text:
    463 A.2d 427
    VILLAGE GENTRY, INC., t/a and known as Regalia Men’s Boutique, v. WEST VILLAGE and the Fox Company. Appeal of Allen L. FEINGOLD.
    Superior Court of Pennsylvania.
    Submitted June 4, 1982.
    Filed June 24, 1983.
    Reargument Denied Aug. 22, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      Allen L. Feingold, Philadelphia, appellant, in propria persona.
    Joseph Feldman, Philadelphia, for Village Gentry, appellee.
    John Francis Smith, III, Philadelphia, for West Village, appellee.
    Richard B. Hardt, Philadelphia, for Fox, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   PER CURIAM:

Appellant Allen L. Feingold has appealed from the order of the trial court entered October 15, 1981. That order held appellant in contempt for his failure to withdraw his appearance for Village Gentry, Inc. after he was requested to do so by his client and for his failure to turn over his file in the instant case to Village Gentry, Inc.’s new counsel, Joseph G. Feldman. The order also directed appellant to pay Feldman $350.00 in counsel fees for legal services rendered pursuant to Feldman’s motion to quash an earlier appeal to this court by appellant from an order dated March 13, 1981.

Appellant’s arguments can be capsulized as follows: 1) the lower court proceeding was conducted without a hearing and following but one day’s notice to appellant that Attorney Feldman intended to present a Motion for Sanctions; 2) the order of the lower court violated appellant’s due process rights in that it compelled the payment of $350.00 to Feldman; and 3) the order destroyed appellant’s right to maintain a retaining lien on the files. In light of our disposition, we address appellant’s first argument only.

The order of March 13, 1981 required appellant to withdraw his appearance and deliver the file to Feldman, upon payment of record costs. Appellant did not comply with this order, but instead filed a timely notice of appeal to this court. Feldman filed a motion to quash that appeal some four months later, upon appellant’s failure to pursue the appeal. This court quashed that appeal on August 25, 1981.

As the appeal from the March, 13, 1981, order has been quashed, that order is no longer at issue. The quashing of the appeal from that order has rendered it, in effect, final. Therefore, the underlying issue concerning the propriety of the trial court’s determination to require appellant to withdraw his appearance and turn over the file is no longer reviewable. If the order of March 13, 1981, is not reviewable, we need only determine whether appellant complied with that order, and if not, whether the contempt order of October 15, 1981, was procedurally sound.

There is no dispute concerning appellant’s noncompliance with the March 13, 1981, order. The only issue on this appeal, therefore, is whether the trial court complied with the procedural safeguards regarding contempt proceedings in this case.

The contempt order of October 15, 1981, was civil in nature, its purpose being to coerce appellant into complying with the March 13, 1981, court order. See In re B, 482 Pa. 471, 394 A.2d 419 (1978); Ewing v. Oliver Realty, Inc., 305 Pa.Super. 486, 451 A.2d 751 (1982). Although appellant’s failure to obey the March 13, 1981, court order placed him technically in contempt of court, a five step process is required to hold a person in civil contempt. Ewing v. Oliver Realty, Inc., supra; Crislip v. Harshman, 243 Pa.Super. 349, 365 A.2d 1260 (1976). The five steps involve: (1) a rule to show cause why an attachment should not issue, (2) an answer and hearing, (3) a rule absolute, (4) a hearing on the contempt citation, and (5) an adjudication of contempt.

The record in the instant case indicates that Feldman filed a motion for sanctions on October 15, 1981. The order was granted the same day, apparently without a hearing. Appellant was informed of the filing of the sanction motion by letter sent October 14, 1981, by Feldman. Appellant did not appear before the court on October 15, 1981. The motion for sanctions may have sufficed as the equivalent of a rule to show cause, as required by step (1), however, as no time for an answer or hearing was scheduled, and because steps (2) though (5) were not complied with, the proper procedures have not been followed. Therefore, the order of October 15, 1981, should be vacated and the case remanded for further proceedings to be held in compliance with a proper civil contempt action.

Finally, concerning that provision of the October 15, 1981, order requiring appellant to pay $350.00 for attorneys’ fees to Feldman, there is insufficient support for such an award on the record, as the sanction motion itself requests no such award and no other proof to support such a sum appears of record. Therefore, any further proceedings seeking payment of such sums should be based on pleadings filed and evidence presented at the appropriate stage of any said further proceedings that may occur in this matter.

Reversed and remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . It appears that the October 15, 1981, order was prepared by Feldman and attached to his sanctions motion. However, no mention of attorneys’ fees appears in the accompanying motion.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    463 A.2d 429
    David E. KRUPA, A Minor By His Parents and Natural Guardians James R. KRUPA and Mary Jane Krupa, and James R. Krupa and Mary Jane Krupa, in Their Own Right, and Mary Jane Krupa and James R. Krupa, Her Husband, Appellants, v. Lawrence O. WILLIAMS and Shirley V. Williams. (Four cases) Appeal of Lawrence O. Williams
    Superior Court of Pennsylvania.
    Argued April 26, 1982.
    Filed July 1, 1983.

      Dennis St. J. Mulvihill, Pittsburgh, for appellants (at Nos. 409, 552 and 725) and for appellees (at No. 701).
    Lee C. McCandless, Butler, for appellant (at No. 701) and for appellees (at Nos. 409, 552 and 725).
    Before BECK, MONTEMURO and POPOVICH, JJ.
   BECK, Judge:

This case arises from a serious car accident which occurred on December 6, 1975. At about 4:30 a.m. James Krupa and his teenage son David were driving north on Route 8 toward Butler, Pennsylvania for a day of hunting. Richard Hoffman, not previously known to the Krupas, was driving north also, with passenger Charles Almond. James Krupa drove into the left northbound lane, overtaking Hoffman in an effort to pass him on the four lane undivided highway. At the same time, Lawrence Williams was driving southbound on his way home from an evening with friends. In the accident that then occurred the Krupa and Hoffman cars moved to the right, Krupa’s car sideswiped Hoffman’s car, Krupa’s car’s right side scraping Hoffman’s car’s left side. An instant later the northbound Krupa’s car and the southbound Williams’ car collided head-on in the northbound lane. Hoffman and Almond were uninjured and remained on the scene after the accident. They observed both the accident and its consequences.

The Krupas and Williams, all badly hurt, were removed from their cars by a local volunteer fire department rescue team and taken to hospitals for treatment. State police officers took photographs and measurements of the scene for a detailed report. The injuries of the victims looked so bad it “looked like a fatality.” (103a).

James Krupa suffered some facial cuts and missed about 6 weeks of work. David Krupa suffered a severe blow to his head resulting in the complete loss of the bone of his forehead and damage to the frontal lobes of his brain. At the time of trial he had undergone four operations to repair this condition.

In the litigation that ensued, the Krupas claimed (1) damages for the injuries to David, (2) medical expenses for David, (3) damages for injuries to James, (4) loss of consortium by James’ wife Mary Jane, and (5) damages for severe emotional shock to James at witnessing the injury to David.

At trial, the court declared a compulsory nonsuit on claims 2, 3, 4, and 5. The court also directed a verdict of liability against Williams for Count 1 and submitted the question of the amount of damages to the jury. The jury returned a verdict for David Krupa in the amount of $800,-000.00.

Both the Krupas and Lawrence Williams have appealed orders of the trial court. Three separate appeals are before this court and are disposed of in this opinion. They are:

701 Pittsburgh 1980: Williams appeals the directed verdict on the evidence of liability and appeals the $800,000.00 verdict as excessive.

725 Pittsburgh 1980: James and Mary Jane Krupa appeal the order that required them to proceed to trial on May 12, 1980 with an attorney other than their personal attorney, Dennis Mulvihill, who was not available. The initial trial attorney and Mulvihill were from the same firm but he was not as familiar with the case as Mulvihill.

409/552 Pittsburgh 1980: James and Mary Krupa appeal from the order permitting Nationwide Insurance, Lawrence Williams’ insurer, to pay policy limits on David Krupa’s claim into court and to be released from further liability on that claim only.

701

Appeal No. 701 raises the questions whether it was proper for the court to direct a verdict on the issue of liability in favor of plaintiff /passenger David Krupa instead of submitting the issue of liability to the jury, and whether the size of the money verdict awarded by the jury was excessive.

The trial judge properly directed a verdict in favor of David Krupa. A judge may direct a verdict for a plaintiff only if there are no facts upon which a jury could properly find for the defendant. Highland Tank and Mfg. Co. v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966). If there is a conflict of evidence, and the conflict provides a basis upon which a jury could possibly render a verdict for the party against whom the directed verdict is sought, the case must go to the jury. Cox v. Equitable Gas Co., 227 Pa.Super. 153, 324 A.2d 516 (1974). However, the conflict must be real. If there is no more than a scintilla of evidence on the side ruled against, and a jury could not base its verdict upon that evidence, a directed verdict may still be proper. Cromley v. Pa. R. Co., 211 Pa. 429, 60 A. 1007 (1905).

There was no real conflict of evidence as to how this accident occurred. The facts established by the evidence were as follows:

Richard Hoffman testified that when he saw the cars after the accident the Krupa and Williams cars were in the right northbound lane of the four lane undivided highway. (72a.)

Volunteer fireman, Richard May, testified that the accident occurred on a straight stretch at the end of a curve (83a), that he heard Williams say something like “what happened?... I must have dozed” (85a-86a), that after the accident the cars were in the northbound lane and the southbound lane was open for the passage of traffic (90a).

John Hazlett, a State Police officer at the time of the accident, testified that after the accident the cars were at rest in the northbound lane (99a), that debris from an accident always drops straight down at the point of impact (99a), that all of the debris from this accident was in the northbound lanes (100a), and that skid marks of the Krupa vehicle were visible on the pavement from the left northbound lane to the right northbound lane (100a) and that Richard Hoffman was interviewed at the scene and stated that the Williams car came toward his and the Krupa vehicle from across the highway (102a).

Almond, the passenger in Hoffman’s car, testified that the Williams and Krupa cars were in the right northbound lane, and that Hoffman’s car was on the berm after the accident. (116a).

James Krupa testified that he was in the left northbound lane when he saw headlights of a car coming toward him (165a) and that he was in the same lane when the impact occurred (164a).

Williams testified that he was on the right lane of the southbound side of the road (288a) and that he then was subject to a “blinding” “glare” (285a) of uncertain origin or location (288a). The impact must have occurred after that point, but he is not sure how (286a). Trooper Hazlett had conceded on cross examination that as the Krupa vehicle moved into the passing lane to pass the Hoffman car, Krupa’s headlights would have an effect on southbound traffic (107 a).

The record reveals that the first impact, between the Krupa and Hoffman cars was due to the effort of Krupa to avoid an imminent collision with the oncoming Williams car. The inference from the testimony concerning the skid marks is that Krupa braked sharply and steered to the right. The inference from the testimony that the debris was found entirely on the northbound lanes is that the impact between the Krupa and Williams cars occurred in the northbound lanes. The conclusion is inescapable that Williams was on the wrong side of the road, placing him in violation of the rules of the road, 75 Pa.C.S.A. § 3301. In “wrong side of the road” fact situations, “unless the defendant can explain his presence in the wrong lane, negligence can be inferred.” Fair v. Snowball Express, Inc., 226 Pa.Super. 295, 310 A.2d 386 (1973).

Williams did not present any evidence to controvert the conclusion that he was on the wrong side of the road. He testified that he recalled being in his own right lane, southbound. A glare blinded him, and then an impact occurred. He did not know where he was at the moment of impact. Evidently, the glare he saw was Krupa’s headlights. Although a driver who is where he is supposed to be and is blinded by a glare might not be negligent in a collision, this rule can hardly apply to a situation where the glare results from the driver’s negligence. Cf. Maranca v. Philadelphia, 394 Pa. 531, 147 A.2d 413 (1959); Farley v. Ventresco, 307 Pa. 441, 161 A. 534 (1932).

Williams’ testimony on his own behalf is entitled to be regarded favorably in considering a directed verdict. Stephens v. Carrara, 265 Pa.Super. 102, 401 A.2d 821 (1979). Nevertheless, he did not present any facts on which a jury could have found in his favor.

Appellant Williams correctly points out that where plaintiff’s proof rests entirely on oral evidence the case must go to the jury, even if defendant does nothing to rebut it, because the credibility of such evidence is for the jury to determine. Dorn v. Leibowitz, 387 Pa. 335, 127 A.2d 734 (1956). This “oral evidence” rule has no application to this case, however. Plaintiffs’ proof established physical facts, not contradicted, from which defendant’s presence on the wrong side of the road was the only possible conclusion: the skid marks from the Krupa car, the location of debris from the damaged cars, and the position of the cars following the impact. Oral evidence which establishes uncontroverted physical facts which demonstratably govern the facts may be a basis for a directed verdict. Hartig v. American Ice Co., 290 Pa. 21, 137 A. 867 (1927); Cromley v. Pa. R. Co.

The trial court was therefore correct in directing a verdict.

The second issue in this portion of the appeal concerns the size of the verdict. Our scope of review is narrow. We will not disturb the trial court’s judgment absent a clear abuse of discretion. Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963); Robert v. Chodoff, 259 Pa.Super. 332, 393 A.2d 853 (1978). The trial judge refused to modify the jury's verdict of $800,000.00. The size of the verdict on the facts before this court is not “so grossly excessive as to shock our sense of justice”, and we therefore will not substitute our judgment for that of the jury which heard and evaluated all the evidence at trial, and that of the trial judge who reviewed the size of the verdict. Skoda v. West Penn Power Co.; Kane v. Scranton Transit Co., 372 Pa. 496, 94 A.2d 560 (1953),

The order of the court of June 25, 1980 denying appellant’s motion for a new trial as to count 1 of the complaint and entering judgment thereon in the amount of $800,-000.00. together with damages per Pa.R.C.P. No. 238 and costs is affirmed.

725

This appeal from the nonsuit of the plaintiff-parents challenges the court’s order directing plaintiffs to proceed to trial on May 12, 1980, represented by a partner of their personal attorney, and denying their request to continue the case for approximately two days so as to insure their chosen attorney’s availability. The trial was conducted on May 12 and 13, under protest by Arthur L. Leonard and thereafter through its conclusion by appellant’s chosen attorney, Dennis J. Mulvihill, together with Mr. Leonard. Our scope of review on appeal is whether the trial judge abused his discretion. The Krupas maintain that he did. They assert there was a reasonable explanation for counsel’s unavailability and no other attorney could proceed in place of unavailable counsel in view of the complexity of the case.

We hold that the trial court abused its discretion in refusing to grant a continuance to the plaintiff. Nerkowski v. Yellow Cab Company of Pittsburgh, 436 Pa. 306, 259 A.2d 171 (1969).

The case was originally scheduled to be tried during the February Term, but it was never called for trial. It was next listed to be tried during the April, 1980 term; however, it was continued because defense counsel had a conflicting appearance in the federal court for the Western District of Pennsylvania. Finally, to insure that the case would be heard during the May, 1980 term, plaintiffs counsel requested the trial court to issue an order requiring the case to proceed to trial on May 12, 1980. The trial court issued the requested order. In the interim, plaintiffs counsel was called to trial in another county. The case was expected to end prior to May 12, 1980, but lasted longer than expected, ultimately terminating on May 14, 1980. On May 9, the partner of plaintiffs counsel requested a continuance of two to three days. The request was refused. This was in spite of the fact that May 12 was the first day of the May trial term and the instant case was the first case on the list.

Pa.R.C.P. No. 218 states in part, “[W]hen a case is called for trial, if one party is ready and the other is not ready, without satisfactory excuse being made known to the court, a nonsuit may be entered ...” (emphasis added).

In Snyder v. Port Authority of Allegheny County, 259 Pa.Super. 448, 393 A.2d 911 (1978), this court (citing Nerkowski, supra) expressed four factors which must be used to determine whether a continuance was improperly denied. “[Wjhether there was prejudice to the opposing party by a delay, whether the opposing counsel was willing to continue the case, the length of the delay requested and the complexities involved in presenting the case.” Id., 259 Pa.Superior Ct. at 453, 393 A.2d at 914.

In the present case, an analysis of these factors leads to a conclusion that the continuance should have been granted. Generally, where an attorney is unavailable for trial because of a conflicting commitment in another court, the courts have found this to be a “satisfactory excuse.” Dublin Sportswear v. Charlett, 485 Pa. 633, 403 A.2d 568 (1979); Budget Laundry Company v. Munter, 450 Pa. 13, 298 A.2d 55 (1972). There is no indication of any overwhelming prejudice to the defendant that could not have been remedied by the imposition of costs upon the plaintiff pursuant to Pa.R.C.P. No. 217. The trial transcript of May 12, 1980 shows that the partner of plaintiffs’ counsel made an oral motion for a continuance which was opposed by counsel for the defendant. However, even defense counsel concedes that any prejudice to the defendant could be remedied by the imposition of costs. Although counsel opposed the motion, his opposition was not strenuous. In any event, this factor is not paramount. There will almost always be one party, armed and ready for battle, who will oppose the delay of the onset of hostilities. Absent a showing of prejudice to the nonmoving party, the other factors are of greater weight. There was no demonstrable prejudice to the defendant herein.

Counsel for the plaintiff requested a continuance of only two to three days. This delay would not have resulted in the case being moved to another court term. The instant case was first on the list and there were eighteen other cases on the list. If the instant case had been delayed only two days there would have been no waste of judicial resources since the other cases could be advanced, nor any long term delay in the trial since it would have still been held in the May, 1980 term. Snyder v. Port Authority of Allegheny County; Nerkowski v. Yellow Cab Company of Pittsburgh.

Finally, our courts have often found that a party should not be required to be represented by substitute counsel where the case is a complex one. Nerkowski v. Yellow Cab Company of Pittsburgh; Budget Laundry Company v. Munter. In the present case the plaintiff-father was non-suited for failure to meet the threshold requirements for tort liability under the No-Fault Act of 40 P.S. § 1009.101 et seq. The plaintiff-father sustained facial scarring in the accident. He was claiming that this constituted “... injury which in whole or in part consists of cosmetic disfigurement which is permanent, irreparable and severe.” 40 P.S. § 1009.301(a)(5)(D). The trial court found that the facial scarring that plaintiff-father sustained, “... does not comport with the Court’s concept of ‘permanent, irreparable and severe’ injury.”

The question of whether or not facial scarring constitutes “permanent, irreparable and severe injury” sufficient to sustain a tort action is normally one for the jury, not for the court. Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982); Beazley v. Pierce, 19 D. & C.3d 729 (1981). However, due to the paucity of case law interpreting 40 P.S. § 1009.301(a)(5)(D), the presentation of evidence to the court and jury regarding facial scars can have a great deal of influence on the outcome of the case. Plaintiff may have been severely prejudiced in not having the counsel of his choice present the evidence. Counsel’s familiarity with the case could have a great impact in such a presentation. The claim of plaintiff-wife Mary Jane Krupa for consortium, also non-suited, is derivative of her husband’s claim and thus also prejudiced by the court’s order.

We therefore reverse the order of the court appealed from at appeal number 725 and remand to the lower court for retrial of the claims of James Krupa and Mary Jane Krupa only. If evidence is presented of “cosmetic disfigurement which is permanent, irreparable and severe”, then the issue of whether such injury meets the standards of the statute should be submitted to the jury.

409/552

Finally, the Krupas challenge the April 28, 1980 order entered before the beginning of the trial May 12, 1980. The order directed Williams’ insurer, Nationwide, to pay into court the $50,000 policy limit on the claim of David Krupa, plus an amount for delay, allegedly computed according to the terms of Pa.R.C.P. No. 238. In addition, the court directed that “upon payment of the same, Nationwide is relieved of its liability under Counts 1 and 11 of the Complaint, this being the damage claim of David E. Krupa.” The entire order was purported to be made pursuant to Rule 238.

The April 28, 1980 order resulted from a series of steps taken by the parties prior to trial, in the course of negotiating a settlement. A pretrial conference was held February 5, 1980, with both parties represented. The Krupas’ counsel offéred to settle the claim of David Krupa for the policy limit, $50,000, but withdrew the offer when counsel for Nationwide, representing the interest of its insured, Lawrence Williams, was unable to respond to this offer immediately. Evidently, there were further negotiations in which Nationwide offered to settle David Krupa’s claim for the $50,000 but as no offer was forthcoming for the parents’ claims, this offer was refused.

On February 14, 1980, counsel for Nationwide filed a petition “for leave to pay money into court” and an accompanying rule to show cause. Nationwide’s petition recites the existence and size of the insurance policy and alleges an offer of settlement by the insurance company to the Krupas, none of which is denied by the Krupas. The relief requested in the petition, however, went significantly beyond the facts recited therein:

Wherefore ... Nationwide ... requests leave to pay to the Prothonotary the maximum coverage under their policy of $50,000 on the claim of David E. Krupa, a minor, and to be released from further liability under the terms of the policy and for the payment of any further sum... (76a-77a.) (emphasis supplied).

The rule was signed by the court and a return day set. Nothing in the rule itself requests release from “further” sums. The rule merely directs plaintiff Krupas to show cause “why said sum should not be paid into court...” (80a.) On the return date of April 28, 1980, the party that petitioned for the rule, described throughout in the transcript of the proceedings on that date as Nationwide Insurance Company, appeared, but counsel for appellant Krupas did not. (81a et seq.) The court’s order of that date directed payment to the court and release from further liability, as prayed for in the petition. The order explicitly releases only Nationwide and not its insured, Lawrence Williams, from excess liability above the settlement offer amount on the claim of David Krupa only. The record does not reveal that service of the petition or rule was made on Williams. Counsel for Krupas promptly petitioned the court to “vacate, strike, or amend” this order to the extent that it went beyond the tender of $50,000 and purported to determine the total extent of liability under the insurance contract, including possible liability beyond policy limits. (92a et seq.) Said petition was denied. (104a.) Both parties have recognized that the underlying issue is the possibility of a claim of “bad faith” against Nationwide for liability above policy limits.

On appeal, as in their petition to amend the order, the Krupas challenge only the release from liability for the verdict over and above the policy limit. We find merit in the Krupas’ argument.

The order in question misuses Pa.R.C.P. No. 238 as the basis of a determination of liability. Rule 238 authorizes a court to award specified damages for delay to a plaintiff except when defendant has made a written offer of prompt cash payment to the plaintiff and the plaintiff is awarded a verdict of no more than 125% of the offer. The Rule’s purpose and effect is to prompt insurers to make good faith offers to settle. There is no provision under the Rule for the court to become the stakeholder as it did in the instant case. Rule 238 is geared to negotiations and settlement between the parties; these offers do not require court approval. If the trial court chooses to act as stakeholder, as it did in this instance, it is merely that. Rule 238 itself provides no basis for an order determining aspects of the insurer’s liability other than damages for delay.

It is true that under Rule 238(e), a defendant may seek an order relieving it of liability of damages for delay after a trial or arbitration at which an award is made. This relief is obtainable after trial, not before, and cannot go beyond the question of whether a 10% delay penalty should be fixed. The order appealed from, however, issued before a trial, appears to invalidate any claim for further delay damages, and also any other claim, such as a claim of bad faith that might be asserted against Nationwide. We expressly do not comment on the merits of any possible bad faith claim.

Nationwide’s use of the rule to show cause procedure to effectuate the result it sought was also incorrect. A rule to show cause is not original process with which to initiate resolution of a dispute which properly belongs in equity. Cooney v. Pennsylvania Osteopathic Assoc., 434 Pa. 358, 253 A.2d 256 (1969). Yet the order complained of initiates and purports to resolve finally the issue of bad faith on the part of Nationwide. If there are such claims between insured and insurer they are separate claims not part of the present litigation. In addition, as stated above, the extent of damages for delay per Rule 238 cannot be determined prior to trial, by a rule or otherwise. The extent of Nationwide’s liability is a core issue and should not be determined through the vehicle of a rule to show cause, especially where the rule itself did not give the Krupas notice that the issue of liability would even be considered. Here, the order purports to and may be interpreted to determine finally possible liability of Nationwide beyond the limits of the policy with defendant Williams.

Additionally, it should be noted that the rule to show cause was an improper procedure to determine excess liability of Nationwide as it created a conflict of interest between petitioner Nationwide, as insurance company, and the real defendant Lawrence Williams, its insured.

In the context of automobile accident litigation, where a driver/defendant is represented by his insurer’s attorney, the defendant is entitled to “the exercise of the utmost good faith in view of the possible conflict of interest between the insurer and the insured which may develop.” Rudisill v. Nationwide Ins. Co., 76 York 133, objections dismissed 77 York 74 (1962). This duty continues even if policy limits are paid or promised on the claim, until the litigation is concluded by judgment or settlement. Firemen’s Ins. Co. v. Ketner, 13 D. & C.3d 223 (1979). Thus, the instant order, insofar as it relieves Nationwide, but not its insured Williams, from liability greater than policy limits, represents a clear case of conflict of interest. If there are actionable “bad faith” claims—and we do not conclude whether there are—Williams was not represented with the “utmost good faith” in the petition leading to the order complained of.

An automobile insurer representing its insured in a negligence action should not, prior to trial and without notice to its insured, be permitted to use a rule to show cause to absolve itself of liability beyond policy limits to its insured or to others on behalf of its insured.

The order appealed from is reversed insofar as it relieves the Nationwide Insurance Company from liability for claims over and above the $50,000 policy limit, if such claims are otherwise properly proved.

Conclusion

In summary, we rule as follows on the several appeals of this litigation:

Nos. 409/552 Pittsburgh, 1980: The order of the court relieving Nationwide Insurance Company of liability beyond the policy limit is reversed.

No. 701 Pittsburgh, 1980: The order of the court directing a verdict for plaintiff David Krupa and refusing to disturb a jury verdict in the amount of $800,000.00 is affirmed.

No. 725 Pittsburgh, 1980: The order of the court refusing to remove a nonsuit as to James Krupa and Mary Jane Krupa is reversed.

The case is remanded for further proceedings consistent with this opinion.

      . Nationwide was "authorized” to pay $1,666.00 for delay, apparently for the time between plaintiffs' offer to settle and the date of the offer.

      . Appellee argues strenuously that this appeal should be quashed as interlocutory. Its motion to quash was initially denied December 24, 1980, by this court, without prejudice to argue the matter further before this panel. As trial has resulted in a verdict for plaintiff considerably beyond policy limits, the order does determine finally rights of the parties. We will not quash.

      . By this concern about notice, we do not endorse appellant’s argument that a final order on a rule to show cause cannot go beyond the rule to encompass a matter of which notice was given in the petition.

        The authority appellant cites states, rather, that it is not "good practice” to do so, and we agree that in the interest of an orderly and fair proceeding it is not. It is also not good practice for an attorney who has notice of the rule, as in this instant case, not to attend a hearing on a return date.


author: PER CURIAM:

text:
    463 A.2d 438
    Homer A. BOHNER and Frances W. Bohner, His Wife, Appellants, v. Jeffrey R. STINE.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1982.
    Filed July 15, 1983.
    Petition for Allowance of Appeal Denied Feb. 3, 1984.

      See also, 436 A.2d 705.

      Bruce D. Desfor, Harrisburg, for appellants.
    David E. Lehman, Harrisburg, for appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   PER CURIAM:

Following an automobile collision which occurred on October 1, 1976, plaintiffs-appellants filed an action in trespass against defendant-appellee seeking recovery for personal injuries and other damages. A jury trial was held before the Honorable Harold A. Sheely, and a verdict was returned in favor of defendant-appellee. Appellants’ timely filed motion for a new trial was denied, and an appeal to this court was taken. The appeal was quashed as the verdict had not been reduced to judgment. Bohner v. Stine, 292 Pa.Super. 31, 436 A.2d 705 (1981). Judgment was thereafter entered and the instant appeal was perfected. We reverse the judgment of the trial court and remand for a new trial.

Appellants assert that the trial court’s charge to the jury was misleading and an inaccurate statement of the law. They argue that the jury was not properly advised that skidding, on a wet roadway is not, in and of itself, justification for crossing the center line; and, that the trial court’s instructions regarding the shifting of the burden of proof to defendant-appellee, who crossed the center line, was misleading.

That portion of the trial court’s charge which is relevant to appellants’ specific claims reads as follows:

"... these particular statutes dictate the duty of care normally required of a person in the same situation as the defendant. Ordinarily the unexplained violation of these statutes or any one of them would constitute negligence as a matter of law. In this case, however, the defendant has presented evidence in excuse or justification for being on the other side of the road. He has explained it by saying that under these circumstances what he did, his car skidded.
When a driver permits his car to deflect from its cause [sic] and to skid across the highway into another car, the jury may infer that he was negligent. Under the circumstances here presented, the law says that the defendant who offers such an excuse has the burden of proof that he was on the other side without any fault of his own. Therefore, if you find that there was a violation of any of these three statutes, it would be evidence of negligence which you should consider along with all the other evidence presented on the question of whether the defendant was negligent.”

In evaluating a claim of erroneous instructions to the jury, we must analyze the court’s charge in its entirety. Morris v. Moss, 290 Pa.Super. 587, 435 A.2d 184 (1981). A review of the above exerpt within the context of the entire charge evinces no error on the part of the trial court.

At the conclusion of the court’s instructions to the jury, appellants requested that the court read several points for charge concerning issues of liability. Appellants asserted that the court had not adequately covered the shift of the burden of proof to appellee who was on the wrong side of the road at the time of the accident. The trial court refused the request on the ground that he had substantially covered the subject in his charge.

If a legally valid requested point for charge is sufficiently and adequately covered in the trial court’s instructions to the jury, it is appropriate to deny the request. Perigo v. Deegan, 288 Pa.Super. 93, 431 A.2d 303 (1981); Buchecker v. Reading Company, 271 Pa.Super. 35, 412 A.2d 147 (1979).

Furthermore, this court in Kenworthy v. Burghart, 241 Pa.Super. 267, 282, 361 A.2d 335, 343 (1976), set forth the standard form of instructions to be given when evidence is presented in excuse or justification of a Motor Vehicle Code violation. The trial court herein followed the Kenworthy charge almost verbatim. He clearly, fairly and thoroughly covered the shifting of the burden of proof, the assured clear distance rule, and weather and road conditions as they relate to the rule.

Appellants also claim that the trial court erred by not permitting trial counsel to explain the effect of the Pennsylvania No-Fault Motor Vehicle Insurance Act (hereinafter “No-Fault Act”) to the jury during opening and closing remarks. The court explained the propriety of the denial of the request by stating in response to the motion for a new trial that the jury never reached the issue of damages.

The legislature’s findings and intended purposes are delineated in section 102 of the No-Fault Act. Pertinent portions of the section provide:

§ 1009.102 Findings and purposes
(a) Findings.—The General Assembly hereby finds and declares that:
(3) the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce;
(4) to avoid any undue burden on commerce during the intrastate transportation of individuals, it is necessary and proper to have a Statewide low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims and the survivors of deceased victims;
(b) Purposes.—Therefore, it is hereby declared to be the policy of the General Assembly to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims. 40 Pa.S.A. § 1009.102 (Emphasis added).

The above statutory language clearly indicates that the legislature intended the Act’s primary purpose to be one of compensation or, in other words, damages. Cf., Pennsylvania Assigned Claims Plan v. Insurance Commissioner of the Commonwealth, 54 Pa.Cmwlth. 93, 420 A.2d 25 (1980).

Appellants’ suit was founded upon the tort liability remedy preserved by section 301 of the No-Fault Act. They argue that despite the compensatory nature of the Act, the jury should not have been asked to determine an issue of fault without first hearing an explanation of a statute which declares that Pennsylvania is a “No-Fault” jurisdiction. The court’s instructions, however, negate appellants’ assertions.

The jury was instructed that liability or fault could attach to defendant-appellee if they found that his negligence was the proximate cause of husband-appellant’s injuries. This and other instructions included in the charge evince that a reasonable person serving as a juror could not have inferred that the existence of the No-Fault Act dictated a finding of no liability. The trial court, therefore, properly denied appellants’ request. The action of the court is reinforced by the intended purpose of the Act, as a discussion of the Act could have served to confuse the jurors instead of enlightening them.

Appellants’ next assignment of error is that the trial court erred when it refused to permit further exploration of the jury panel’s background during voir dire. Prior to trial, appellants moved for permission to ask seventeen questions of the panel on voir dire examination. The trial court granted the motion as to twelve of the proposed questions and denied it as to the remainder. Appellants argue that the denied questions were necessary to expose any contingent financial interests in the outcome of the case which are not readily ascertainable from more general inquiries.

The sole purpose of voir examinations is to secure a fair, competent and impartial jury. Bentiviglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972). Using these guidelines, the trial court determines the scope and extent of the examinations. Lenkiewicz v. Lange, 242 Pa.Super. 87, 363 A.2d 1172 (1976). Its rulings will not be disturbed on appeal absent a clear abuse of discretion. Lenkiewicz v. Lange, supra. Our review of the following proposed questions reveals that the trial court’s denial was not an abuse of discretion.

7. Whether any member of the jury or their immediate families are stockholders in any company which, in whole or in part, is engaged in the casualty or liability insurance business.
8. Whether any member of the jury or their immediate families are now or have been employed as a claims adjustor or otherwise by a company or concern which, in whole or in part, was engaged in the casualty or liability insurance business.
11. Whether any of the jurors have served on prior civil juries and if they have, whether they have ever heard of a case which they regard to be similar and further, whether they understand that each case is different and is to be decided on its own merits.
12. Whether, if appropriately satisfied under the evidence and the law, any member of the jury would, for any reason, hesitate to award a substantial verdict.
17. Have any of the prospective jurors read large advertisements in national news magazines advocating smaller damage awards or changes in our system of law which would limit a plaintiffs right to recover for personal injuries?

The preferred practice during voir dire examinations is to permit general inquiries regarding the direct or indirect interest of the jurors in the parties to, and the result of, the litigation. Price v. Yellow Cab Company of Philadelphia, 443 Pa. 56, 278 A.2d 161 (1971). The trial court herein permitted appellants to make several general inquiries designed to elicit information from prospective jurors relevant to any fixed opinions about, or interests in, the matter they were about to hear. Appellants were also able to specifically ask whether any panel member was employed by an insurance company, and whether any was in the business of investigating claims. We find, therefore, that questions seven and eight above were properly refused, and appellants were not denied the right to show bias or interest of the veniremen.

Proposed question number eleven was also properly denied as such an inquiry does not reveal competence or incompetence to serve as a juror. Commonwealth v. Corbin, 426 Pa. 24, 231 A.2d 138 (1967).

As to number twelve, it has been determined that it is inappropriate to ask whether prospective jurors would be able to render a substantial verdict. Selby v. Brown, 250 Pa.Super. 134, 378 A.2d 862 (1977). Question seventeen evokes a different concern, however.

This inquiry invited responses which would not necessarily reflect a juror’s fixed inability to render an impartial judgment. Starr v. Allegheny General Hospital, 305 Pa.Super. 215, 451 A.2d 499 (1982). Therefore, the only use for the question could have been to gain information for peremptory challenge purposes which is inappropriate. See, e.g., Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977).

Finally, appellants assert that the verdict for defendant-appellee was against the weight of the evidence. We agree and grant a new trial on this question alone.

When reviewing a weight of the evidence question, we must consider all of the evidence presented. Weaver v. Firestone Tire and Rubber, 267 Pa.Super. 548, 407 A.2d 45 (1979). A new trial will be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. Dixon v. Andrew Tile and Manufacturing, 238 Pa.Super. 275, 357 A.2d 667 (1976).

There is no dispute as to the basic facts herein. The evidence offered by appellee at trial to justify the fact that his vehicle skidded into the oncoming lane of traffic, however, is insufficient to sustain a finding of no negligence. This determination is premised upon the legal maxim that a driver crossing the center line of a roadway, and thereafter causing a collision, is negligent per se. Kenworthy v. Burghart, supra. The only evidence offered by appellee in an attempt to meet his burden of proof was that the road was wet, the car in front of him suddenly slowed down to make a turn, and there were wet leaves in certain places on the road.

The condition of the roadway must be considered by a driver in regulating his speed and controlling his vehicle. 75 Pa.C.S.A. § 3361. Furthermore, under the “assured clear distance rule” a driver must have his vehicle under such control and operate it at such a speed as to safely stop within the assured clear distance ahead. Brown v. Schriver, 254 Pa.Super. 468, 386 A.2d 45 (1978). The sudden slowing or stopping of a vehicle ahead must be anticipated. Kmetz v. Lochiatto, 421 Pa. 363, 219 A.2d 588 (1966); and, cf., Blockinger v. Schweitzer, 419 Pa. 342, 214 A.2d 244 (1965).

The testimony offered by the investigating officer revealed that immediately after the accident appellee admitted to panicking and hitting his brakes harder than he had to, thereby losing control of his automobile on the wet roadway. Appellee did not deny making that statement when asked about it during cross-examination. Our review of all of the evidence adduced at trial relevant to the reasons for the skidding of appellee’s car, when viewed in light of the applicable law, supports appellants’ claim that the verdict was against the weight of the evidence.

The judgment of the trial court is reversed and a new trial is granted. We relinquish jurisdiction.

      . The trial court was referring to three specific sections of the Motor Vehicle Code of 1959, as amended, which he had read and explained to the jury: 75 P.S. § 1002(a) (Restrictions as to speed); 75 P.S. § 1004 (Drive on right side of highway); and, 75 P.S. § 1006 (Meeting of vehicles). These sections were repealed, and substantially similar statutory provisions were enacted, by the Act of June 17, 1976, P.L. 162, No. 81, as amended. The new provisions, effective July 1, 1977, are respectively, 75 Pa.C.S.A. § 3361 (Driving vehicle at safe speed); 75 Pa.C.S.A. § 3301 (Driving on right side of roadway); and, 75 Pa.C.S.A. § 3302 (Meeting vehicles proceeding in opposite direction).

      . The assured clear distance rule requires that a driver must control his vehicle such that he can always stop within the distance which he can see. Toff v. Rohde, 208 Pa.Super. 411, 222 A.2d 434 (1966); Metro v. Long Transportation Company, 387 Pa. 354, 127 A.2d 716 (1957).

      . 40 Pa.S.A. § 1009.101 et seq.; Act of 1974, July 19, P.L. 489, No. 176, Art. I, § 101 et seq., effective in 12 months.

      . 40 Pa.S.A. § 1009.301 provides certain exceptions to the abrogation of tort liability under the No-Fault Act. The exceptions include inter alia, losses which are noncompensable under certain other sections of the Act, and those losses which exceed specified threshold requirements of the Act.

      . See also the discussion hereinbefore regarding instructions to the jury when skidding is offered as the reason for crossing into the oncoming lane of traffic.

      . Neither the automobile nor the driver were ever located in order to corroborate appellant’s testimony.


author: CERCONE, President Judge:

text:
    463 A.2d 444
    COMMONWEALTH of Pennsylvania, Appellant, v. William J. KELLY.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1982.
    Filed July 22, 1983.
    Petition for Allowance of Appeal Denied Nov. 4, 1983.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    Nicholas J. Nastasi, Philadelphia, for appellee.
    Before CERCONE, President Judge, and BROSKY and BECK, JJ.
   CERCONE, President Judge:

Appellee, William J. Kelly, a former Philadelphia police officer, was found guilty by a jury of three counts of perjury, one count of Obstruction of Justice, and one count of Bribery. He was sentenced to concurrent terms of three to twenty-three months imprisonment on each charge of Perjury. On direct appeal, this court affirmed appellee’s judgment of sentence. Our Supreme Court granted a petition for allowance of appeal; it affirmed. Appellee then filed an appeal under 28 U.S.C.A. § 1257(2) in the United States Supreme Court. That court dismissed the appeal for want of jurisdiction and also denied certiorari, treating the pleading alternatively as a petition for a writ of certiorari.

At his trial and before this Court, appellee was represented by Anthony D. Pirillo, Esquire. Alfonso Tumini, Esquire, pleaded appellee’s case before the Pennsylvania Supreme Court. Both attorneys were retained by the Philadelphia Fraternal Order of Police as part of its service for the defense of accused police officers, during the pendency of appellee’s case. Appellee filed a petition and also an amended petition pursuant to the Post Conviction Hearing Act in which he alleged that the contractual relationship between his attorneys and the Fraternal Order of Police denied him effective assistance of counsel. Appellee asserted that a conflict of interest tainted his attorneys’ representation of him. In particular, he argued that Mr. Pirillo’s representation of other officers prevented him from recommending that appellee cooperate and assist the Special Prosecutor because such a recommendation might implicate Pirillo’s other clients. After a hearing on the allegations in the petition, the lower court granted appellee’s requested relief of a new trial.

The Commonwealth appealed, urging that appellee has waived the conflict issue because of a colloquy in which appellee participated prior to his appearance before the grand jury. The Commonwealth also asserts that no conflict of interest existed in appellee’s attorney’s representation of him as well as other police officers, any more than it exists by appellee’s current representation by an attorney who is also retained by the Fraternal Order of Police. Because we find that the lower court erred in vacating the judgment of sentence and in granting a new trial, we reverse the order of the lower court.

Our task in reviewing the decision of the lower court is limited to a determination of whether the findings of the court are supported by the record. Commonwealth v. May, 296 Pa.Superior Ct. 435, 442 A.2d 1129 (1982). We find no error in the lower court’s conclusion that appellee has not waived the instant issues in failing to raise them at an earlier stage in the proceedings. Rather, we find that, contrary to the lower court’s conclusion, multiple representation was not present in this case such that it would give rise to a possibility of harm to appellee. Consequently, we decline to find that appellee was denied his right to effective assistance of counsel when he was defended by Mr. Pirillo.

The test for determining whether appellee was afforded effective assistance of counsel was set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel must be shown to have had some reasonable basis designed to effectuate his client’s interests by his representation. The United States Supreme Court dealt with allegations of ineffective assistance of counsel in the context of a purported conflict of interest in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). There the court stated

Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Id. at 347, 100 S.Ct. at 1719.

Our own Supreme Court granted the Commonwealth’s petition for allowance of appeal in Commonwealth v. Pinhas, 496 Pa. 210, 436 A.2d 618 (1981), in order to consider the case in light of Cuyler v. Sullivan, supra. The Court, found that an actual conflict of interest was present in appellee’s case by the fact that a plea bargain was negotiated by sole counsel for three defendants on the condition that it be accepted by all three. The plea bargain was acceptable to two, but not to the third. Such evidence the Court said was conclusive of a conflict of interest such that the defendant was denied his Sixth Amendment right to effective assistance of counsel by counsel’s continued multiple representation.

Thus, what we must search for in the proceedings below is the presence of an actual conflict of interest. This manifests itself by a showing of a possibility of harm to the defendant. Actual harm need not be shown. Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974). Ethical consideration 5-14 of the Code of Professional Responsibility, adopted by the Supreme Court of Pennsylvania on February 27, 1974, provides some guidance:

Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.

See also Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962) and Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968).

The lower court found that defendant met his burden of demonstrating a possibility of harm in that by Mr. Pirillo’s representation of all members of the F.O.P., he was privy to confidential information which impeded his full representation of appellee. While it is true that Mr. Pirillo represented appellee as well as other officers before the grand jury, it is also true that only appellee was indicted by the grand jury. So, by the time of trial, only Kelly, the appellee, was a client of Mr. Pirillo’s, although he had represented the following officers in their appearances before the grand jury: Grawl, Candito, Cole, Dougherty, Zongalawitz and Haggerty. Thus, this case does not present the usual multiple representation problems. No one but Kelly was being tried as a result of his grand jury appearance. Indeed, no one but Kelly was charged. We fail to see the conflict inherent in this situation as such.

The lower court found a conflict was visible in Mr. Pirillo’s failure to call one of these officers, Dougherty, as a witness in the defense of his client. However, our review of the trial record does not support this conclusion. The chief witness against Kelly was one Joseph Narcise who testified as to five separate occasions of bribery by Kelly. However, Dougherty was present with Kelly on only two of those occasions, and these were not those for which Kelly was being tried at that time. We fail to see how calling Dougherty to corroborate Kelly’s defense would have been possible, given the fact that Dougherty was not alleged to have been present during the bribery charges at issue at trial. This fact is not contradicted by Mr. Pirillo’s explanation as to why he refused to call Dougherty as a defense witness. This exchange occurred at the Post Conviction hearing:

Q. [by Mr. Nastasi] You also learned that Mr. Narcise was claiming that Officer Dougherty took bribes?
A. [by Pirillo] Yes.
Q. The fact that you did not call Dougherty, sir, can you tell us now at this time what your reason for not calling him was? Do you recall it?
A. Only could be because of one or two reasons. I don’t recall specifically now but it would either—
Q. I’m not asking you to speculate. I’m asking you if you remember.
A. Do I recall why I didn’t call him? No, I don’t recall exactly.
A. I had that happen once in one of the Special Prosecutor cases and I just don’t remember which case it was in but I think that what you’re essentially asking me is did I not call Officer Dougherty because I thought it might put Officer Dougherty in trouble and I can’t honestly say that. If I didn’t call Officer Dougherty, I didn’t call Officer Dougherty because it was a tactical decision for the benefit of the case I was trying at the moment and I just couldn’t do it any other way.
Q. [by Mr. Ryan, Assistant District Attorney]: Now you stated on direct examination that you did not recall the precise reason why you didn’t call Officer Dougherty. According to your general practice, why would you not have called a witness for Mr. Kelly in this case?
A. [by Mr. Pirillo]: Well, I would not call a witness if I thought either his story would be unbelievable and therefore would hurt my client or if I thought his testimony might be damaging to my client or if I thought in some cases if he had nothing to add I just wouldn’t call a man for the sake of calling another witness. Any one of a number of reasons why you wouldn’t call a witness.

Contrary to the lower court, we are unable to find any support for its conclusion that there was no reasonable basis for Pirillo’s failure to call officer Dougherty as a witness for Kelly. Because his testimony would have been irrelevant, we cannot agree that Dougherty would have been relevant to rebut Narcise’s testimony. Furthermore, the record establishes, contrary to the lower court’s finding, that Dougherty was not represented by Pirillo at the time of Kelly’s trial. It is too speculative a matter for any court to conclude, as did the lower court that “[i]n not calling Officer Dougherty, Mr. Pirillo shielded him from the dangers of impeachment and possible reindictment, but in the eyes of this court, sacrifices his client’s best interests.” Thus, as to Pirillo’s failure to call Dougherty at trial, we decline to attribute this to Pirillo’s ineffectiveness, absent any evidence that the decision not to call him resulted from a conflict of interest. The record is devoid of such evidence.

Appellee cites Glasser v. U.S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) in support of his assertion that Pirillo limited his cross-examination of prosecution witness, Lieutenant Cole, whom Pirillo had also represented before the grand jury. (The lower court does not comment on this assertion.) In Glasser, the Supreme Court found an impermissible actual conflict of interest was present when defense counsel failed to cross-examine a prosecution witness whose testimony linked the defendant, but not his jointly represented co-defendant, with the crime, and when the attorney failed to object to the admission of arguably inadmissible evidence against him which likewise was conflict related. This case does not come close to Glasser in evidence of conflict.

Lieutenant Cole was called by the prosecutor because of his former position as superior to appellee Kelly. He was asked to verify paperwork which he approved that showed Kelly was involved in an arrest at a time when he swore on an affidavit for a search warrant that he was conducting surveillance of a bar. The record reveals that Pirillo did indeed cross-examine Cole aggressively. And when asked at the PCHA hearing whether his cross-examination was in any way compromised by his prior representation of Cole, Pirillo answered:

No, my recollection is now that I cut short my cross-examination of Lieutenant Cole because it was apparent from the manner in which he was answering that he was not the friendliest of witnesses and I figured before I force him into saying something which either was not so just for the sake of getting back at a guy who is cross-examining him, that I would just sooner cut the cross-examination short.
A matter of trial tactics, that’s all.

This justification does not indicate the presence of any possibility of harm to appellee because of any prior representation of Cole.

Our review of the record convinces us that appellee did not meet his burden of proving actual conflict of interest giving rise to a possibility of harm to appellee in the proceedings below. On the contrary, defense attorney Pirillo represented his client actively and aggressively. Tactical decisions of attorneys in the defense of a client should not be interpreted as products of conflicting interests in the absence of more evidence than was elicited at the PCHA hearing. This is not the case in which one attorney representing two co-defendants, refused to call one to exonerate the other, which fact induced appellant to plead guilty. Commonwealth v. Lantzy, 284 Pa.Superior Ct. 192, 425 A.2d 768 (1981). Nor is it the situation in which counsel for one defendant neglected his co-defendant’s case in order to afford the former a more spirited defense. Commonwealth v. Rodrigues, 285 Pa.Superior Ct. 579, 428 A.2d 197 (1981). As Mr. Justice Nix expressed it in his dissenting opinion in Commonwealth v. Breaker, 456 Pa. 341, 351, 318 A.2d 354, 359-360, “the duty of courts to assure full enjoyment of constitutional rights should not be confused with the conjuring of imaginary demons which serve only to impede law enforcement and frustrate justice.” Our reading of the record persuades us that any conflict to be found in Pirillo’s representation of Kelly is to be found only in an imaginary realm.

Given the significant case of Pirillo v. Takiff, supra, it is necessary for us to comment on how it relates to the instant case. In Pirillo v. Takiff, our Supreme Court declined to issue a writ of prohibition to the supervising judge, Takiff, of a regular grand jury which was conducting a special investigation into bribe-taking by members of the Philadelphia police department. The judge disqualified Pirillo and his associate from representing twelve witnesses which were subpoenaed to testify before the grand jury. (Kelly was not one of those witnesses.) In upholding Pirillo’s disqualification by the lower court, the Supreme Court said:

Here, however, where each witness was a potential defendant, and the Court received information that the testimony of each officer might be expected to incriminate one or more of the other witnesses, and where the extent of the possible multiple cross-involvement in criminal activity is known to the Court but hidden from the individual witnesses by the requirements of secrecy, it is inappropriate for the supervising judge to permit multiple representation. Pirillo v. Takiff, 462 Pa. at 531, 341 A.2d at 906.

In Pirillo, supra, multiple representation of twelve witnesses was the issue. With the special prosecutor alleging that each officer would be asked to testify against the others, it was evident that a great possibility of harm redounded to each multiply-represented defendant. In the instant case, there is no issue of multiple representation. And it is well-settled that even multiple representation alone does not amount to a conflict of interest. Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968). It is Pirillo’s conduct of Kelly’s defense which is being challenged as ineffective because tainted by prior representation of other officers. We cannot extend the holding of Pirillo v. Takiff, supra, to such a degree.

The Supreme Court also found danger inherent in the fact that the F.O.P. paid the officers’ legal fees since the organization may have interests adverse to the best interests of the testifying officers. More specifically, the F.O.P. had adopted a tactic of noncooperation, which tactic is inimical to the rights of any witnesses who might stand to gain from a strategy of cooperation with the Special Prosecutor’s Office. However, in the instant case, appellee has not argued that he was desirous of cooperating in this way but was dissuaded, and Pirillo himself testified that he never advised Kelly not to cooperate with the Special Prosecutor or the Crime Commission. Thus, the special dangers of Pirillo v. Takiff, supra, are not present in the instant case. That case is readily distinguishable from the instant case.

Therefore, for the reasons enumerated above, the order of the lower court is reversed and the judgments of sentence are hereby reinstated.

BECK, J., concurs in the result.

      . 18 Pa.C.S.A. § 4902.

      . 18 Pa.C.S.A. § 5101.

      . 18 Pa.C.S.A. § 4701.

      . 42 Pa.C.S.A. § 9541, et seq.

      . Prior to appellee’s testimony before the grand jury, a waiver of his right to conflict-free counsel was attempted through a colloquy conducted by the prosecutor. We are reluctant to credit this colloquy with the panoply of guarantees which are necessary for a knowing and voluntary waiver. For as our Supreme Court commented on another similar colloquy:
      ... The witnesses argue that because they have chosen the particular attorney and his associate knowing full well that the attorneys represent all of the policemen subpoenaed and because the attorneys have, as fully as possible, advised the witnesses of the potentiality of the conflicts involved, therefore the witnesses have waived their constitutional right to effective counsel. Such waiver may very well be defective on the ground that it is not a knowing and intelligent waiver; the client may not be fully and adequately informed as to the nature of the potential conflict, because, in this instance, full disclosure to the client, as required by the Code of Professional Responsibility, DR 5-105(C), may be impossible in light of the requirements of secrecy surrounding the grand jury proceeding.

        Pirillo v. Takiff, 462 Pa. 511, 525, 341 A.2d 896, 902-3 (1975), aff’d on rehearing per curiam, 466 Pa. 187, 352 A.2d 11, cert. den. 423 U.S. 1083, 96 S.Ct. 873, 47 L.Ed.2d 94 (1976).
      In addition, appellee has not waived his contentions by failing to raise them at an earlier stage in the proceedings. His attorney on appeal, Mr. Tumini, was a close associate of Mr. Pirillo, who testified at the PCHA hearing that he considered Kelly’s case as still one of Pirillo’s. We cannot expect Tumini to have raised Pirillo’s ineffectiveness in this situation. Cf. Commonwealth v. Grassmyer, 266 Pa.Superior Ct. 11, 402 A.2d 1052 (1979).

      . Narcise testified that he gave both Kelly and Dougherty $50 to get a notebook page back after a raid on Domenick DiBernardino’s house. Also, when Narcise hit on the numbers, he said he paid Kelly and Dougherty $75.00.


author: WICKERSHAM, Judge:

text:
    463 A.2d 450
    COMMONWEALTH of Pennsylvania, v. William KEHOE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1982.
    Filed July 22, 1983.

      Brian S. Quinn, Havertown, for appellant.
    David E. Fritchey, Vram Nedurian, Jr., Assistant District Attorneys, Media, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge:

In this case we are called upon to review the denial of William Kehoe’s petition for relief under the Post-Conviction Hearing Act. Kehoe was charged with rape, kidnapping, involuntary deviate sexual intercourse and unlawful restraint. After Kehoe’s suppression motion was argued and denied the case proceeded to trial before the Honorable Robert F. Kelly and a jury. The jury found Kehoe guilty of involuntary deviate sexual intercourse and unlawful restraint.

Kehoe’s private counsel filed post-verdict motions and withdrew from the case; counsel from the public defender’s office was appointed for Kehoe. Thereafter, Kehoe retained new private counsel and the public defender withdrew from the case. Kehoe withdrew his post-verdict motions and was sentenced to a four to ten year term of imprisonment on February 21, 1978. The public defender was appointed to represent Kehoe on appeal. Kehoe appealed the sentence he received to this court and the judgment of sentence was affirmed per curiam in Commonwealth v. Kehoe, 285 Pa.Super. 633, 427 A.2d 1226 (1981).

Kehoe also filed a pro se petition under the Post-Conviction Hearing Act (PCHA). Counsel was appointed to assist Kehoe and hearings were held following which Kehoe’s petition was denied and this appeal timely followed.

The facts underlying Kehoe’s conviction were developed at trial. The victim, a nineteen year old woman, testified that in August 1976 she went out after work with her boyfriend. During the evening the victim and her boyfriend ran into Kehoe and visited several local bars in his company. The victim eventually found herself alone in a car with Kehoe, who forced her to commit a deviate sexual act and for a time prevented her from leaving the car.

William Kehoe took the stand in his own defense. Kehoe stated that he made the acquaintance of the victim’s boyfriend, who offered the victim to Kehoe for forty dollars. Kehoe said he gave the boyfriend forty dollars and went off with the victim. Kehoe was prepared to have sexual intercourse with the victim but stopped because he believed she was trying to steal money from his pants pocket. Kehoe denied having oral intercourse with the victim.

In this appeal Kehoe argues that the lawyer who advised him to withdraw his post-verdict motions was ineffective for failing to pursue the post-verdict motions and that subsequent counsel were ineffective for failing to raise the ineffectiveness of post-verdict motion counsel. Kehoe does not challenge any specific irregularity in his trial but rather contends that counsel’s withdrawal of post-verdict motions is in itself prima facie evidence of ineffectiveness. No legal or factual grounds for post-verdict motions were brought to our attention.

In Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983) this court said:

Initially, we note that the Pennsylvania Supreme Court recently stated in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981):
Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.
Id. 492 Pa. at 563, 424 A.2d at 1335, see also Commonwealth v. Alexander, 495 Pa. 26, 38, 432 A.2d 182, 187 (1981) (“As successive PCHA petitions are the exceptions, concrete allegations of actual prejudice should be expressed in those petitions. Abstract assertions will not suffice ... petitioner must be able to demonstrate a specific factual predicate for prejudice caused by alleged errors....”)
Section 9545(b)(1) of the PCHA even provides: “The petition must state ... all facts in support of the alleged error on which the petition is based____”
Furthermore, we note that: “The burden of establishing the ground upon which post-conviction relief is requested rests upon the person seeking that relief” Commonwealth v. Jackson, 494 Pa. 457, 459, 431 A.2d 944, 945 (1981) quoting Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976) and, “[i]f counsel fails to raise an issue in post-verdict motions or on appeal, he is deemed to be ineffective only if the issue is of arguable merit,” Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980).

Id., 313 Pa.Superior at 259, 459 A.2d at 838-39. (Slip op. at 3-4).

Here, Kehoe makes only a general claim that all prior counsel were ineffective. Nowhere does Kehoe tell us exactly what claims could have been advanced in post-trial motions. We reject the abstract, unsupported allegation of ineffectiveness proffered by appellant Kehoe.

Order affirmed.

      . 42 Pa.C.S.A. § 9541-51.

      . 1. Whether the failure of appellant's counsel to raise on direct appeal the issue of the ineffectiveness of counsel at the preceding stage denied appellant effective assistance of counsel?
      2. Whether appellant was denied effective assistance of counsel at the post-verdict and sentencing stages?
      3. Whether appellant was denied consideration of substantive issues as a result of ineffective assistance of counsel?
      Brief for Appellant at 2.


author: ROWLEY, Judge: HOFFMAN, Judge,

text:
    463 A.2d 451
    COMMONWEALTH of Pennsylvania, v. Rickey PAYNE a/k/a John Vargas, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1982.
    Filed July 22, 1983.
    Petition for Allowance of Appeal Denied Nov. 10, 1983.

      Manuel Grife, Philadelphia, for appellant.
    Michael Turner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, HOFFMAN and VAN der VOORT, JJ.
   ROWLEY, Judge:

This is a direct appeal from judgments of sentence imposed upon appellant following a jury verdict finding him guilty of two counts of robbery, one count of conspiracy and a charge of possession of a firearm by a former convict. The charges were filed as the result of the gun-point robbery by appellant and two accomplices of between ten and twenty persons at a Philadelphia apartment house on January 11, 1980. Post-trial motions were timely filed. The motions were subsequently amended by new counsel appointed to represent appellant in the post-trial proceedings. On March 9, 1981, the post-trial motions were denied and appellant was sentenced to terms of three to ten years imprisonment on each robbery, and terms of one to five years imprisonment for the conspiracy and firearms possession charges. All sentences were made concurrent. Represented by a third attorney, appellant brought this appeal. We affirm.

The sole issue raised by appellant is set forth in his brief as follows:

The Court erred in permitting testimony concerning the appellant’s previous conviction for burglary in 1974 to be admitted into evidence.

Section 6105 of the Crimes Code, 18 Pa.C.S.A. § 6105, provides:

No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control.

Section 6102 of the Code defines “crime of violence” as the commission or attempted commission of the crimes of “murder, rape, aggravated assault, robbery, burglary, entering a building with intent to commit a crime therein, and kidnapping.” At the trial in this case, the Commonwealth, in order to prove the firearm’s charge, presented evidence that appellant had been convicted on a charge of burglary in 1974. Appellant presents two arguments in support of his claim that the evidence of his prior burglary conviction was erroneously admitted.

First, appellant argues that his prior conviction should not have been mentioned before the jury in any way whatsoever. We disagree. Evidence of a prior conviction of a crime of violence is both proper and necessary when a defendant is tried on charges stemming from an alleged violation of § 6105. This is true even when the § 6105 charge is tried jointly with charges of the commission of other crimes. Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), affirmed, 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Lowry, 260 Pa.Super. 454, 394 A.2d 1015 (1978). Indeed, in his opinion for this Court in Stanley, Judge Price specifically stated that “the crime charged in the instant case required the introduction into evidence of the exact nature of the prior crime.” 265 Pa.Super. at 208, 401 A.2d at 1173. Furthermore, unless a severance of the charges is granted, Commonwealth v. Carroll, 275 Pa.Super. 241, 418 A.2d 702 (1980), the Commonwealth must prosecute all offenses arising from the same criminal episode at the same time. Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974); 18 Pa.C.S.A. § 110(l)(ii). In this case, there was no motion for a severance of the charges and appellant alleges no grounds upon which the trial court should have intruded and granted a severance sua sponte. Therefore, there was no error in presenting the evidence that appellant had previously been convicted of burglary.

Appellant also argues, however, that even if the fact of appellant’s conviction was properly introduced, “greater care should have been taken to ameliorate its possible influence on the jury towards the appellant by a limitation of the amount of detail that came into evidence.” Brief for Appellant at 12. Appellant argues that the details concerning the prior offense admitted into evidence at his trial show more than the simple fact of his earlier conviction, thereby causing the jury to be unfairly prejudiced against him. Again we are constrained to disagree.

Only two witnesses testified for the Commonwealth concerning appellant’s earlier conviction. The first witness was a Deputy Court Clerk in the Court of Common Pleas, Jean McCollum, who testified from records produced pursuant to a subpoena duces tecum. She stated that a person named “Rickey Payne” was arrested on February 12, 1974, at 1310 Wallace Street, that “Payne” later pleaded guilty to the charge of burglary before the Honorable James R. Cavanaugh [now a member of this Court] who placed appellant on three years probation. The second witness was Officer Earl Falaice of the Philadelphia Police. His testimony on this point is as follows:

Q [By the Assistant District Attorney]: Officer [Falaice], Fd like to direct your attention to February the 12th of 1974. On that date were you a Philadelphia police officer?
A [By Officer Falaice]: Yes, I was.
Q: And do you recall whether or not on that date you made any arrests?
A: Yes, I did.
Q: Is the person that you arrested on that date in court here today?
A: Yes, he is.
Q: Would you point him out, please. [Sic.]
A: The gentleman with the white sweater, blue collar. [Q]: For the record, Your Honor, indicating the defendant, Mr. Vargas.
THE COURT: Very well.
Q: Now, officer, where was it that you arrested Mr. Falaice [sic]?
[Defense Counsel]: Objection, Sir.
THE COURT: Not Mr. Falaice.
Q: I’m sorry, where was it that you arrested this defendant?
[Defense Counsel]: . Objection.
THE COURT: Overruled.
A: Linton’s Commissary at 1310 Wallace Street.
Q: Where at that location was this defendant when you arrested him?
[Defense Counsel]: Objection.
THE COURT: Overruled.
A: He was in a storage bin inside the commissary there.
Q: Officer, as a result of that arrest, are you aware of what charges this defendant was charged with?
[Defense Counsel]: Objection.
THE COURT: Overruled.
A: He was charged with burglary, criminal trespassing and he was convicted of burglary.
[Q]: Thank you, officer, no further questions.
BY THE COURT:
Q: What name did the person you arrested on that date use?
A: The defendant used the name of Rickey Payne.
Q: And then you were the officer that placed the charges against him?
A: Yes, Rickey Payne, I did, the gentleman sitting over there.

This testimony is highly relevant, material and even necessary to establish an element of the offense charged, i.e. appellant’s identity as a “former convict” under 18 Pa.C. S.A. § 6105. Appellant was arrested, charged, tried and sentenced in this case as John Vargas. Appellant’s use of a different name in 1974 required that his identification be given more attention than in the typical § 6105 case. As is apparent from the quoted testimony, the details about which Officer Falaice testified concerned only the administrative process by which the person who identified himself in 1974 as “Rickey Payne” was arrested, charged with and convicted of a crime of violence (burglary). In order to establish that “Rickey Payne” and the person on trial as “John Vargas,” were the same person, the officer testified that the individual he arrested in 1974 was the same individual on trial in the courtroom in 1980. In the absence of any portion of this testimony, appellant may well have attacked his § 6105 conviction on the ground of insufficient evidence because he had not been properly identified as the Ricky Payne named in the records of the prior conviction. Until Officer Falaice testified as he did, the records produced by the court clerk bearing the name “Payne” were meaningless. The officer’s testimony established a vital link between the record of the 1974 conviction and the appellant by showing that it was, in fact, “Vargas” who was arrested in 1974 and pleaded guilty while identifying himself as “Payne.”

Nor is this evidence “inflammatory”. Other than identifying appellant, Officer Falaice mentioned only that (1) appellant was in a storage bin, (2) he arrested appellant, and (3) he lodged charges against appellant. The final two items of information are critical to establishing appellant’s identity as the person convicted of a crime of violence and his relationship to the records produced by the court clerk.

The officer’s reference to appellant being in a storage bin is corroborative of the officer’s ability to remember and identify appellant. Not only is such evidence relevant to the issue of the officer’s credibility but it is so innocuous that it cannot properly be characterized as “inflammatory.” Such a reference, in and of itself, carries with it no possible character-blackening inference. The jury could not have concluded, from the fact that in 1974 appellant hid in a storage bin, that appellant was evil or bad or in any other way deserving of the opprobrium of society. Nor did this remark in any way describe appellant’s criminal acts or intimate that appellant had perpetrated any heinous misdeed. The jury could not be inflamed by such knowledge given the facts of this particular case. The jury legitimately heard evidence of appellant’s actions in this case in holding between ten and twenty people hostage while taking their money at the point of a gun. Moreover, appellant was apprehended in this case during the course of the robbery. The jury also heard, and properly so, that appellant had earlier been convicted of the crime of burglary. The jury could not be inflamed against appellant by hearing, in addition, that for a short time he had occupied a vaguely identified “storage bin”.

Likewise, Officer Falaice’s testimony could not cause appellant to be unfairly or unduly prejudiced. As explained above, the officer’s testimony is not inflammatory; consequently, the jury could not be prejudiced against appellant in that manner. Additionally, the trial court took adequate precautions against any possible accrual of prejudice by twice giving careful instructions, once before the testimony was elicited and again before the jury began its deliberations, limiting the jury’s use of the officer’s testimony to only the firearms charge. See Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978); Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977); Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981). Appellant has failed to specify any other manner in which this evidence was prejudicial.

For the foregoing reasons, the judgments of sentence are affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

Because the lower court’s admission of the details of appellant’s prior conviction was prejudicial and totally unnecessary, I dissent. “As a general rule, evidence that a defendant has committed another crime wholly independent and unconnected with that for which he is on trial is irrelevant and inadmissible except under special circumstances.” Commonwealth v. Martin, 479 Pa. 63, 68, 387 A.2d 835, 838 (1978).

The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty and thus effectually to strip him of the presumption of innocence.

Commonwealth v. Trowery, 211 Pa.Superior Ct. 171, 173-74, 235 A.2d 171, 172 (1967). Although the Commonwealth was required to produce evidence of the fact of appellant’s prior conviction to prove his violation of § 6105 of the Uniform Firearms Act, I find that the Commonwealth’s proof should have been limited to the certification of appellant’s conviction by court personnel and the identification of appellant by the arresting officer. The details of appellant’s prior crime, including his hiding in a storage bin, and that his subsequent arrest was for burglary and criminal trespass, were wholly irrelevant to the required proof, serving only to prejudice the jury and impede appellant’s taking the stand. Accordingly, I would reverse and remand for a new trial.

      . 18 Pa.C.S.A. § 6105.

      . The Commonwealth need not in situations such as the one before us place the evidence of appellant’s prior conviction before the jury by means of a stipulation. Both this court and the Supreme Court have so ruled. Commonwealth v. Stanley, 265 Pa.Super. 194, 207 n. 14, 401 A.2d 1166, 1172-1173 n. 14 (1979), affirmed, 498 Pa. 326, 336, 446 A.2d 583, 588 (1982).