testimony of Pamela Kranich, who later stated that she did not get a good look at the third man; that she did not know who the third man was; and that she did not remember if Lawrence Grahame was one of the robbers. Her testimony is further weakened by her failure to identify Mr. Grahame at a pretrial line-up, and by her statement that “[a]ll blacks look alike.”

We are cognizant of the judicial admonitions concerning the province of the jury:

The resolution of conflicts in the testimony presented at trial and the determination of the credibility of the witnesses is solely within the province of the jury. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978). A jury is free to believe all or none of the testimony presented at trial. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979), and discrepancies in testimony are for the jury to resolve. Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978).

Commonwealth v. Webster, 490 Pa. 322, 327-328, 416 A.2d 491, 493 (1980). So too are we cognizant of the Commonwealth’s burden to prove the identity of the perpetrator of a crime:

Proof beyond a reasonable doubt of the identity of the accused as the person who committed the crime is essential to a conviction. Commonwealth v. Reid, 123 Pa.Super. 459, 187 A 263 (1936). The evidence of identification, however, needn’t be positive and certain in order to convict, although any indefiniteness and uncertainty in the identification testimony goes to its weight. Commonwealth v. Mason, 211 Pa.Super. 328, 236 A.2d 548 (1967).

Commonwealth v. Hickman, 453 Pa. 427, 430, 309 A.2d 564, 566 (1973). (Emphasis in original). We also reiterate the rule set forth in Commonwealth v. Kloiber, 378 Pa. 412, 424-25, 106 A.2d 820, 826, cert. denied, Kloiber v. Pennsylvania, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954).

Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony need not be received with caution — indeed the cases say that this positive testimony as to identity may be treated as the statement of fact.

See also, Commonwealth v. Hickman, supra. Cf. Commonwealth v. Tedder, 458 Pa. 663, 330 A.2d 841 (1975) (grant of demurrer affirmed by an equally divided court).

Herein, although Ms. Kranich initially identified the appellant, as well as Parks and Williams, her testimony as to the appellant was decidedly uncertain. In comparison her identification of Parks and Williams remained unshaken even on cross-examination. Additionally, we note Ms. Kranich was unable to pick the appellant out of a line-up, whereas she identified photographs of both Williams and Parks in separate photographic arrays. Finally, we note the Commonwealth’s abject failure to rehabilitate her testimony with respect to the identification of appellant.

In short, the Commonwealth failed to prove its case against the appellant. Consequently, the judgment of sentence is vacated and the appellant is discharged.

Judgment of sentence vacated.

WICKERSHAM, J., files dissenting opinion.

WICKERSHAM, Judge,

I DISSENT!

On June 9, 1981, trial proceedings were held before the Honorable Michael V. Franciosa, Judge of the Court of Common Pleas of Northampton County in a criminal trial involving Lawrence Grahame, Jr., appellant.

One of the principal Commonwealth witnesses was Pamela Kranich. She testified that on December 26, 1980 at about 7:30 p.m. she was working at a supermarket called Food Lane. She was 19 years of age at the time. Early in her direct testimony she advised the court and jury that two persons entered the store, got a cupcake and a pie and came to her register. At that point she said that Darnell Williams pulled a gun on her (N.T. 23). She said that Darnell Williams was the person in the courtroom on trial and she pointed him out as the “gentleman in the white sweater.” She testified further that Lawrence Grahame, Jr., appellant herein, was standing next to Darnell and she stated that Grahame was the person present in the courtroom on trial. She pointed him out (N.T. 25). She said that Lawrence Grahame was carrying a gym bag and that he and Williams and a third person by the name of Alton Parks emptied her drawer of money and put it in the gym bag that Lawrence Grahame was carrying. They left and she pushed the security alarm and called her boss.

Her identification of the defendant was positive on direct examination. Any subsequent uncertainty in her identification, developed during questioning by defense counsel, was for the jury. I agree with the conclusion of the Northampton County Court En Banc on this issue where they stated:

When a case does not involve any suggestive identification proceedings, the Commonwealth’s burden is simply to introduce evidence solid enough to avoid conjecture. Commonwealth v. Crews, 436 Pa. 346, 260 A.2d 771 (1970). After that, it is up to the jury to find guilt beyond a reasonable doubt, if at all. Commonwealth v. Hurd, 268 Pa.Super. 24, 407 A.2d 418 (1979). Thus, in Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976), the failure of the Commonwealth’s witness to identify the accused at a lineup was relevant only to weight and credibility of his subsequent in-court identification.
Under all of the circumstances in the matter before us, we cannot find that the identification was so unreliable that as a matter of law it should not have been accepted by the finder of fact. The witness positively identified the defendant during her direct examination. Although she later grew uncertain during the questioning by defense counsel, her in-court identification was buttressed by the description she gave the investigator. Therefore, the jury had ample evidence to sustain the guilty verdict.

Brief for Appellee at iv.

I would affirm the conviction and judgment of sentence.

      . 18 Pa.C.S. § 3901.

      . Id. § 2705.

      . Id. § 903.

      . Approximately one week after the robbery, Ms. Kranich picked out a photograph of Alton Parks from an array of approximately ten pictures.

      . Parks was tried separately because he was a juvenile at the time of the incident.

      . Parks was held in direct criminal contempt by the court for his refusal to answer.

      . Grahame was tried with co-defendant Darnell Williams.


text:
    482 A.2d 260
    William A. McKAY, Appellant, v. SANDMOLD SYSTEMS, INC., Jeltema Electrical, Inc., Beardsley & Piper, Inc. and Pettibone Corporation.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1984.
    Filed Sept. 14, 1984.
    Petition for Allowance of Appeal Denied March 22, 1985.

      Barry M. Simpson, Pittsburgh, for appellant.
    Louis C. Long, Pittsburgh, for appellees.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

In a product liability case involving an alleged defect in the design of industrial machinery, how shall a jury be instructed? What standard shall be applied to determine whether the injury producing machinery was defectively designed? These are the issues presented by the present appeal. They are complex issues and not easily answered. In recent years, the development of the law of products liability in design defect cases has “turned into a swampy quagmire.” J. Wade, On Product “Design Defects” and Their Actionability, 33 Vand.L.Rev. 551, 557 (1980).

William A. McKay, the appellant, was injured by the rotating plow blades of a muller when a fellow foundry worker pushed a starter button and started the machine while McKay was inside the plow area. In an action against Beardsley & Piper, Inc., the manufacturer of the muller, McKay contended that the muller had been defectively designed because it failed to contain an interlock or limit switch which would have made it impossible to start the muller while the inspection door was in an open position. McKay had entered the plow area of the muller through the inspection door to make repairs. He pulled a disconnect button when he entered and the door remained open. He assumed that the supply of electricity would thus be disconnected, but he did not “lock out” the disconnect or test the muller to verify that the electrical supply had been properly disconnected. A short time later, the operator of the muller activated the muller in order to make use of it as a part of the foundry’s sand return system. The operator was unaware that McKay had entered the plow area for maintenance purposes. A jury found that the muller had not been defectively designed and returned a verdict for Beardsley & Piper, Inc., the appellee. Post-trial motions were denied, and judgment was entered on the verdict.

The trial court left it to the jury to determine whether the muller had been designed defectively. It told the jury that appellee was a guarantor of the safety of its product. It said the appellant “must prove to your satisfaction that the product which was sold by the manufacturer was defective at the time it was sold” because it “did not have a limit switch on the door through which the plaintiff entered on the occasion of this accident.” The court did not otherwise define “defective” and provided the jury with no standard which it should apply in determining whether the muller had been defectively designed. The trial court rejected specific points for charge submitted by appellant as follows:

2. The Manufacturer of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for use, and without any condition that makes it unsafe for use.
3. If you find that the muller, at the time it left Beardsley & Piper’s control, lacked any element necessary to make it safe for use or contained any condition that made it unsafe for use, then the muller was defective, and Beardsley & Piper is liable for all harm caused by the defect.

Appellant contends that this was error.

In Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978), the Supreme Court said:

It is a judicial function to decide whether, under plaintiffs averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint.

Id., 480 Pa. at 558, 391 A.2d at 1026. We read this as a reaffirmation of the traditional role of a trial court in determining the adequacy of a plaintiffs evidence to require submission of the cause to a jury. It is the same determination which a trial court makes in response to a defense motion for compulsory nonsuit or for directed verdict. See: Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 467 A.2d 615 (1983).

The Azzarello court then proceeded to fashion a test to be used in determining those instances in which liability should attach in “design defect” cases. It quoted from its decision in Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974) that a manufacturer “is effectively the guarantor of his product’s safety ...” and “impliedly represents that it is safe for its intended use.” Azzarello v. Black Brothers Co., supra, 480 Pa., at 558-559, 391 A.2d at 1026. It also quoted from Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 100, 337 A.2d 893, 902 (1975) that “[t]he seller must provide with the product every element to make it safe for use.” Then, the Court concluded:

For the term guarantor to have any meaning in this context the supplier must at least provide a product which is designed to make it safe for the intended use. Under this standard, in this type case, the jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use. It is clear that the term “unreasonably dangerous” has no place in the instructions to a jury as to the question of “defect” in this type of case.

Azzarello v. Black Brothers Co., supra, 480 Pa., at 559, 391 A.2d at 1027 (footnotes omitted). In a footnote the Court suggested that an adequate charge to a jury, which would express the concept of “defect” while avoiding interjection of negligence concepts, would be as follows:

The [supplier] of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for [its intended] use, and without any condition that makes it unsafe for [its intended] use. If you find that the product, at the time it left the defendant’s control, lacked any element necessary to make it safe for [its intended] use or contained any condition that made it unsafe for [its intended] use, then the product was defective, and the defendant is liable for all harm caused by such defect.

Id., 480 Pa. at 559-560 n. 12, 391 A.2d at 1027 n. 12.

This is the instruction which appellant requested in the instant case. The decision in Azzarello suggests that it was error for the trial court to refuse to charge the jury as requested by appellant. This error requires that a new trial be granted.

However, because the instruction proposed by the Azzarello court has been subjected to such sharp criticism and because a literal use thereof will move Pennsylvania beyond “strict liability” for defective products and create “absolute liability” for harm caused by manufactured products, we choose to examine more closely the instructions to be given juries in design defect cases in the hope that it will be helpful in the developing law of products liability in this Commonwealth.

Professor James A. Henderson, Jr., of Boston University, is most outspoken in his criticism of the test announced in Azzarello. He writes:

Read literally, this definition constitutes a radical departure from the growing consensus that cost-benefit analysis is the appropriate analytic method for determining the design defect issue in close cases. The element that distinguishes this new test from the emerging consensus, of course, is the apparently deliberate elimination of the modifier “reasonable in con nection with the adjective “safe. ” Taken literally, this test condemns as defective any product design that exposes its users to risks, regardless of whether those risks are justified in light of associated benefits.
Combining the several aspects of this unusual decision, a two-step approach emerges: First, the trial judge must screen the adequacy of the plaintiff’s averments in the complaint, somehow employing a cost-benefit analysis to determine the unreasonableness of the design-related risks as a matter of law. Then, assuming that the case is appropriate for jury consideration, the court must instruct the jury to decide the liability issue on the basis of whether the design could possibly (rather than reasonably) have been made safer for its intended use. Viewed most charitably, such an approach to the design defect issue is confused and unworkable. Viewed realistically, the new test announced in Azzarello encourages juries to impose liability merely because plaintiffs have somehow been injured while using defendant’s products.

J. Henderson, Renewed Judicial Controversy over Defective Product Design: Toward the Preservation of an Emerging Consensus, 63 Minn.L.Rev. 773, 801 (1979) (emphasis added).

Writing critically of the jury instruction suggested in Azzarello, Sheila L. Birnbaum, Professor of Law at New York University Law School, says:

Is there any product that cannot be made safer in some way? This instruction calls forth fantastic cartoon images of products, both simple and complex, laden with fail-safe mechanism atop fail-safe mechanism____
... The only function left for the jury under Azzarello is to determine whether the product left the supplier’s control lacking any element necessary for its intended use or possessing any feature that renders it unsafe for the intended use. Thus, the question of reasonableness may not be considered by the jury even in a closely contested case.

S. Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 Vand.L.Rev. 593, 637-639 (1980) (emphasis added) (footnote omitted).

Even Dean Wade, who was quoted extensively in Azzarello, has criticized the test formulated by the Court in that decision. He writes:

We come then to the test to be used in determining whether the product itself is actionable. Some recent cases have gone to extremes in both directions on this matter. Several cases, for example, have taken the position that a product is actionable unless it meets a standard of safety that is much higher in strict liability cases than in a negligence action. Thus, while the Pennsylvania court in Azzarello denied that it was imposing an insurer’s liability, the supplier has been cast “in the role of a guarantor of his product’s safety.” Moreover, the Pennsylvania cases hold that the product is defective if it is “lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use____”
How, one may ask, could any automobile today turn out not to be actionable under these tests? In a collision an automobile may possibly catch fire — no matter where the gas tank is located or how it is protected. Should we require every car to have an automatic sprinkling system, regardless of how that might affect its gasoline mileage? A governor limiting the speed to ten miles per hour would make it much safer — but probably not safe enough. Clearly, safety must be a relative matter, and a balancing process of some sort is necessary to determine whether a product is sufficiently safe — regardless of whether the suit is in negligence or in strict liability.

J. Wade, supra, 33 Vand.L.Rev. at 567-568 (emphasis added) (footnotes omitted).

The Azzarello test can be made more meaningful by the simple expedient of reinserting the word “reasonable.” Thus, a product would be defective if it could reasonably have been made safer for its intended use. This would preserve “the use of familiar terms and thought processes with which courts, lawyers, and jurors customarily deal.” Phillips v. Kimwood Machine Co., 269 Or. 485, 493, 525 P.2d 1033, 1037 (1974). It would do so without returning to a pure negligence approach and would conform to the developing consensus that liability in design cases is to be determined by a balancing of benefits and risks. This approach requires an assessment of the relative costs and benefits of the manufacturer’s design and safer alternatives in order to determine whether a product design is unreasonably dangerous and therefore legally defective. Included among the factors to be considered “are the utility of the product to its user and to the public as a whole, the likelihood that it will cause injury and the probable seriousness of the injury, and the manufacturer’s ability to eliminate the unsafe character of the products [sic] without impairing its utility or making it too expensive.” J. Henderson, supra, 63 Minn.L.Rev. at 776 (footnote omitted). Accord: W. Keeton, The Meaning of Defect in Products Liability Law — A Review of Basic Principles, 45 Mo.L. Rev. 579, 592-593 (1980); J. Wade, On the Nature of Strict Liability for Products, 44 Miss.L.J. 825, 837-838 (1973); 2 L. Frumer & M. Friedman, Products Liability § 16A[4][f][iv] (rev. ed. 1983). See, e.g.: Kerns v. Engelke, 76 Ill.2d 154, 164-167, 28 Ill.Dec. 500, 505-506, 390 N.E.2d 859, 864-865 (1979) (farm machinery designed without protective system for detachable power assembly which struck plaintiff while machine in transit); Turner v. General Motors Corp., 584 S.W.2d 844, 851 (Tex.1979) (automobile design rendering vehicle “uncrashworthy”). See also: Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 884-885 (Alaska 1979) (front end loader lacking roll-over protective shield); Barker v. Lull Engineering Co., 20 Cal.3d 413, 432, 143 Cal.Rptr. 225, 238, 573 P.2d 443, 456 (1978) (“high-lift” front-end loader lacking stabilizer, seat belts, and roll-bar); Elsworth v. Beech Aircraft Corp., 147 Cal.App.3d 384, 391, 195 Cal.Rptr. 226, 231 (1983) (airplane designed so as to have an undue tendency to stall and spin); Ontai v. Straub Clinic and Hospital, Inc., 659 P.2d 734, 739-740 (Hawaii 1983) (x-ray table designed to raise patient to vertical position lacking adequate locking mechanism for footrest); O’Brien v. Muskin Corp., 94 N.J. 169, 181, 463 A.2d 298, 304 (1983) (aboveground swimming pool with design conducive to diving-related injuries; Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 402, 450 N.E.2d 204, 208 (1983) (blade guard on circular saw allowing excessive amount of blade to be exposed); Cremeans v. International Harvester Co., 6 Ohio St.3d 232, —, 452 N.E.2d 1281, 1284 (1983) (tractor without roll bar). This balancing test takes into account the “state of the art” with respect to precautions available to the manufacturer, but the “state of the art” is not conclusive.

Since Azzarello, the Model Uniform Product Liability Act (UPLA) has been published by the Department of Commerce. Section 104 would impose upon an injured claimant the burden of proving “by a preponderance of the evidence that the claimant’s harm was proximately caused because the product was defective.” 44 Fed.Reg. 62,714, 62,721 (1979). The same section suggests that a product is defective only if it is shown to be “unreasonably unsafe.” Id. In order to ascertain if a product is unreasonably unsafe in design, the trier of fact should be instructed in terms of balancing factors of risk and utility. S. Birnbaum, supra, 33 Vand.L.Rev. at 640. Specifically, the trier of fact is called upon to balance “(1) the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms; against (2) the manufacturer’s burden of designing a product that would have prevented those harms, and the adverse effect that alternative design would have on the usefulness of the product.” 44 Fed.Reg. at 62,723. See: Kerns v. Engelke, supra, 76 Ill.2d, at 164-167, 28 Ill.Dec. at 505-506, 390 N.E.2d at 864-865; Turner v. General Motors Corp., supra at 851.

The jury instructions requested by appellant in the instant case and required by Azzarello will have the effect of rendering appellee absolutely liable for the injuries sustained by appellant. Section 402A of the Restatement (Second) of Torts, however, has imposed strict liability upon a manufacturer for a defective product; it has not imposed absolute liability for all risks inherent in the use of a product. A preferable instruction, therefore, would require a jury to balance the benefits and risks inherent in a product in order to determine whether the manufacturer placed a defectively designed product on the market. In applying this test a jury should balance the likelihood that the product would cause injury and the probable seriousness of the injury against the utility of the product to the public as a whole and the manufacturer’s ability to eliminate the unsafe characteristics of the product without impairing its utility or making it too expensive.

This was the issue towards which the evidence in the instant case was directed. Appellee’s liability depended upon whether the muller was rendered defective because it could, be activated while the inspection or access door was open. Appellant contended that the lack of a limit switch rendered the muller defective. Appellee countered that it had considered using such a switch in designing the machine but had consciously decided that such a device would decrease efficiency of the machine without a corresponding increase in safety.

Under these circumstances, appellant was entitled to have the jury instructed regarding the standard to be applied in determining whether the muller manufactured by appellee had been defective. It was the duty of the trial court to clarify the issues to be decided by the jury and to assist the jurors in applying the law to the issues. See: Kimmel v. Yellow Cab Co., 414 Pa. 559, 201 A.2d 417 (1964); Hronis v. Wissinger, 412 Pa. 434, 194 A.2d 885 (1963); Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176 (1963); Butler v. DeLuca, 329 Pa.Super. 383, 478 A.2d 840 (1984); 10 Pa.Std.Prac. §59:1. In strict liability cases under section 402A, utilization of the term “defective” without defining it to the jurors “is almost to ensure that they will be misled.” J. Wade, supra, 44 Miss.L.J. at 832. Accord: Barker v. Lull Engineering Co., supra, 20 Cal.3d, at 428, 143 Cal.Rptr. at 235, 573 P.2d at 453. Accordingly, the failure of the trial court to define the concept of “defectiveness” so as to permit a rational determination thereof was error and requires the granting of a new trial.

We have suggested a balancing test that would move the courts of this Commonwealth closer to the consensus emerging among the courts of other jurisdictions. Nevertheless, we recognize that it is not within our province to change the existing law in this state. We are charged, rather, with following and enforcing those principles which have been adopted and announced by the Supreme Court. The present state of the law is as set forth in Azzarello, and, in accordance therewith, appellant was entitled to have the jury instructed as he requested.

Reversed and remanded for a new trial.

POPOVICH, J., concurs in the result.

      . The jury also found that Sandmold Systems, Inc. and Jeltema Electrical, Inc. had not been negligent in effecting installation of the muller at the foundry of McConway & Torley Corporation. This finding is not challenged in the present appeal.

      . See: 44 Fed.Reg. 62,714 et seq. (1979). UPLA originated with the Federal Interagency Task Force on Product Liability, appointed by President Carter, which conducted an 18 month interagency study on products liability and published a final report on November 1, 1977. As a result of that study and following input from a variety of sources, the Department of Commerce published the final draft of UPLA in the Federal Register on October 31, 1979. For an analysis of the UPLA, see T. Dworkin, Product Liability Reform and the Model Uniform Product Liability Act, 60 Neb.L.R. 50 (1981).


author: MONTGOMERY, Judge:

text:
    482 A.2d 266
    Marlin U. ZARTMAN, Appellant, v. LEHIGH COUNTY HUMANE SOCIETY, Jane Schramm, Mary Ann Faye, and John Kauffeld.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1983.
    Filed Sept. 14, 1984.

      Dennis L. O’Connell, Gilbertsville, for appellant.
    Donald B. Pritchard, Jr., Norristown, for Lehigh County, appellee.
    Malcolm J. Gross, Allentown, for Faye, appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Plaintiff-appellant, Marlin Zartman, appeals from an order sustaining defendants-appellees’ preliminary objections in the nature of a demurrer and dismissing his complaint. For the reasons stated herein, we reverse the order and remand for further proceedings.

On June 1, 1982, appellant, the owner and operator of the Gilbertsville Sales Stables Livestock Auction at Zern’s Market in Montgomery County, filed a complaint in trespass against the Lehigh County Humane Society (Society), Jane Schramm, Mary Ann Faye and John Kauffeld. Comprised of seven counts, the complaint averred that the defendants had defamed Zartman, invaded his privacy, intentionally and maliciously interfered in his business relationships, and unlawfully conspired to further these objectives. These allegations stemmed from two newspaper articles, “Where an animal’s fate is determined by the highest bid,” published on February 24, 1982, in The Morning Call, an Allentown daily newspaper, and “A Life Devoted to Saving Dogs and Cats,” printed in the April 25, 1982, edition of The Philadelphia Inquirer.

Defendant Kauffeld filed an answer which contained new matter. Thus, appellant’s action against Kauffeld was not part of the order here on appeal. In addition, appellant has abandoned his conspiracy claim on appeal. We are not therefore concerned with the Inquirer article which is relevant only to the conspiracy claim and to the claim against Kauffeld.

The remaining defendants filed preliminary objections, including several which were in the nature of a demurrer, asserting that those portions of the Morning Call article characterized by appellant as libelous were incapable of a defamatory meaning. The Honorable Richard S. Lowe agreed, sustained the preliminary objections in the nature of a demurrer, and dismissed the complaint as to the Society, Schramm and Faye. This appeal followed.

Adjudication of a, defamation action in Pennsylvania involves, initially, consideration of § 8343(a) of the Judicial Code, 42 Pa.C.S. § 8343:

§ 8343 Burden of Proof
(a) Burden of plaintiff. — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.

Procedurally, it is the trial court’s function to determine, in the first instance, whether the communication complained of is capable of a defamatory meaning. Rutt v. Bethlehems’ Globe Publishing Co., — Pa.Super. —, 484 A.2d 72 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983). If the court determines that it is capable of a defamatory meaning, it then becomes the jury’s function to decide whether the communication was so understood by its recipients. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Braig v. Field Communications, 310 Pa.Super. 569, 574 n. 2, 456 A.2d 1366, 1369 n. 2 (1983); Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 482, 448 A.2d 6, 10 (1982).

A statement is defamatory if it tends to harm an individual’s reputation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him. Corabi v. Curtis Publishing Co., 441 Pa., at 442, 273 A.2d at 904; Rybas v. Wapner, 311 Pa.Super., at 54, 457 A.2d at 110. As one leading authority has stated,

Defamation is ... that which tends to injure “reputation” in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him. It necessarily, however, involves the idea of disgrace ...

Prosser, Law of Torts, 4th Ed., Sec. 111, p. 739, quoted with approval in Vitteck v. Washington Broadcasting Co., 256 Pa.Super. 427, 432, 389 A.2d 1197, 1200 (1978).

In determining whether a newspaper article, for example, is defamatory, the trial court must decide whether it can reasonably be construed to have the libelous meaning ascribed to it by the complaining party. Corabi v. Curtis Publishing Co., supra; Rutt v. Bethlehems’ Globe Publishing Co., supra. As such, the work must be construed in its entirety. Rutt v. Bethlehems’ Globe Publishing Co., supra; Brophy v. Philadelphia Newspapers, Inc., 281 Pa. Super. 588, 422 A.2d 625 (1980).

The test is the effect the [entire] article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same significance that other people are likely to attribute to them.

Corabi v. Curtis Publishing Co., 441 Pa., at 447, 273 A.2d at 907, quoting Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936).

The issue in this case is whether the Morning Call article is capable of a defamatory meaning. In assessing this claim, we first observe that

[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom ... [Preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty that, upon the facts averred, the law will not permit recovery by the Plaintiff.

Bickell v. Stein, 291 Pa.Super. 145, 149, 435 A.2d 610, 612 (1981), quoting Donnelly v. DeBourke, 280 Pa.Super. 486, 421 A.2d 826 (1980), overruled on other grounds, Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) (Citations omitted.)

At this procedural stage, any doubt must be resolved against the demurrer. Vitteck v. Washington Broadcasting Co., supra. Furthermore, the fact that the alleged defamatory statements are susceptible to an innocuous interpretation does not necessarily defeat the cause of action. Corabi v. Curtis Publishing Company, supra; Brophy v. Philadelphia Newspapers Inc., supra. When ruling on preliminary objections in the nature of a demurrer, the question is whether a nondefamatory interpretation is the only reasonable one. “... [UJnless the court is certain the communication is incapable of bearing a defamatory meaning a demurrer challenging the sufficiency of the complaint should be overruled.” Vitteck v. Washington Broadcasting Co., Inc., 256 Pa.Super. at 433, 389 A.2d at 1201. Applying these legal principles to the facts of this case, we find the order dismissing appellant's complaint to be in error.

The article describes appellant’s animal auction and the continuing dissension between him and the Lehigh County Humane Society. (Schramm is shelter manager of the Society.) It includes an account of a 1977 raid on the auction by Society members, following which appellant was: ... charged with 150 counts of animal cruelty.

“We saw animals eating their own vomit. Most couldn’t stand up in their cages,” said Cindy O’Keefe, one of the society members on the 1977 raid. “There was blood in their stools and discharge running from their eyes and noses.”

It also detailed a purchase of a cat made by Schramm as follows:

“I knew the cat was severely sick,” said Schramm, “and I didn’t want it to go somewhere where it would continue to suffer.”
By the time the cat arrived in Allentown, said Schramm, “She was literally gasping for air, thrashing, crying and dying. I had no choice but to put her to sleep.”
According to the preliminary autopsy report, the cat died of feline infectious peritonitis (FIP), a highly contagious, always fatal disease, according to Dr. Eugene Witiak, who performed the autopsy. “When we suspect FIP, we don’t put the cats in the regular hospital,” said Dr. Witiak. “We isolate them.”

The final portion of the article links appellant to at least two dealers who sell animals to research labs and describes the following tests as examples of those for which the animals are used.

The most common test for toxicity is the Lethal Dose 50 in which 50 percent of the animals in a test group have to die in order to get a toxicity rating to satisfy federal requirements. Lipstick, for example, is fed to animals until half of them die, usually of stomach blockages or uremia, not of toxicity, said Marc Paulhus, an investigator with the U.S. humane society. Dr. Fox calls this test “psuedo-science.”
The $14-billion-a-year cosmetics industry uses an estimated half-million rabbits a year for the Draize test in which a substance like hairspray is dripped into the eyeballs of live rabbits until they ulcerate or the rabbits go blind. The Draize test is used to test the eye irritancy of substances like soap, perfume and other common products.

Appellant concludes that the entire article, and especially these excerpts, accuse him of cruelty to animals, maintaining unhealthy conditions at his auction and selling the majority of the animals at the auction for testing and laboratory use similar to that described above. We agree that such a conclusion is not such “an unfair and forced construction on the interpretation of the publication”, Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 467, 442 A.2d 213, 217 (1981), as to warrant sustaining appellees’ preliminary objections.

Consider, for example, the publication of Schramm’s statements concerning her purchase of the sick cat. This allegation was not presented as an isolated incident but was followed by a comment that one anonymous buyer “buys five to six dogs and cats a week at Gilbertsville, treats the sick ones and tries to find homes for them” (emphasis added) and an allegation from another buyer that ten per cent of the animals he purchases at Gilbertsville die. Certainly the reader could conclude from this that appellant sells seriously ill animals. That the article includes a statement that USDA reports certify no violations in appellant’s operation does not necessarily dispel that conclusion, because the article further notes that USDA inspections did not take place on the day of the auction and that USDA inspectors are not veterinarians and thus will not give an opinion about an animal’s health. Cf., Morgan v. Bulletin Co., 369 Pa. 349, 85 A.2d 869 (1952) (inclusion of plaintiff’s denial of bribery accusations does not provide “an easy escape from liability.”)

Similarly, in regard to the portions of the article concerning the use of animals in research, a finding that the article is not defamatory because it includes appellant’s statement that the majority of his buyers are not animal dealers, see, Morgan v. Bulletin Co., supra, and because it does not indicate that any testing or experimenting with animals was done at appellant’s farm is an insufficient basis on which to dismiss appellant’s complaint. The article does indeed link appellant to one animal dealer which was convicted of receiving stolen property, failure to keep records and failure to provide animals with shelter from the cold. This same dealer is further described as having sold dogs to a surgical supply firm which is alleged to have used and destroyed at least 900 dogs in a one-year period. Certainly, a reasonable reader could conclude that appellant is a link in the chain of supply of animals used in experiments at least similar, if not identical, to the ones described.

Finally, that the account of the 1977 raid was merely “a factual account of alleged wrongdoings ... more than five years ago” (Opinion at 7) is insufficient to remove liability. While such an account may be defended on the basis of qualified privilege, a jury could also find that the privilege was abused and the description would not therefore be shielded from liability. See, Bausewine v. Norristown Herald, 351 Pa. 634, 41 A.2d 736 (1945).

For these reasons, we agree with appellant that it was error for the court to dismiss his defamation complaint.

Appellant’s complaint also included claims of invasion of privacy-false light and wrongful interference with business relationships. As to the latter, appellees’ preliminary objections included a claim of privilege and an allegation that appellant’s complaint failed to set forth any facts in support of the allegation that the Society and Schramm induced Faye to write the article, or to indicate what part or parts of the article portrayed appellant in an unfavorable light. Thus, three potential bases existed for dismissal of this count.

The order from which this appeal has been taken, while dismissing appellant’s complaint in its entirety, did not, however, address any of the three objections raised with respect to count one. Rather, Judge Lowe discussed only the nondefamatory nature of the article. No mention was made of the claim of a privilege, or the insufficiency of count one’s factual averments. Thus, it appears that in dismissing count one, Judge Lowe did not embrace any of the arguments raised by preliminary objection. As such, dismissal of the complaint in its entirety was procedurally unauthorized. We therefore must vacate the trial court’s order insofar as it dismissed this count of the complaint and remand for further proceedings.

Since dismissal of the invasion of privacy-false light count was based solely on the issue of defamatory meaning, we must similarly vacate the trial court’s dismissal of that count.

Order vacated and case remanded for further proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . This article was written by appellee Faye.

      . Appellees’ other preliminary objections included motions for a more specific pleading, a motion to strike and an assertion of privilege. The complaint was dismissed solely on the issue of defamatory meaning and only that issue was treated by the court. Therefore, that is the only issue before us.

      . Appellant incorporated the entire article into his complaint and pointed out specific examples of what he considered to be defamatory statements. He argues that the article, as a whole, defames him. We believe appellant’s complaint satisfies the requirement that the actionable words be stated with particularity. Itri v. Lewis, 281 Pa.Super. 521, 422 A.2d 591 (1980). In determining whether the article is capable of a defamatory meaning, we therefore consider the entire contents of the article, including the headline. Dunlap v. Philadelphia Newspapers, Inc., supra. Our use of particular examples is not intended to imply that only those examples may be defamatory. Rather, we have considered the effect the entire article is fairly calculated to produce. Corabi v. Curtis Publishing Co., supra.

      . The article appears to have been intended as one "linking the Gilbertsville animal auction to research labs" because the article notes that one animal dealer refused to be interviewed for that very reason.

      . Appellant had initially pleaded the additional ground that the article disclosed his gross earnings for 1977 and 1980. In light of the United States Supreme Court’s decision in Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), appellant has abandoned this claim.


author: WATKINS, Judge:

text:
    482 A.2d 271
    COMMONWEALTH of Pennsylvania v. Ronald Gilbert PARNELL, Nathan July Ragin and Gregory Barry Waldon, Appellants.
    Superior Court of Pennsylvania.
    Argued April 21, 1981.
    Filed Sept. 21, 1984.
    Reargument Denied Oct. 16, 1984.

      Stanley M. Shingles, Philadelphia, for appellants.
    Ronald T. Williamson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   WATKINS, Judge:

On September 24, 1976, appellants were sentenced to probation and fined following their convictions for attempted theft and criminal conspiracy. In their post-trial motions, they assigned more than thirty points of error. These motions were denied by the lower court and an appeal followed. Several issues were presented on appeal, but this Court addressed itself only to the initial issue of whether the Commonwealth exhibited the due diligence required to warrant several extension of time for trial pursuant to Pa.R.Cr.P. 1100. We found that the appellants were not afforded a full and complete hearing on the Rule 1100 issue and remanded the case, for such a hearing. Commonwealth v. Waldon, 259 Pa.Superior Ct. 129, 393 A.2d 751 (1978).

On May 27, 1980 following the hearing directed by our order, the court below found that the Commonwealth complied with Rule 1100 and exercised due diligence and the judgment of sentence was reaffirmed.

An appeal was again taken and this Court affirmed on the opinion of the lower court. Commonwealth v. Waldon, (1982). Appellants then petitioned for reargument en banc on the basis of our Court’s failure to address the numerous issues presented in addition to those concerning Rule 1100 when we affirmed on the lower court’s opinion. The lower court opinion dealt only with the results of the hearing with respect to the Rule 1100 issue. Reconsideration was granted and we now address the additional issues presented.

At the outset we reaffirm our position that the lower court correctly decided that the Commonwealth exercised due diligence in petitioning for an extension of time within which to commence trial under Rule 1100. The trial court cited Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976) in support of the grant of the extension due to judicial backlog. That case is certainly still valid. Even more recently, the Supreme Court has reaffirmed the proposition that where a backlogged docket prevents a case from going to trial within 180 days an extension of several weeks is appropriate. See Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983). The facts involved here are similar and we are not persuaded that the lower court erred in its evaluation of the evidence presented at the hearing on the Rule 1100 extension.

Similarly, we find appellants’ claim of prosecutorial misconduct in conjunction with the application for extension without merit. Appellants cite Commonwealth v. Long, 258 Pa.Superior Ct. 251, 392 A.2d 779 (1978) in support of their contention that the petition for extension should have been dismissed because of prosecutorial misconduct. Because the Long case involved a grant of an extension without a hearing, it is not applicable to the facts involved here. Appellants in the instant case had a hearing after remand and ample opportunity during that hearing to expose so-called prosecutorial misconduct. The lower court was not persuaded that anything of the sort occurred and after reviewing the record we agree.

Appellants also contend that a mistrial was warranted by the admission of testimony that one of the defendants was a former police officer on a psychiatric leave. During the trial defense counsel asked one of the arresting officers whether he had any further information about defendant’s having a gun. The witness responded that he had learned defendant was a former police officer currently on psychiatric leave at the time of the incident. This answer was responsive because it revealed the information the arresting officer had at his disposal concerning the reasons why defendant might have a gun and where it had come from and the validity or legitimacy of his carrying it in view of the fact that he was on leave. The court’s decision regarding the declaration of a mistrial is discretionary and will not be reversed absent flagrant abuse. Commonwealth v. Marker, 231 Pa.Superior Ct. 471, 331 A.2d 883 (1974). In order to be prejudicial the remark must have deprived the defendant of a fair and impartial trial. Marker, supra. We agree with the lower court’s opinion that the remark did not reflect upon defendant’s guilt or innocence of the crimes charged and did not deprive him of a fair trial.

We have carefully reviewed the record including testimony, the lower court’s opinion and the appellants’ briefs in this case and we find that appellants additional numerous arguments alleging abuse of discretion by the lower court are totally without merit. There are simply no indications on the record that these appellants were denied a fair and impartial trial by any of the court’s rulings on permissible inquiries by counsel or admissibility of certain evidence or by the court’s charge. In spite of our initial failure to consider several of the issues presented we do not feel compelled to elaborate with respect to every point of error alleged. The record convinces us that the appellants’ claims are ludicrous at best. The record further indicates that every effort was made to preserve the integrity of the judicial system in the best interests of these appellants.

Judgment of sentence affirmed.

MONTEMURO, J., concurs in the result.


author: HESTER, Judge:

text:
    482 A.2d 557
    BROWN BOVERI BUILDING AUTOMATION INC., A Corporation, and BBC Brown Boveri Company, Inc., A Corporation v. MIDLAND-ROSS CORPORATION, A Corporation, Urban National Corporation, A Corporation, Romesh T. Wadhwani, An Individual, and Price Waterhouse & Co., A Partnership v. BBC BROWN, BOVERI & COMPANY, LIMITED, A Corporation, and Brown Boveri Compu-Guard Corporation, A Corporation. Appeal of Romesh T. WADHWANI.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed Aug. 24, 1984.
    Reargument Denied Nov. 5, 1984.

      Kevin P. Lucas, Pittsburgh, for appellant.
    Patricia Dodge, Pittsburgh, for appellees.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   HESTER, Judge:

On April 8, 1980, plaintiff below, Brown Boveri Building Automation, Inc., (hereinafter BBBA), purchased all of the stock of appellee, Brown Boveri Compu-guard Corporation. Appellant, Romesh T. Wadhwani, was then President of appellee corporation and a member of its Board of Directors.

The acquisition of appellee by BBBA was accomplished pursuant to a written Acquisition Agreement, which was executed on April 8, 1980. On the same date, appellee agreed to retain appellant for a five-year period ending March 31, 1985. Appellant was, in fact, employed until June 19, 1981, at which time his employment was terminated allegedly for reasons other than “cause or disability.”

The original complaint in this action contained five causes of action instituted by BBBA against appellant. The first two counts were in assumpsit for breach of written warranties and the remaining three counts were in trespass for alleged misrepresentation and fraud.

Appellant then instituted a third party complaint against appellee. The first count alleged appellee was the sole or contributing cause of the losses alleged in BBBA’s original complaint. The second count alleged that the termination of his position on June 19, 1981 was in breach of his employment contract in that no severance pay was given and that he was not reimbursed for expenses.

Appellee then filed preliminary objections in the nature of a motion to strike the second count on the grounds that the termination of appellant’s employment was not sufficiently related to the transactions and occurrences upon which the causes of action in the original complaint were based. Thus, there should be no joinder.

The trial court, upon consideration of the briefs of the parties and oral argument, sustained the preliminary objections of appellee and struck the second count of appellant’s claims. It is from this order that appellant perfected his appeal.

Appellant contends that his second count, joining appellee, raised issues identical and inextricably related to the matters raised in BBBA’s original complaint. Thus, such count should not have been struck under the liberal joinder standards of Pa.R.C.P. 2252(a) on the grounds that the claim did not constitute an indemnity type claim. We disagree.

First, the lower court did not hold that joinder was limited to indemnity claims, as appellant asserts. We accordingly remove that from our consideration.

The crux of appellant’s claim is that the employment contract was entered into in conjunction with the negotiation and execution of the acquisition agreement of the same date. Appellant argues that we have permitted the joinder of a third party defendant in situations where the joined claims involved facts and issues which were different from those involved in the original complaint but nevertheless arose out of the same transaction. Appellant cites as his authority Eads v. Smith, 276 Pa.Super. 129, 419 A.2d 129 (1980) (Dissenting Opinion by Hester, J.), and Stokes v. Loyal Order of Moose Lodge # 696, 302 Pa.Super. 256, 448 A.2d 624 (1982).

In Stokes, the plaintiff was injured when a folding chair on which she was sitting collapsed. Plaintiff filed a complaint in trespass against defendant, who then filed a third party complaint to join its insurance carrier. The basis for the third party action was that allegedly the insurance carrier breached its agreement to defend and indemnify.

The majority of this Court held, based on our rationale in Eads and Szemanski v. Vulcan Materials Co., 272 Pa.Super. 240, 415 A.2d 92 (1979), that the insurance carrier could be joined because they would not have been obligated to defend or indemnify unless the plaintiff had sued defendant for injuries. Thus, even though the factual and legal questions were different, they arose out of the same transaction.

Appellant relies on these cases for authority and correctly interprets them, however, they are no longer the law. The Stokes case was subsequently appealed to our Supreme Court and was reversed. See Stokes v. Loyal Order of Moose Lodge # 696, 502 Pa. 460, 466 A.2d 1341 (1983). Our Supreme Court in Stokes held that complaints should not be joined in one action unless the third party complaint and the original complaint “involve a common factual background or common factual or legal questions.” Id., 502 Pa. at 467, 466 A.2d at 1345.

This being the case, there is little merit to appellant’s claim. The original complaint instituted by BBBA against appellant stemmed from his alleged breach of warranties and misrepresentations under the acquisition agreement. Appellant’s third party complaint, however, arose out of an employment contract with appellee. The factual backgrounds are entirely dissimilar. Also, breach of warranty, fraud, and misrepresentations involve different legal questions than whether appellant was entitled to severance pay and expenses under his employment contract.

Based on the foregoing, we conclude that the complaint did not arise out of the same transaction in that the factual and legal questions were not the same. Therefore, joinder was not permissible under Pa.R.C.P. 2252(a). Accordingly, we affirm.

Order affirmed.


author: BROSKY, Judge:

text:
    482 A.2d 559
    COMMONWEALTH of Pennsylvania v. Michael SAYKO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1983.
    Filed Sept. 21, 1984.
    Petition for Allowance of Appeal Granted Feb. 20, 1985.

      Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

This is an appeal from the order denying appellant’s motion to vacate sentence. Appellant contends that the sentence he received on the charge of corruption of minors was illegal because that offense had merged with the crimes of indecent assault and indecent exposure for which he was given consecutive sentences. We agree with appellant in part and, for the reasons that follow herein, vacate the sentence for indecent exposure and affirm the sentences for indecent assault and for corruption of minors, but with credit given for the time served on the indecent exposure conviction.

On May 31, 1978, appellant pled guilty to the charges of indecent exposure, indecent assault, and corruption of minors. These charges arose out of an incident which occurred on January 10, 1978. On that date, appellant entered a home in order to provide exterminating services for the residents. There, he induced a four year old girl to sit on his lap, at which time he placed his hand under her shirt and touched her chest. He then opened his trousers, exposed his genitals, and had the girl touch his genitals until he ejaculated on her hands.

On July 7, 1978, appellant was sentenced to consecutive terms of one to two years for indecent assault, one to two years for indecent exposure, and five years probation for corruption of minors. On July 12, 1978, a petition to withdraw his guilty plea was filed by appellant on the basis that the offenses of indecent exposure and indecent assault should have merged for purposes of sentencing. This petition was denied on July 25, 1978 and an appeal from that denial was filed on August 17, 1978 with the Superior Court which affirmed the judgment of sentence. 274 Pa.Super. 628, 423 A.2d 1303 (1979).

On March 5, 1982, appellant filed a motion to vacate sentence. The motion was denied on April 20, 1982 and this appeal timely followed.

Appellant argues that the crime of corruption of minors merged with the offenses of indecent assault and indecent exposure for sentencing purposes. For the reasons that follow herein, we agree, in part, with appellant’s argument.

One test for determining whether one offense merges into another for sentencing purposes is whether one crime necessarily involves the other, i.e., the essential elements of one must also be the essential elements of the other. Commonwealth v. Williams, 290 Pa.Super. 209, 434 A.2d 717 (1981).

Instantly, appellant was sentenced for indecent assault, indecent exposure, and corruption of minors. Although the information charging corruption is not clear on the point, the Commonwealth concedes that appellant’s actions constituting either the indecent exposure or the indecent assault were the corrupting act forming the basis of the corruption of minors charge. Thus, once the Commonwealth had proven the crime of corruption of minors, no additional facts were necessary to prove either the offense of indecent exposure or the offense of indecent assault. Therefore, either the indecent assault or the indecent exposure offense merged with the crime of corruption of minors. See Commonwealth v. Watson, 311 Pa.Super. 89, 457 A.2d 127 (1983) (indecent assault conviction merged with conviction for corruption of minors where count for corruption of minors based on essentially the same act as indecent assault count); Cf. Commonwealth v. Buser, 277 Pa.Super. 451, 419 A.2d 1233 (1980).

We emphasize, however, that only one of the two crimes of indecent assault and indecent exposure must merge with the offense of corruption of minors. This conclusion stems from this Court’s prior affirmance of appellant’s judgment of sentence which he had challenged on the ground that the crimes of indecent assault and indecent exposure merged for sentencing purposes. Although the judgment of sentence was affirmed in a per curiam order, the affirmance necessarily implies that the Court determined that the crimes did not merge for sentencing purposes, but were based on two distinct acts. Since these offenses did not themselves merge, we cannot find that both offenses merged with the crime of corruption of minors. Cf. Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982) (where two burglary offenses did not merge, only one merged with a felony murder charge as the underlying felony). In other words, since only one of the crimes of indecent assault and indecent exposure was necessary to establish the corrupting act upon which to base the corruption of minors count, only one merged with that count.

It also makes no difference, instantly, which of the offenses is chosen as the one which merges with the corruption of minors charge since both indecent assault and indecent exposure are second degree misdemeanors. Therefore, choosing one as the offense which merges with the corruption of minors charge and the other as a separate offense does not create a problem.

Next, we must determine for which of the merged crimes appellant should have been sentenced. When crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the one to which the legislature has attached the greatest penalty. Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). Instantly, both indecent assault and indecent exposure are misdemeanors of the second degree, carrying a maximum sentence of two years, while corruption of minors is a misdemeanor of the first degree, carrying a maximum sentence of five years. Thus, appellant could properly have been sentenced for either indecent assault or indecent exposure, and for corruption of minors.

However, as noted above, appellant was sentenced to consecutive terms of one to two years for indecent assault, one to two years for indecent exposure, and five years probation for corruption of minors. “In this situation, where we cannot determine whether the declared invalidity of a conviction on one count may have affected the lower court’s sentencing on the remaining counts, we must remand to give the lower court an opportunity to reconsider sentencing on all counts.” Commonwealth v. Miranda, 296 Pa.Super. 441, 462, 442 A.2d 1133, 1144 (1982). On remand, the court may sentence appellant for either indecent assault or indecent exposure, and for corruption of minors. Appellant is, of course, to be given credit for the time already served for all of these crimes.

Judgment of sentence vacated and case remanded for resentencing in accordance with this opinion.

      . 18 Pa.C.S.A. § 3125 (repealed); see 18 Pa.C.S.A. § 6301.

      . 18 Pa.C.S.A. § 3126.

      . 18 Pa.C.S.A. § 3127.

      . The appeal procedure followed by appellant in his original appeal was only superficially correct. Pa.R.A.P. 343 provides that, when a timely motion has been filed pursuant to Pa.R.Crim.P. 321, appeal from the judgment on the plea is to be taken from the final order disposing of the Rule 321 motion.
      However, although the petition was captioned as petition to withdraw guilty plea, its substance was solely that of a motion to modify sentence. Unlike the filing of a motion challenging the validity of a guilty plea, the filing of a motion to modify sentence does not affect the running of the thirty day period for filing a timely notice of appeal. Pa.R.Crim.P. 1410 (comment). Since defendants should not be permitted to extend the time for appeal simply by altering the form of their post-sentence motions, this Court could have quashed appellant’s original appeal as having been untimely filed.

      . We note that no such type of motion is provided for in the Rules of Criminal Procedure. A challenge to a sentence after the ten days allowed under Pa.R.Crim.P. 1410 for filing a motion to modify sentence is more properly brought under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. However, considering the fact that the question of legality of a sentence is never waived, Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982), we believe it is in the interests of justice and judicial economy to look past the form of appellant’s motion and treat the case as one substantively brought under the PCHA.

      . Although this test is probably the one most often applied, the concept of merger is actually somewhat broader:
      In merger of sentences cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act. Commonwealth v. Crocker, 280 Pa.Super. 470, 475, 421 A.2d 818,
      820-821 (1980) (citations omitted).

      . 18 Pa.C.S.A. § 3125 provided in relevant part as follows:
      Corruption of minors
      (a) Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in violating his or her parole or any order of court, is guilty of a misdemeanor of the first degree.

      . We note that in the case of Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982), the Pennsylvania Supreme Court held that the imposition of separate though concurrent sentences for the crimes of rape and corruption of a minor did not violate the double jeopardy clause of the United States Constitution under the test articulated in Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The test stated in Blockburger was that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each requires proof of a fact which the other does not ...” Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309.
      Although the above analysis certainly casts some doubt on whether this test has truly been satisfied, we are bound by the decision of the Supreme Court on this issue. See Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978). However, the Supreme Court in Norris did not consider nor decide the question of merger. Therefore, we believe that this court is free to decide this issue under the doctrine of merger. See generally, Commonwealth v. Sparrow, 471 Pa. 490, 503 n. 8, 370 A.2d 712, 719-20 n. 8, (1977).

      . This analysis implies, of course, that appellant could have been charged with another count of corruption of minors since there were two distinct corrupting acts. However, the Commonwealth chose not to do so.

      . We are aware that a problem could exist in other cases if unequal offenses were involved. However, this question is not before us at this time and should be left for future resolution. See Maddox, supra.

      . We note that the court in Watson, supra, stated that corruption of minors was a misdemeanor of the second degree. While such was the case prior to 1973, 18 Pa.C.S.A. § 3125(a) was amended on November 28, 1973, to make the crime a misdemeanor of the first degree.

      . The Commonwealth contends that the general principle that our decision implies is that the charge of corruption of minors will always merge with the underlying corrupting act, and concludes that this fact means that there is no need for the offense of corruption of minors to exist. While we agree that the offense of corruption of minors will always mérge with the underlying act, we do not agree with the conclusion the Commonwealth draws from the facts. As was the case instantly, if the underlying act constitutes a less serious crime than the offense of corruption of minors, the corruption of minors charge is the crime for which the defendant may be sentenced. Moreover, we do not believe that the underlying act must itself constitute a criminal offense. See Commonwealth v. Burak, 232 Pa.Super. 499, 335 A.2d 820 (1975). Therefore, we conclude that our decision in no way judicially nullifies the legislature’s creation of the offense of corruption of minors.