author: MQNTEMURO, Judge:

text:
    557 A.2d 1
    Sammie WALKER and Valerie Walker, Appellants, v. GENERAL MOTORS CORPORATION, Kutner Buick, Inc., and Jules Kutner Enterprises, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1988.
    Filed March 10, 1989.
    Reargument Denied April 28, 1989.

      George J. Badey, III, Philadelphia, for appellants.
    Francis P. Burns, III, Philadelphia, for General Motors, appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   MQNTEMURO, Judge:

This is an appeal from a judgement entered in favor of appellee after a jury found that appellant’s injuries were not caused by a defect in the braking system of the General Motors vehicle he was driving.

In May of 1982, appellant purchased a 1980 Buick Skylark from Kutner Buick, Inc. In December of 1982, while driving through Philadelphia’s Fairmount Park, he was unable to negotiate a curve, allegedly because of failure of the ear’s braking system to operate properly, and crashed head-on into a tree, sustaining serious and permanent injuries. Suit was instituted against appellees General Motors as manufacturer of the vehicle, and Kutner as seller, on a theory of strict liability. The jury found in favor of appellees, and after appellant’s post verdict motions were denied, this appeal followed.

Appellant has raised several assignments of trial error which we will address seriatim, although not in the order presented.

It is first argued that the direct testimony of appellee’s expert witness, Duane Harwick, greatly exceeded the scope of the answers he had given to appellant’s interrogatories. Specifically it is contended that during direct examination a new theory, “brake drag”, was advanced to explain the accident. Moreover, appellant claims that the trial court compounded the problem by refusing to grant a continuance to allow him to meet this hitherto unused explanation.

Appellee responds that both aspects of this issue have been waived by appellant’s failure to raise them in a timely manner. We are constrained to agree.

Our court has consistently held that

To avoid waiver, a party must make a timely objection. Rubinstein v. J.E. Kunkle Co., 244 Pa.Super. 474, 477 n. 2, 368 A.2d 819, 821 n. 2 (1976). Timeliness requires a specific objection at the proper stage in the questioning of a witness. Commonwealth v. Hughes, 268 Pa.Super. 536, 539 n. 3, 408 A.2d 1132, 1134 n. 3 (1979).

Bell v. City of Philadelphia, 341 Pa.Super. 534, 542, 491 A.2d 1386, 1390 (1985). (Emphasis supplied).

We find the principle applicable herein. Although specific objections were made to other aspects of Mr. Harwick’s testimony, the introduction of the brake drag theory met with no immediate or particular resistance. Instead, appellant’s objection, not raised until the end of direct examination, was a general one, relating to the entire substance of the expert’s testimony, and failing to mention brake drag at all. Moreover, no continuance to meet this theory was requested. Under these circumstances, appellant’s claims cannot be said to have been preserved.

Appellant’s next contention is that the police officer who investigated the accident should have been qualified as an expert, and his opinion regarding the cause of the accident admitted. As our supreme court has concluded, the opinion of an investigating officer as to the cause of a motor vehicle accident he did not witness is “grossly speculative and an invasion of the jury’s exclusive prerogative.” Brodie v. Philadelphia Transportation Company, 415 Pa. 296, 299, 203 A.2d 657, 658 (1964). The officer opined that when the brake locked on the left rear wheel of appellant’s vehicle, the car was forced in that direction, propelling it into the tree. However, the very existence of a brake malfunction and a resulting swerve were matters to be proven to the jury. While a police officer may be properly qualified as an expert where the foundation for the presentation of such expertise is laid, Lesher v. Henning, 302 Pa.Super. 508, 449 A.2d 32 (1982), here no such qualification was offered in either accident reconstruction or vehicle dynamics. Regardless of the officer’s willingness to explain the cause of the accident, no credentials were supplied to support his opinion. See Reed v. Hutchinson, 331 Pa.Super. 404, 480 A.2d 1096 (1984). Because of these omissions, the same opinion was prevented from being introduced through the testimony of appellant’s expert, whose reliance on the officer’s report was sought to be established. Clearly where evidence is inadmissible directly from its source, it is no less inadmissible indirectly through another.

Appellant’s next two issues are related to the claim that the trial court erred in failing to charge the jury in accordance with the Pennsylvania Standard Jury Instructions on strict liability.

In reviewing a trial judge’s charge, the proper test is not whether certain portions taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial.

Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985).

Appellant at no time claims that the instruction actually given on the law of strict liability was incorrect. In fact our review of the instruction as given would belie any such assertion. Rather, he insists that the court caused confusion by refusing to instruct the jury to disregard any questions of negligence after counsel had argued appellee’s due care during closing. Appellant also contends that the difficulty was exacerbated by the first jury interrogatory, which addressed, in a misleading way, the issue of substantial change.

We first note that counsel’s closing remarks referred only to the ability of appellee’s expert, the designer of the braking system, not to appellee’s negligence or otherwise in regard to its manufacturing the brakes; no due care question was raised to require neutralizing instructions. Therefore the court was appropriately unwilling to introduce a concept, hitherto absent from the case, which would have to be preceded by an explanation as to its irrelevance. Such an instruction would have been more productive of confusion than clarity. The function of instructions is to provide the jury with “appropriate direction and alternatives to guide them in their determination,” Mackowick v. Westinghouse Electric Corp., 373 Pa.Super. 434, 440, 541 A.2d 749, 752 (1988). The charge given fulfills this objective. As appellant himself points out, quoting Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975),

“Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of the plaintiff’s injuries.”

Id., 462 Pa. at 87, 337 A.2d at 898. The jury was made aware of these elements and would not have been further guided by information a priori unnecessary, and perhaps obstructive to their deliberations.

The interrogatory of which appellant complains reads as follows:

Do you find that defendant, General Motors Corp., and defendant, Kutner Buick, Inc., sold a product that was in an unsafe condition when it left General Motors Corp.’s possession?

Appellant argues that this question reintroduces the issue of substantial change, which had already been resolved by means of a stipulation, causing (more) unavoidable confusion and prejudice to his case. However, the trial court twice specifically instructed the jury, to whom the stipulation had already been read, that the parties agreed there was no substantial change in the brakes of the car from the time it had left appellee’s factory until the accident occurred. Under these circumstances, we see no grounds for relief.

Error is also assigned to the trial court’s action in first sustaining an objection and then offering a curative instruction after appellee took exception to a remark made by appellant’s counsel during closing. It is argued that this sequence of events reflected badly on counsel’s credibility, and usurped the jury’s function of recollecting the evidence.

The exchange occurred after appellant’s counsel recalled a promise made by appellee’s counsel in his opening statement to the effect that the investigating officer would testify to the speed of appellant’s vehicle upon impact. Because of appellant’s successful objection to this evidence, it was not produced at trial. Nonetheless, appellant insists that the jury should have been left to decide whether appellee had met its burden of fulfilling this promise, even though appellant had assured appellee’s inability to do so. As the trial court points out, the net result of the occurrence is that the jury was reminded that the issue of speed was not before them. We find the court’s action to have been entirely proper.

Appellant’s final argument is that the trial court erred in admitting a statement he made to the investigating police officer in the emergency room of the hospital shortly after the accident. The basis for the objection is 42 Pa.C. S.A. § 7101 which reads, in pertinent part, as follows:

Section 7101. Settlements and other agreements with hospitalized persons
(a) General rule.—
(1) No person whose interest is or may become adverse to a person injured who is confined to a hospital or sanitarium as a patient shall, within 15 days after the date of the occurrence causing the injury to such patient:
(i) Negotiate or attempt to negotiate a settlement with such patient.
(ii) Obtain or attempt to obtain a general release of liability from such patient.
(iii) Obtain or attempt to obtain any statement, either written or oral, from such patient for use in negotiating a settlement or obtaining a release.
(2) Any settlement agreement entered into, any general release of liability or any written or oral statement made by any person who is confined in a hospital or sanitarium after he incurs a personal injury ... shall not be admissible in evidence in any matter relating to the injury and shall not be used for any purpose in any matter in connection therewith.

Appellant contends that § 7101(a)(l)(iii) is germane because the officer, upon hearing from appellant that he had probably “skidded on some wet leaves,” issued a speeding citation, in appellant’s view an indication of adverse interest under the provisions of the statute, and because the report containing this statement could have been used by an insurance carrier to force a settlement. We are unpersuaded. First, so far from being an adverse party as appellant describes him, the investigating officer is not a party at all. 3 Standard Pennsylvania Practice 2d, § 14:1 observes that:

The Judicial Code defines a “party” as a person who commences or against whom relief is sought in a matter, and the term includes counsel for such a person who is represented by counsel. In its broader aspects, the term parties includes all who are directly interested in the subject matter of the suit or some part thereof, and who have a right to make defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment rendered. More specifically, parties to an action are those who are named as such in the record and are properly served with process or enter an appeárance or are brought into the action in some other fashion.

Under this definition, a police officer’s issuance of a traffic citation does not constitute proof of an interest, adverse or otherwise, since no advantage, no gain or loss, accrues to the officer from his action, and appellant does not supply us with authority to the contrary. Moreover, the possibility that the officer’s report might be used by an insurance company does not bring appellant’s statement within the ambit of the statute which clearly specifies that the statement must be taken “for use” in reaching settlement or release.

§ 7101(a)(2) is similarly inapplicable to the statement. The purpose of the statute is to prevent the exploitation of an injured person’s weakened condition by a potentially adverse party in future litigation. As both the title of the section and the language of the provision indicate, the statute has to do with settlements, releases, and other agreements in contemplation of legal action. Appellant’s statement was not made in the context of such action, or to a person able to become involved as a party to such action.

While it might be argued that the phrase “or other statement written or oral” refers without limitation to appellant’s utterance, it must be read in pari materia with the remaining portions of the act. Such a reading leads to the conclusion that the failure to include language similar to that of § 7101(a)(1)(iii), e.g., “for use in negotiating a settlement or obtaining a release,” is merely legislative oversight, the intention being to prevent a detriment to an injured person through rapacious actions by, e.g., insurance adjusters. Therefore, the trial court’s refusal to exclude appellant’s statement does not constitute error.

Order affirmed.

      . The officer was not available for trial. The opinion in question was redacted from his deposed testimony which was then read, after various other deletions, into the record.

      . 1 Pa.C.S.A. § 1924. Construction of titles, preambles, provisos, exceptions and headings
      The title and preamble of a statute may be considered in the construction thereof. Provisos shall be construed to limit rather than to extend the operation of the clauses to which they refer. Exceptions expressed in a statute shall be construed to exclude all others. The headings prefixed to titles, parte, articles, chapters, sections and other divisions of a statute shall not be considered to control but may be used to aid in the construction thereof.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    557 A.2d 5
    COMMONWEALTH of Pennsylvania v. James RIVERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 21, 1988.
    Filed March 31, 1989.

      Michael J. Healey, Pittsburgh, for appellant.
    Dara A. DeCourey, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before KELLY, POPOVICH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the judgment of sentence of life imprisonment imposed February 11, 1988, following appellant’s conviction of first-degree murder for the shooting death of Melvin Hudson. Appellant, James Rivers, obtained new counsel following his trial; consequently, the issues raised on this direct appeal concern trial counsel’s ineffectiveness. A hearing on the ineffectiveness claims was held February 11, 1988, just prior to denial of post-trial and supplemental post-trial motions and imposition of sentence. We affirm.

Various people in Stormy’s Cafe on the evening of September 26, 1986, witnessed one or more of the following events: appellant arguing with Melvin Hudson; appellant leaving the bar; appellant returning to the bar with a rifle; appellant summoning Hudson to the street; and appellant then shooting Hudson with the rifle.

On the evening of the murder, appellant met his long-time friend Richard Alston at Stormy’s Cafe, which is located near appellant’s home in Rankin, Pennsylvania. Together they visited appellant’s girl friend at her apartment. While there, appellant displayed a .22 caliber rifle, loaded it, and stated that he was angry with Melvin Hudson and that “he could get him anytime he felt like it.” Notes of Testimony (“N.T.”), 3/16-18/86, at 36. Later, appellant returned to Stormy’s and shot Hudson. Appellant was arrested twenty minutes after shooting Hudson. At trial, appellant’s defense was that he was provoked and was operating under the influence of alcohol and drugs, in an attempt to reduce the degree of murder.

Appellant’s first allegation on appeal is that trial counsel was ineffective for “frustrating” his desire to testify at trial.

In reviewing appellant’s claims of trial counsel’s ineffectiveness, we are guided by a well-established standard, recently repeated by the supreme court in Commonwealth v. Hentosh, 520 Pa. 325, 333-334, 554 A.2d 20, 24 (1989):

Approaching our task of determining whether counsel’s assistance was effective we initially presume that it was. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Then, in analyzing a defendant’s claim, we examine whether the claimant’s allegations are possessed of arguable merit. Pierce, supra; Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Maroney, supra. We next determine whether of the alternatives available to counsel in presenting the defense those chosen were possessed of a reasonable basis in effecting his client’s interests. Id.; Common wealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983). Assuming positive resolution of both inquiries above, we require finally that the claimant demonstrate how the asserted ineffectiveness prejudiced his cause. Pierce, supra; Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. denied, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984).
In conducting this analysis it is important to bear in mind that allegations of the deprivation of the right to effective representation of counsel are not self-sustaining. The burden of proof of the allegations remains with the claimant, their accuracy still to be established by his submission of relevant proofs. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976); Maroney, supra.

520 Pa. at 333-334, 554 A.2d at 24.

We commented on the issue of trial counsel’s ineffectiveness in the context of a defendant’s failure to testify:

The decision whether to testify in one’s own behalf is ultimately to be made by the accused after full consultation with counsel.... In order to support a claim that counsel was ineffective for not “putting” the appellant on the witness stand, the appellant must demonstrate either that (1) counsel interfered with his client’s freedom to testify, or (2) he gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf.

Commonwealth v. Fowler, 362 Pa.Super. 81, 87, 523 A.2d 784, 787 (1987) (citations omitted).

The record does not establish appellant’s contention that trial counsel prevented him from testifying. Counsel testified that appellant never expressed a desire to testify, but accepted counsel’s decision that it was in appellant’s best interest not to testify. N.T., 2/11/88, at 54. We find no basis upon which to disagree with the trial court's determination that counsel was the credible witness in this respect. See Commonwealth v. Madison, 501 Pa. 485, 462 A.2d 228 (1983) (appellate courts are to accord great weight to trial court’s findings as to a witness’s credibility at a post-conviction hearing); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977) (findings of post-conviction hearing court that are supported by record will not be disturbed on appeal).

Next, the record belies appellant’s assertion that the advice not to testify was unreasonable. Appellant presents a two-prong attack on the advice. First, he states that he should have testified about his version of the events. His version is that he did not have a gun, Hudson followed him as he left the bar, Hudson “grabbed” a rifle, and the rifle discharged as the two men scuffled. Since the testimony of numerous, disinterested witnesses contradicts this testimony, counsel was not unreasonable in advising appellant not to testify. Counsel testified that this version of events, coupled with appellant’s demeanor, conveyed a lack of remorse that would prejudice appellant’s defense. We do not view this conclusion as unreasonable.

Second, appellant suggests that counsel was unreasonable in failing to advise him to testify that he knew of the victim’s violent disposition and that he and the victim had argued frequently in the past. Assuming, arguendo, counsel should have advised him to testify about these matters, we conclude that this testimony would not have aided in his defense. The testimony, as discussed in more detail later, is only relevant to a self-defense theory, which was fruitless to pursue in light of the clear testimony of numerous witnesses.

Further, the proffered testimony merely establishes further motive for appellant’s calculated actions in obtaining a rifle and returning to the bar to shoot the victim. We concur that counsel was not unreasonable in believing that appellant’s testimony, which would have advanced his actions as defensible, may have prejudiced the jury by making him appear remorseless and as not operating in a diminished capacity and in an uncontrollable rage at the time of the murder.

We also conclude that counsel’s decision not to present Cynthia Carter and Mark Grant as witnesses did not constitute ineffective trial stewardship. In determining whether trial counsel was ineffective in failing to present a particular witness, we are guided by the following standard:

To obtain relief on this claim, appellant is required to establish that: 1) the witness existed; 2) the witness was available; 3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; 4) the witness was prepared to cooperate and testify for appellant at trial; and 5) the absence of the testimony prejudiced appellant so as to deny him a fair trial.

Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). Further, in the absence of proof that the testimony of the witness would have aided in the defense, a defendant has not met his burden of proving that trial counsel was ineffective. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989).

Here, trial counsel petitioned the trial court for a private investigator to assist in trial preparation by interviewing potential witnesses. That investigation revealed that Cynthia Carter and Mark Grant were present at the location of the murder, but neither had witnessed the shooting. At the ineffectiveness hearing, counsel testified that Cynthia Carter would have testified only that the victim had many enemies. Counsel believed that such testimony would not have been admissible at trial. The interview with Mark Grant revealed that although Grant saw appellant and Hudson drinking together, he did not see the argument, the weapon or the two men leave. Therefore, counsel testified that he did not feel Grant would add anything to the defense. We agree. It is clear that nothing in the proposed testimony of these witnesses would have aided in appellant’s defense of provocation. Consequently, appellant has failed to meet his burden of demonstrating how the omitted testimony would have positively aided in his defense, and his claim that counsel was ineffective must fail. Commonwealth v. Hentosh, id.

Appellant’s next assignments of error concern the trial court’s rulings on evidentiary matters. Specifically, he asserts that the trial court erred in: (1) limiting evidence about arguments between himself and Hudson to those occurring on the night of the murder; (2) sustaining the Commonwealth’s objection to questions about whether Hudson got argumentative when he was drinking; and (3) sustaining the Commonwealth’s objection to a question asked of witness Kenny Posten concerning whether Hudson had beaten appellant earlier that evening.

Essentially, appellant argues on appeal that the first two of the trial court’s rulings prevented him from demonstrating his knowledge of Hudson’s violent propensities, which he claims was relevant to Hudson’s character and to appellant’s state of mind towards Hudson on the night of the shooting.

It is axiomatic that the admissibility of evidence is a matter left to the sound discretion of the trial court, and an appellate court may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Osborn, 364 Pa.Super. 505, 528 A.2d 623 (1987). In cross-examining, counsel may explore the potential bias or interest of a witness, but the scope of cross-examination lies within the sound discretion of the trial court, and the trial court will not be reversed absent palpable error. Commonwealth v. Ross, 345 Pa.Super. 571, 498 A.2d 972 (1985).

The first of the alleged errors involves the following exchange concerning the testimony of Commonwealth witness William Tinsley:

Mr. Foglia [defense counsel]: Were you ever present when Melvin Hudson was drinking?
A Yeah, we used to drink together.
Q How many arguments did you get in with him?
Ms. Necessary [Assistant District Attorney]: Objection, Your Honor, irrelevant.
The Court: Sustained.

N.T., 3/16-18/86, at 77-78.

In support of Ms contention that this restriction of interrogation requires a new trial, appellant relies upon Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), where the supreme court held that a homicide victim’s prior convictions involving aggression may be introduced to either corroborate a defendant’s knowledge of the victim’s violent character to demonstrate that the defendant reasonably believed that Ms life was in danger or to establish the violent propensities of the victim to prove that the victim was the aggressor. Thus, appellant’s claim is that, under Amos, he was permitted to question Tinsley concerning Hudson’s prior violent acts. We disagree.

Amos and its progeny stand for the proposition that character evidence of this type is admissible to show that the defendant acted in self-defense. See, e.g., Commonwealth v. Beck, 485 Pa. 475, 402 A.2d 1371 (1979); Commonwealth v. Ignatavich, 333 Pa.Super. 617, 482 A.2d 1044 (1984).

Here, however, appellant did not and could not attempt to establish a claim of self-defense. Witnesses establish that the two men argued, and appellant left to obtain a rifle and returned to call the victim outside to shoot Mm. His defense was that he acted in the heat of passion and under serious provocation, in an attempt to reduce the degree of murder. The test for provocation is whether a reasonable man, confronted with the same series of events, would become impassioned to the extent that his mind would be incapable of cool reflection. Commonwealth v. Voytko, 349 Pa.Super. 320, 508 A.2d 20 (1986). If sufficient provocation exists, the fact finder must also determine whether the defendant actually acted in the heat of passion when he committed the homicide and thus whether the provocation led directly to the killing or whether there was a sufficient “cooling” period so that a reasonable man would have regained Ms capacity to reflect. Commonwealth v. Galloway, 336 Pa.Super. 225, 485 A.2d 776 (1984).

The elements of a provocation defense are different than those of self-defense. The purpose for the introduction of character testimony under Amos and its progeny (i.e., to show either that the defendant reasonably believed that his life was endangered or that the victim was the aggressor) are applicable to a claim of self-defense, but irrelevant to a defense of provocation. In a provocation defense, the actions of the victim establishing provocation are relevant. Those are the victim’s actions on the night in question because the provocation must lead directly to the killing. Accordingly, testimony regarding prior violence between the victim and a witness, in this case William Tinsley, was properly excluded since appellant did not defend on the basis of self-defense. See Commonwealth v. Harris, 275 Pa.Super. 361, 418 A.2d 763 (1980) (victim’s prior convictions for robbery and aggravated assault were properly excluded from evidence in homicide prosecution, since violent propensities of victim were irrelevant as defendant did not attempt to prove that he acted in self-defense). We find no abuse of discretion in the trial court’s ruling.

Similarly, appellant asserts that the trial court erroneously sustained an objection to defense counsel’s questioning of Vivian Mitchell, Hudson’s girlfriend, about the victim’s argumentative propensities when drunk. This testimony was not relevant for the same reason. (We also note that Hudson’s argumentativeness on the night in question was presented to the jury.)

In his final contention regarding the evidentiary rulings, appellant suggests that the trial court erred in sustaining a Commonwealth objection to defense questioning of Kenny Posten as to whether Hudson had beaten appellant earlier in the evening. However, according to the sidebar offer, Posten’s knowledge of the subject matter was not based on personal observation, but rather on what the victim had told him. Thus, the court found the proffered testimony was inadmissible hearsay. We agree. Commonwealth v. Cohen, 371 Pa.Super. 558, 538 A.2d 582 (1988) (testimony by third persons as to extrajudicial utterances made by another, when offered to prove truth of matter contained therein, constitutes hearsay evidence and is inadmissible at trial); accord Hreha v. Benscoter, 321 Pa.Super. 556, 554 A.2d 525 (1989).

Since the three evidentiary rulings at issue were proper, trial counsel was not ineffective for failing to pursue them. Commonwealth v. Blagman, 350 Pa.Super. 367, 504 A.2d 883 (1986) (counsel not ineffective for failing to take baseless action).

Finally, Rivers asserts that the evidence was insufficient to convict him of first-degree murder. In support of this argument, he points to the following factors: (1) the victim had argued with both appellant and Ken Posten on the night of the killing; (2) the victim was intoxicated; (3) it is “simply stretching credibility” to believe that the victim would have followed appellant out of the bar and continued the argument if appellant had been carrying a rifle; (4) the testimony of several Commonwealth witnesses that the victim was standing above appellant when he was shot was contradicted by scientific testimony that the bullet followed a downward path. This argument is meritless.

Our standard for reviewing the sufficiency of the evidence is whether:

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence. Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Carbone, 375 Pa.Super. 261, 264, 544 A.2d 462, 463 (1988).

A review of the facts discussed supra establishes that there was sufficient basis for the verdict. Appellant’s arguments present the evidence he produced in the light most favorable to him. That is not the test when the Commonwealth is the verdict winner; thus we reject his challenge to the sufficiency of the evidence.

Judgment of sentence affirmed.


author:
PER CURIAM: CIRILLO, President Judge, POPOVICH, Judge,
      CAVANAUGH, Judge,

text:
    557 A.2d 11
    Theresa KING v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed April 5, 1989.

      Mark A. Corchin, Philadelphia, for appellant.
    Joan Saltzman, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH, and JOHNSON, JJ.

       McEwen, J., did not participate in the consideration of or decision upon this appeal.

   PER CURIAM:

This appeal of the Southeastern Pennsylvania Transportation Authority, defendant in a personal injury action brought by plaintiff/appellee Theresa King, is from the judgment entered on “delay damages” awarded to appellee pursuant to Pa.R.C.P. 238. The sole issue presented for our review is whether the trial court erred in awarding “delay damages” to appellee after having found that the delay encountered in litigating the case was not the fault of either party. For the reasons set forth below, we conclude that the trial court did not err in doing so, and we affirm the judgment entered on the award.

The events giving rise to this appeal began on February 3. 1982, when appellee was bumped by a passimeter as she passed through a subway turnstile. Although the extent of her injuries was not immediately known, appellee was unable to work for six of the following ten months. Appellee instituted the underlying action against appellant on December 14, 1982. On July 7, 1984, appellee was diagnosed as suffering from a herniated disc. She ceased working completely in January, 1985, and underwent a lumbar laminectomy on July 17, 1986.

Appellee’s action was first listed for trial in January, 1987. Appellee subsequently requested a continuance, which was not contested by appellant. On February 11, 1987, appellee made a demand of $200,000 to settle the action. On March 6, 1987, appellant made a counter-offer of $45,000. Appellee rejected the counter-offer on March 17, 1987, and trial commenced the same day. On March 23, 1987, the jury returned a verdict in favor of appellee in the amount of $200,000. However, the jury also found appellee to have been 49% causally negligent, which resulted in a reduction of the verdict to $102,000. Judgment on the verdict was entered and satisfied.

In the meantime appellee filed a petition for “delay damages” pursuant to Rule 238. The trial court determined that the delay in the case was the result of the backlog of cases in the Philadelphia Court of Common Pleas, and was not attributable to either party. In addition, the court found that there was no manifest bad faith on the part of appellant in failing to make a more substantial settlement offer prior to trial. Nevertheless, after analyzing our Supreme Court’s opinion in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the court awarded appellee “delay damages” in the amount of $42,160. The court reasoned that

when both parties are blameless it would be unreasonable and unjust to deny delay damages. Fundamental fairness would require .. .that the plaintiffs receive interest on what is essentially their money for the period that it is held by the defendants who, of course, have had the use of that money.

Trial Court Opinion at 6. Awarding “delay damages” under such circumstances does not penalize defendants, the court explained, because they “had an opportunity to protect themselves from exposure to delay damages by making a reasonable offer of settlement in good faith and in a timely fashion” (Trial Court Opinion at 6). To interpret Craig as holding that “delay damages” can be assessed against a defendant only if that defendant has actively delayed the litigation would, in the trial court’s view, “emasculate Rule 238” (Trial Court Opinion at 7). Accordingly, the trial court concluded that appellee was entitled to “delay damages.” Judgment was entered on the award of “delay damages,” and appellant’s timely appeal is now before us.

Appellant’s sole argument on appeal is that, given the trial court’s findings that the delay was not attributable to either party and that appellant was not guilty of manifest bad faith in failing to make a more substantial settlement offer, the court erred in awarding “delay damages” to appellee. Central to appellant’s argument is the assumption that the trial court erroneously interpreted the Supreme Court’s decision in Craig.

However, subsequent to the argument of the present appeal before this Court en banc, the Supreme Court rescinded then-existing Rule 238 and promulgated, in its stead, a new Rule 238. This change, according to the Explanatory Comment to the new rule, “revises Rule 238 in light of the Craig decision.” Subsection (f) of the new rule provides for the rule’s application to “actions pending on or after the effective date of this rule [November 7, 1988] in which damages for delay have not been determined.” In the cases of Staats v. Noll, 381 Pa.Super. 162, 553 A.2d 85 (1989), and Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989), this Court en banc has determined that new Rule 238 is applicable, in cases pending on appeal on the date the new rule was adopted and made effective, to the resolution of issues properly preserved and presented by the appellant. Therefore, in deciding the issue raised by appellant in this case, we will apply those portions of new Rule 238 that are relevant and material to the resolution of that issue.

Turning to the new rule, we learn from subsection (b) that the rule’s drafters specified two, and only two, periods of time to be excluded from the calculation of delay damages: “(1) any periods of time after which the defendant has made a written offer of settlement, the offer is continued in effect for at least ninety days or until the commencement of trial, whichever first occurs, the offer is rejected by the plaintiff, and the plaintiff does not recover more than 125 percent of the offer; and (2) any periods of time during which the plaintiff caused delay of the trial.” Miller v. Wise Business Forms, 381 Pa.Super. at 241, 553 A.2d at 446. The drafters of the new rule “have not allowed for the exclusion of periods of delay not caused by either party.” Id., 381 Pa.Superior Ct. at 241, 553 A.2d at 446; (emphasis added). In effect, Rule 238 provides for the award, in appropriate cases, of prejudgment interest. See Dale v. The Baltimore & Ohio Railroad Company, 520 Pa. 96, 107, 552 A.2d 1037, 1042 (1989) (“Rule 238 prejudgment interest damages” may not be awarded in actions brought in Pennsylvania courts pursuant to the Federal Employer’s Liability Act).

In Staats v. Noll, supra, and Miller v. Wise Business Forms, supra, we applied new Rule 238 to the following situation: the defendant had not made an adequate settlement offer, the plaintiff had not caused delay of the trial, the plaintiff was not awarded “delay damages,” and the plaintiff appealed, contending that the denial of “delay damages” under such circumstances was improper. As the preceding analysis of new Rule 238 indicates, the plaintiffs’ claim for relief in these cases was meritorious. “[WJhere the defendant has not made an adequate settlement offer pursuant to Rule 238(b)(1) and the plaintiff has not caused delay of the trial as noted in Rule 238(b)(2),” Miller v. Wise Business Forms, 381 Pa.Super. at 242, 553 A.2d at 446, there is no basis on which to deny the plaintiff an award of “delay damages.” Thus, in order to afford relief to the plaintiffs, it was necessary to remand both cases to the trial courts for the calculation of “delay damages” in accordance with new Rule 288.

The appeal now before us presents a different factual scenario: the plaintiff has been awarded “delay damages” and the defendant has appealed, contending that the award of “delay damages” was improper. Appellant does not contend that it made an adequate settlement offer, nor does it challenge the trial court’s finding that the delay was not attributable to either party. Appellant’s sole argument is that because it was not responsible for any delay, it should not be made to pay “delay damages.” As the preceding discussion makes clear, however, this argument does not entitle appellant to relief under new Rule 288. We conclude that where, as here, the defendant/appellant failed to make an adequate settlement offer and the plaintiff/appellee did not cause delay, the trial court did not err in awarding “delay damages” to plaintiff/appellee.

As we have determined that appellant has no claim for relief under new Rule 238, it is not necessary, as it was in Staats v. Noll and Miller v. Wise Business Forms, to remand the case to the trial court. As there is no relief to be afforded appellant, the only result of such a remand would be the recalculation of appellee’s “delay damages” in accordance with the new rule. Plaintiff/appellee has not appealed the judgment entered on the award of delay damages, however, and she has not challenged the amount of the award in this appeal, and in fact could not do so, Arcidiacono v. Timeless Towns of the Americas, Inc., 363 Pa.Super. 528, 531 n. 2, 526 A.2d 804, 806 n. 2 (1987).

We hold that where, as here, the plaintiff, who has been awarded “delay damages,” has requested no relief from this Court, and the defendant, who has sought relief, is entitled to none under new Rule 238, remand to the trial court for the recalculation of “delay damages” (prejudgment interest) is unnecessary. To the extent that this Court’s decision in Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988), requires otherwise, the decision is disapproved and overruled. Accordingly, we affirm the judgment entered on the award of “delay damages.”

Judgment affirmed.

CIRILLO, President Judge, files a concurring opinion.

CAVANAUGH, J., files a dissenting opinion in which OLSZEWSKI, J., joins.

POPOVICH, J., files a dissenting opinion.

CIRILLO, President Judge,

concurring:

I concur in the result reached by the majority opinion. I write separately to reiterate my position on the application of new rule 238 in cases presented to us on appeal. As I stated in my dissenting opinion in Ceresini v. Valley View Trailer Park, Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc) (Cirillo, P.J., dissenting), and again in Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989) (en banc) (Cirillo, P.J., dissenting), although I believe that the promulgation of new rule 238 must influence our interpretation and application of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), I would not apply new rule 238 itself in any case in which the trial court has already made a determination of delay damages.

POPOVICH, Judge,

dissenting:

I dissent consistent with my Dissenting Opinion by Popovich, J. in Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc).

CAVANAUGH, Judge,

dissenting:

I dissent on the basis of our en banc opinion per curiam in Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988) which held that new Rule 238 “applies to all actions pending at the trial level, or on appeal, in which the issue of delay damages has been preserved and not finally determined, as in this case.”

The majority opinion now holds that where the defendant against whom delay damages have been awarded has appealed, and the plaintiff having received delay damages does not appeal, then Ceresini should not be followed and there should be no remand for the determination of delay damages in accordance with new Rule 238.

The majority states that the plaintiff did not appeal from the award of delay damages and is therefore not entitled to relief under Arcidiacono v. Timeless Towns of the Americas, Inc., 368 Pa.Super. 528, n. 2, 526 A.2d 804, 806 n. 2 (1987). That case is inapplicable as it held that the appellee could not raise the issue of contributory negligence because she had not filed a cross appeal and therefore, could not raise issues not raised by the appellant. In the case sub judice, the defendant did raise the issue of the propriety of the entry of delay damages. That was the only issue before this court. (Indeed the verdict has been paid and the consequent judgment has been satisfied.) The propriety of the award of delay damages was already on appeal and at the time there was no clear standard for the calculation of delay damages as the new rule had not been promulgated at the time the appeal was taken. The plaintiff should not be faulted for lacking prescience. Since the solitary issue on appeal is whether the trial court correctly applied Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) there is no point in asserting a cross appeal to raise precisely the same issues.

The majority opinion cites Staats v. Noll, 381 Pa.Super. 162, 553 A.2d 85 (1989) and Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 448 (1989). Both of these cases relied on Ceresini, supra, which the majority now disapproves and overrules to the extent that Ceresini v. Valley View Trailer Park, Ephrata, Inc., supra, is inconsistent with the present majority opinion. The instant case and Ceresini, supra, involved an appeal by the defendant where delay damages had been entered. The issue in both cases was whether the entry of delay damages was proper. The majority states that new Rule 238 is applicable to cases pending on appeal as of the effective date of the Rule, November 7, 1988, where the resolution of the issue of delay damages has been properly preserved and presented by the appellant, but nevertheless, reaches the anomalous result of affirming an award of delay damages based on former Rule 238. A fundamental difference exists in both rules in the calculation of the amount of delay damages, and the rules are discrete in other respects. If we are correct that the revised Rule 238 applies to cases where the issue has been preserved on appeal, then there is no reason to emasculate the rule and apply it only in part.

The majority, in effect, has ruled that delay damages were properly awarded, albeit in an incorrect amount, and fails to remand for a proper determination under new Rule 238 because the plaintiff below did not file a cross appeal on the basis of the new Rule which did not exist at the time the appeal was taken.

The majority opinion conflicts with Modrick v. B. F. Goodrich Co., 383 Pa.Super. 498, 557 A.2d 363, (1989) which involved an appeal by the defendant from the imposition of delay damages. We found the award of delay damages to have been proper but not in conformity with new Rule 238, and accordingly, remanded. The plaintiff in Modrick did not file a cross appeal, and none was required since both parties contemplated that the appeal would resolve the issue of delay damages in its entirety.

In Baker v. S. & L. Service Co., 381 Pa.Super. 637, 554 A.2d 565 (1989) the plaintiff appealed although delay damages were imposed in her favor. Neither party disputed the imposition of delay damages, although the appellant challenged the date on which the delay damages should commence running. We remanded for the assessing of delay damages under new Rule 238.

The majority result works an unfair economic hardship to plaintiffs who have not filed meaningless cross appeals. If, as should be done, the case is remanded for calculation of delay damages under the revised Rule 238 the plaintiff (who did not take this appeal) would be entitled to delay damages under the newly provided standard upon the court’s recalculation.

I would also point out that under Ceresini, and presumably the present majority, new Rule 288 applies only to those cases pending on appeal on November 7, 1988. This represents a constantly dwindling number of cases and the majority’s apparent reluctance to remand for a proper determination of delay damages seems unjustified in view of this fact.

Finally, I dissent because the matter is moot. Both parties to the dispute have moved to withdraw the appeal as they have reached an amicable resolution. As we recently noted in our en banc decision in Sonder v. Sonder, 378 Pa.Super. 474, 482, 549 A.2d 155, 159 (1988): “existence of actual controversy is essential to appellate jurisdiction and if an event occurs rendering it impossible for appellate court to grant any relief, issue is moot.”

OLSZEWSKI, J., joins.

      . In its brief appellant presents this fundamental issue as two separate questions: 1) whether the trial court erred in its interpretation of Craig; and 2) whether the trial court erred in awarding delay damages in light of its findings that the delay was not caused by either party and that appellant was not guilty of manifest bad faith in failing to make a larger settlement offer.

      . Pursuant to both Craig and subsection (c)(1) of the revised Rule 238, the trial court may, but is not required to, hold a hearing to resolve factual disputes. In the present case, the trial court apparently made its findings without the benefit of a hearing. As appellant does not challenge those findings, this matter need not detain us further.

      . To the extent that the decision in Modrick v. The B.F. Goodrich Company, 383 Pa.Super. 498, 557 A.2d 363 (1989), cited by Judge Cavanaugh in his Dissenting Opinion, is inconsistent wi|h our decision in the present case because of its reliance upon Ceresini, it is also disapproved and overruled.


author: CAVANAUGH, Judge:

text:
      557 A.2d 15
    COMMONWEALTH of Pennsylvania, Appellee, v. AL HAMILTON CONTRACTING CO., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1988.
    Filed Jan. 12, 1989.

      Alan Kirk, Clearfield, for appellant.
    Sharon Potter, Assistant District Attorney, Bellefonte, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   CAVANAUGH, Judge:

A1 Hamilton Contracting Company, Inc. brings this appeal from judgment of sentence entered after a jury convicted the corporation of violating the provisions of 30 Pa. C.S.A. § 2504(a)(2). Appellant has enumerated fifteen issues for our consideration. A review of the record does not reveal any error by the lower court, however, and we consequently affirm the judgment of sentence entered below.

Appellant was prosecuted by the Commonwealth for violation of the following statute:

§ 2504. Pollution of waters
(a) General rule. — No person, regardless of intent, shall:
(2) Allow any substance, deleterious, destructive or poisonous to fish, to be turned into or allowed to run, flow, wash or be emptied into any waters within or bordering on this Commonwealth.

Appellant, who is engaged in the business of surface mining, was convicted of allowing a substance deleterious to fish to enter an unnamed tributary of Mountain Branch in Centre County. This offense is punishable as a misdemean- or of the third degree, 30 Pa.C.S.A. § 2504(d), and appellant was ordered to pay the costs of prosecution and a $2,500.00 fine.

Appellant initially alleges that the bill of information is deficient in its use of overly broad language as to the offense charged. The lower court notes that the information used the exact language of the statute and is therefore sufficient to notify appellant of the charges against which it must defend itself.

Appellant objects to the use of the term “pollution” and the phrase “acid mine drainage” by Commonwealth witnesses as being prejudicial. However, the company has not explained how it has been harmed and we do not find the use of these terms to be inherently prejudicial.

Numerous objections are made to evidence admitted at trial and the testimony of various Commonwealth witnesses which was based on the evidence in question. Appellant objects to introduction of geological maps which it claims do not reflect contemporaneous surface mining activity in the area of the stream. Appellant also objects to the admission of electrofishing and macroinvertebrate sampling evidence on the grounds that the sampling was done at a time too remote from the date of the incident. We find no merit to these claims.

The evidence in question is not irrelevant, immaterial or prejudicial, as appellant charges. The weight of the evidence was for the factfinder to determine. Appellant chose to follow a strategy at trial in which it called no witnesses and submitted no evidence on its own behalf. Having chosen this course, appellant cannot complain that no evidence favorable to its ease was introduced.

It is charged that evidence of water quality sampling and analysis is inadmissible as hearsay because no adequate chain of custody was established for the samples. However, Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983) states that physical evidence is properly admitted where circumstances support a reasonable inference that the identity and condition of the evidence remains unimpaired despite any gap in testimony regarding chain of custody. The trial court was satisfied that the circumstances of the instant case supported such a reasonable inference, and we find no reason to question that determination.

Appellant repeatedly challenges testimony as being inadmissible because the various witnesses did not have a personal knowledge or observation of the area in which the incident occurred and because they did not personally perform the tests on which their testimony was based. An expert’s opinion may be based on tests performed by others and on information the expert gains from the testimony of other witnesses. These facts need not be gained by the expert’s personal knowledge or observations alone. These points were adequately discussed by the trial court, along with citations of authority. We find no error in the admission of testimony challenged by appellant.

The argument that the levels of aluminum found in the water samples was within the regulatory standard promulgated by the Department of Environmental Resources (DER) was considered to be irrelevant by the trial court and we agree with that assessment. Appellant cites the criteria for aluminum levels set at 25 Pa. Admin. Code § 93.7 as controlling. However, the scope of the standard, explained at 25 Pa. Admin. Code § 93.2, relates to the regulation of discharges by DER. Appellant is not charged with violation of a DER regulation but instead is convicted of a statutory violation which provides for a criminal penalty.

Appellant labels remarks made by the prosecutor in opening and closing arguments as so prejudicial that “no curative instruction can remove this taint” (Appellant’s brief p. 40) and alleges error in the court’s failure to grant a motion for mistrial. The decision of the trial court to deny a motion for mistrial will not be reversed absent a demonstration of an abuse of discretion, Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985), and that has not been demonstrated here. As partial support for this charge appellant quotes the statement of the District Attorney that he did not “know what the defense has in store for you. They may have experts of their own. No doubt they will.” We do not find these remarks to be prejudicial.

Likewise the decision of the trial court to refuse to charge the jury in the specific manner requested by a party will only be reversed if an abuse of discretion is shown. Commonwealth v. Sirbaugh, 347 Pa.Super. 154, 500 A.2d 453 (1985). The court below states that several of appellant’s points for charge are adequately reflected in the jury charge, while the remainder were rejected as not correctly reflecting the law. We find no error in the court’s determination.

The Company also claims that instructions given by the court to the jurors cautioning them to avoid media accounts of the proceedings were inadequate. We disagree with this contention and find no error committed by the trial court in this regard.

Finally, appellant alleges that the trial court erred in failing to grant its motion for a demurrer. The failure of the court below to grant a demurrer is not properly the subject of appeal. Commonwealth v. Hammock, 319 Pa. Super. 497, 466 A.2d 653 (1983).

Having fully reviewed appellant’s allegations of error, we do not find them to be of merit.

Judgment of sentence is affirmed.


author: DEL SOLE, Judge: MONTGOMERY, Judge,

text:
    557 A.2d 18
    Kathleen Gilotty CROFT, Appellant, v. P & W FOREIGN CAR SERVICE, INC., Appellee (Two Cases)
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1988.
    Filed April 6, 1989.

      Gary M. Davis, Pittsburgh, for appellant.
    Bradley S. Gelder, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal of a judgment entered against Appellee, P & W Foreign Car Service, Inc., [P & W], ordering P & W to pay counsel fees in the amount of one thousand dollars, and costs in the amount of one thousand, four hundred and forty-five dollars to Appellant.

Appellant claims that the trial court abused its discretion by failing to award counsel fees based on the time actually expended in pursuing Appellant’s claims for damages arising from her purchase of a car from P & W with a broken odometer. Appellant filed the instant suit againt P & W and a separate action against J.J. and Lawrence Gumberg, previous owners of the car. P & W then joined the Gum-bergs as co-defendants, but prior to trial agreed to their dismissal. Subsequently, the two cases were consolidated for trial.

Appellant claimed at trial that P & W breached its express warranty, and its implied warranty of merchantability pursuant to the Magnuson-Moss Warranty Act [Act]. She also claimed P & W violated the Pennsylvania Unfair Trade Practices Act, and committed fraud. Nonsuits were granted in favor of P & W on all of the theories of recovery except implied warranty of merchantability under the Act. A non-suit was also granted dismissing all claims against the Gumbergs. No appeal was taken from the grant of the non-suit in the separate action against the Gumbergs.

The jury found in favor of Appellant at trial, and awarded three thousand dollars ($3,000) in damages. Plaintiff subsequently filed a Petition for Counsel Pees requesting compensation in the amount of $7,539.00 and costs in the amount of $1,445.74 pursuant to statutory authorization for counsel fees outlined in the Magnuson-Moss Act. The Court awarded Appellant’s counsel one thousand dollars ($1,000) and full costs. This appeal followed.

The Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(2) states:

If a consumer finally prevails in any action, [brought under this Act], he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.

Appellant clearly prevailed in this action under the Magnuson-Moss Act, so her counsel submitted a petition stating that he spent eighty-nine (89) hours of time in preparation for trial, and he attached time records and itemized costs. The trial court, in awarding counsel fees of $1,000 stated,

“It appears to this Court inappropriate, in light of all of the circumstances of the case, to award counsel fees in an amount approximately 2V2 times the amount of the jury verdict and in excess of the amount claimed as damages by Plaintiff in her Complaint.”

We hold that the jury award should not serve as a cap or a ceiling on the amount of counsel fees awarded to the prevailing party’s attorney. Rather, the amount received is but one factor to be considered in determining an award of counsel fees. In the Senate Report concerning this section of the Magnuson-Moss Act it was stated, “It should be noted that an attorney’s fee is to be based upon actual time expended rather than being tied to any percentage of the recovery. This requirement is designed to make the pursuit of consumer rights involving inexpensive consumer products economically feasible.” (Sen.Rep. No. 93-151, 1st Sess. (1973) pp. 23-24). Thus, we will not tie counsel fees to Appellant’s recovery by placing such a cap on the fee award. See, Drouin v. Fleetwood Enterprises, 163 Cal.App.3d 486, 209 Cal.Rptr. 623 (1985).

However, the award of counsel fees is within the trial court’s discretion. Furthermore, the Magnuson-Moss Act mandates this discretion in its reference to “reasonable” and “appropriate” fees. The trial court refers to the factors enumerated in Estate of LaRocca, 431 Pa. 542, 246 A.2d 337 (1968), where the Pennsylvania Supreme Court discusses reasonable attorneys fees for counsel for an estate. Although, these factors were considered by the trial court, we find that the factors enumerated in 41 P.S. § 503 (concerning the award of attorneys’ fees to counsel for residential real estate owners who have prevailed in causing a judgment by confession to be stricken), are more appropriate in the instant case. Unlike the fees paid out of the estate funds to estate counsel, Id., 431 Pa. at 544, 246 A.2d 337, the entitlement to attorneys’ fees under § 503 and in actions under the Magnuson-Moss Act, is designed to make the pursuit of certain public rights economically feasible, and the amount of the award is not dependent on a fixed fund, such as a decedent’s estate. Because of these differences we find the factors considered in § 503 in awarding reasonable attorneys’ fees more appropriate than those considered in LaRocca. Gardner v. Clark, 349 Pa.Super. 297, 503 A.2d 8 (1986); Drum v. Leta, 354 Pa.Super. 448, 512 A.2d 36 (1986).

Under 41 P.S. § 503, in determining the amount of the fee, the court may consider: (1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the case; (2) The customary charges of the members of the bar for similar services; (3) The amount involved in the controversy and the benefits resulting to the client or clients from the services, and (4) The contingency or certainty of the compensation.

We agree with the trial court that it would be unfair to compensate Appellant’s attorney for time spent on a claim against one defendant as to whom Appellant suffered a non-suit. Furthermore, an effort should be made to apportion the time spent by counsel on the distinct causes of action, although this may prove difficult given that these claims are based on a common core of facts and related legal theories.

However, given that the trial court has appeared to use the jury award as a cap on the attorneys’ fees, and also that it has failed to explain how it arrived at the figure of one-thousand dollars ($1,000.00) as a reasonable fee, we reverse and remand for a hearing in accordance with this opinion on the issue of the award of reasonable attorneys’ fees for Appellant’s counsel.

MONTGOMERY, J., files a dissenting statement.

MONTGOMERY, Judge,

dissenting:

I respectfully dissent. I am of the opinion that the trial court did not abuse its discretion in awarding counsel fees in the amount that it did. Accordingly, I would affirm the judgment.

      . There were actually two appeals filed in this case. The first appeal is from a judgment following a court order granting counsel fees and costs and the second from a judgment denying Appellant’s motion for post-trial relief. Post-trial motions are not required if Appellant is not claiming any error at trial, and the only issue on appeal concerns the grant or denial of a petition for counsel fees. Therefore, the second appeal is unnecessary and is quashed. We will address the issues raised in the first appeal.

      . Although the trial court opinion states that a hearing was held on the Petition for Counsel Fees, (T.C. Opinion at 2), there is nothing in the record indicating when or if this hearing was ever held.


author: MONTEMURO, Judge:

text:
    557 A.2d 21
    Michael SCHROEDER and Wendy Schroeder, Husband and Wife, and Lauren Schroeder, A Minor, By and Through her Natural Parents, Michael and Wendy Schroeder, Appellants, v. EAR, NOSE AND THROAT ASSOCIATES OF LEHIGH VALLEY, INC., Peter E. Farrell, M.D., and Charles S. McConnel, Jr., M.D., Appellees.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1989.
    Filed April 14, 1989.

      Edward J. Carreiro, Montgomery, for appellants.
    Marla J. Melman, Allentown, for appellees.
    Before WIEAND, MONTEMURO and HOFFMAN, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order granting in part and denying in part appellees’ Preliminary Objections in a medical malpractice action.

On June 8, 1984, as the result of a cough which had persisted since the previous February despite treatment by appellees, a chest x-ray was taken of appellant Wendy Schroeder. Although the x-ray revealed the presence of adenopathy, an enlargement of the lymph glands commonly associated with Hodgkin’s disease, appellant was not informed of this diagnosis nor that a C-T scan was recommended by the radiologist. Shortly after the x-ray was taken, appellant became pregnant with her second child. Because of appellant’s pregnancy, a C-T scan suggested in July by appellees to determine the cause of the cough was cancelled, still without explanation to appellant of the results of the June radiograph. In September, while under the care of an oncologist, appellant was diagnosed as suffering from stage II-B Hodgkin’s disease, and underwent extensive surgical and other treatment, during the course of which appellant’s pregnancy was terminated.

In August, 1986 the instant suit was filed, alleging that appellees were negligent in their care and treatment of appellant, arid in their failure to inform her of the results of the x-ray. The complaint also alleged breach of warranty, and loss of spousal consortium by appellant’s husband. On behalf of appellant’s minor child, Lauren, a claim was entered for loss of parental consortium, and on behalf of appellant, her husband and Lauren, recovery was sought for loss of the “services, society and companionship” of the aborted fetus. In response to appellees’ preliminary objections, all the counts of the complaint which concerned Lauren’s loss of consortium claims were stricken, as was the claim for damages for the loss of the child in útero. This appeal followed.

Because the order appealed from dismisses only some of a multi-count complaint, we must first determine whether the order is appealable, a question of jurisdiction which may be raised sua sponte. Danko Development Corp. v. Econocast Corp., 369 Pa.Super. 120, 534 A.2d 1108 (1987).

The general rule is that orders which dispose of a complaint only partially are interlocutory and not appealable. Praisner v. Stocker, 318 Pa.Super. 332, 459 A.2d 1255 (1983).

However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is “out of court” with respect thereto. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action.

Danko, supra, 369 Pa.Super. at 126, 534 A.2d at 1113 (emphasis added), quoting Cloverleaf Development v. Horizon Financial F.A., 347 Pa.Super. 75, 81, 500 A.2d 163, 166-7 (1985) (citations omitted).

[11 Under this exception, Lauren is clearly “out of court” with respect to her claim for loss of parental consortium. The order is therefore final as to her. The next inquiry is whether the facts averred are sufficient to establish a legal cause of action. Steiner by Steiner v. Bell Telephone Co., 358 Pa.Super. 505, 517 A.2d 1348 (1986), allocatur granted, 516 Pa. 627, 582 A.2d 437 (1987). They are not. Appellant’s argument, that Lauren is entitled to recovery for injury to her mother, has been been disposed of by this court in Steiner by Steiner v. Bell Telephone Co., supra, and our Order refusing to recognize loss of parental consortium as a cause of action has been affirmed without opinion. Id., 518 Pa. 57, 540 A.2d 266 (1988). See also, Keirs v. Weber National Stores, 352 Pa.Super. 111, 507 A.2d 406 (1986), 518 Pa. 57, 540 A.2d 266 (1988). Therefore the claim on behalf of Lauren was properly dismissed.

Loss of consortium claims of a spouse are regarded as distinct rights of action. See 21 Standard Pennsylvania Practice 2d § 116:48 (1984). By analogy, therefore the claim with respect to the fetus may also be examined under the sufficiency standard. However, like the claim of appellant’s daughter, we find that it states no legal cause of action.

Any action for loss of consortium is derivative, depending for its viability upon the substantive merit of the injured party’s claims. See Boarts v. McCord, 354 Pa.Super. 96, 511 A.2d 204 (1986). Here the injured party is the fetus aborted during appellant’s treatment. Loss of filial consortium has never been legally recognized as a cause of action in this Commonwealth, and those cases involving infant deaths have never dealt squarely with the issue. See, e.g., Boarts, supra.

Appellants cite Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981), for the proposition that “since parents may recover pain and suffering for the loss of a child as an element of damage suffered because of injuries sustained to the person of the Plaintiff____ Appellants should be allowed to recover as an item of damage the society and companionship of the unborn child.” (Appellants’ Brief at 9.) However, this is a misreading of Scott, which does allow the mother compensation for pain and suffering under the No-Fault Act, but on grounds that she was injured in the accident.

The right to enter claims for loss of consortium have, consistent with the seminal case of Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914), been limited to spouses. To paraphrase this court’s conclusion in Steiner, supra:

We conclude that because there is no constitutional mandate compelling us to recognize a cause of action for loss of [filial] consortium, because there is presently no legal basis for allowing the cause of action, because there is no general or growing consensus that such a cause of action should be established, and because to allow such a cause of action is a policy determination which can most thoroughly and representatively be considered by the legislature, we do not recognize a [parent’s] cause of action for loss of a [child’s] consortium due to tortious interference of a third party.

Id., 358 Pa.Superior Ct. at 522, 517 A.2d at 1357.

Order affirmed.


author: POPOVICH, Judge:

text:
    557 A.2d 23
    Lillian RATARSKY, Appellee, v. Jack RATARSKY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1988.
    Filed April 14, 1989.

      Gerald Roth, Allentown, for appellant.
    Mark S. Sigmon, Bethlehem, for appellee.
    Before CAVANAUGH, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Lehigh County Court of Common Pleas entered pursuant to the court’s broad equitable powers in divorce cases, 23 Pa.S.A. § 401(c), directing the appellant, Jack Ratarsky, to pay the appellee, Lillian Ratarsky, 50% of the cash surrender value of the life insurance policies which were held in trust by the parties. Upon review, we find that the trial court abused its discretion and exceeded its authority. Accordingly, we vacate the order and dismiss appellee’s petition.

The record reveals the following facts: On February 7, 1986, the parties’ divorce decree was entered. In addition, a property settlement agreement was incorporated into the divorce decree by stipulation of the parties. The property settlement was finalized on February 3, 1986, following counseled negotiations which began in March of 1985.

At the heart of this dispute is the inter vivos trust created by the parties in June of 1965, which contained nine life insurance policies as well as a certificate of deposit. On March 11,1985, the appellee’s counsel asked the appellant’s counsel to inform the trustee to advise him of any withdrawal of trust assets or change in benefits, and on March 14, 1985, appellant’s counsel complied with the request. The trustee then supplied the appellee and her counsel with a copy of the trust assets. The insurance policies in question for accounting purposes were carried by the trust at a book value of $1.00 and a market value of $1.00, although their actual cash surrender values were considerably higher. Appellee’s counsel made numerous inquiries concerning the policies; however, counsel never directly inquired as to the surrender value of the policies. On December 20, 1985, the trustee, at the appellant’s request, turned over the insurance policies to the appellant in order to afford the appellant an opportunity to review the policies. The appellee and her counsel were never notified by the trustee of the appellant’s withdrawal of the policies, and the appellant never returned the policies.

Eventually, the parties reached a property settlement agreement on February 3, 1986. On February 4, 1986, the appellant notified the trustee that he was revoking the trust and was retaining possession of the insurance policies. On March 13, 1986, the trustee liquidated the trust and the husband acknowledged the receipt of the certificate of deposit proceeds in the amount of $224,906.66.

On March 17,1986, the appellee filed a motion to open the divorce decree pursuant to 23 Pa.S.A. § 602, alleging the appellant had perpetrated extrinsic fraud by concealing the cash surrender value of the insurance policies and thereby precluding a fair settlement. On August 11, 1987, the appellee, through new counsel, filed an amended motion to open which, in the alternative, requested that the court impose a constructive trust upon the marital assets in accordance with 23 Pa.S.A. § 403.

A hearing on the motion was held on September 4, 1987, and the order sub judice was entered on April 27, 1988. Significantly, the court found that the appellant had not perpetrated intrinsic fraud in his negotiations. However, the lower court found that the parties had agreed that the trust, including the insurance policies, would be divided equally between them. The court therefore ruled that the appellant by not remitting to the appellee 50% of the policies’ cash value had violated the terms of the property settlement agreement. Thereafter, the court invoked its equitable powers granted in 23 Pa.S.A. § 401(c) and ordered the appellant to remit 50% of the cash surrender value of the policies to the appellee. This appeal followed.

In this appeal, we must address the interplay of Divorce Code sections § 401(c) and § 603. Initially, we recognize that the Legislature expressly granted the lower court broad equity powers in divorce proceedings pursuant to § 401(c) which provides:

(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

The procedure for exercising the court’s equitable power is explicitly provided for by the Legislature in 28 Pa.S.A. § 602. Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 241-42, 502 A.2d 185, 187 (1985). As we recently stated in Anderson v. Anderson, 375 Pa.Super. 341, 544 A.2d 501 (1988), “Section 602 sets out clear evidentiary requirements which must be met by the parties before the court may exercise its authority to open, vacate or strike a divorce decree, and the hearing court’s exercise of or refusal to exercise its authority under that section is reviewable on appeal.” Id., 375 Pa.Superior Ct. at 348, 544 A.2d at 505 (explaining the relationship of 42 Pa.C.S.A. § 5505 and 28 Pa.S.A. § 602). 23 Pa.S.A. § 602 provides:

A motion to open a decree of divorce or annulment may be made only within 80 days after entry of the decree and not thereafter. Such motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or because of a fatal defect apparent upon the face of the record, must be made within five years after entry of the final decree. Intrinsic fraud is such as relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.

Instantly, the appellee filed a motion to vacate her divorce decree pursuant to 23 Pa.S.A. § 602. The appellee filed her motion on March 18, 1986, thirty-nine days after entry of the final decree. Since she filed her motion more than thirty days after entry of the divorce decree, the appellant’s motion cannot be construed as a timely motion to open and the question of whether intrinsic fraud existed is moot, 23 Pa.S.A. § 602; Anderson, supra. Although, we note the trial court expressly found that the appellant had not committed intrinsic fraud. Clearly, the lower court did not have the authority to open the divorce decree.

The appellee alleged the appellant committed extrinsic fraud which precluded “a fair hearing or presentation of one side of the case.” She contended that the appellant’s alleged concealment of the cash surrender value of the insurance policies constituted extrinsic fraud. However, this is obviously not a case where extrinsic fraud precluded the appellee’s opportunity for a fair hearing. Even assuming arguendo that the appellant did conceal the cash surrender value, the appellant’s acts did not constitute extrinsic fraud under the Divorce Code.

In Fenstermaker, supra, we noted the distinction between extrinsic fraud and intrinsic fraud as defined by our Supreme Court in McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536, 110 A. 366, 368 (1920):

By the expression ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promise of compromise, or fraudulently keeping him in ignorance of the action. Another instance is where an attorney without authority pretends to represent a party and corruptly connives at his defeat, or where an attorney has been regularly employed and corruptly sells out his client’s interest. The fraud in such case is extrinsic or collateral to the question determined by the court. The reason for the rule is that there must be an end to litigation; and, where a party has had his day in court and knows what the issues are, he must be prepared to meet and expose perjury then and there: Pico v. Cohn, 91 Cal. 129 [25 P. 970, 27 P. 537]. Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by the judgment, unless there be a showing that the jurisdiciton of the court has been imposed upon, or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial. Bleakley v. Barclay, 75 Kansas 462 [89 P. 906].

Fenstermaker, 502 A.2d at 188, quoting McEvoy, supra, and citing related cases.

A review of the record reveals that the appellant’s actions were not tantamount to extrinsic fraud and did not prevent a fair hearing. The property settlement in question was entered into by the parties following almost one year of extensive, counseled negotiations. Appellee’s counsel contends he never became aware of the policies’ true value because opposing counsel’s intimations that a full disclosure in good faith had been made. In fact, a sufficient disclosure of the appellant’s assets was made. The appellee was informed of the exact contents of the trust fund, including the precise identity of each insurance policy which was a part of the trust. If counsel wanted to know the value of the policies, all he needed to do was go to the Bank and review them; thereafter, counsel would have had full knowledge of the policies’ cash surrender value. However, counsel never saw fit to examine the policies. Appellee’s trial counsel must remember that no matter how amiable property settlement negotiations are, they still are adversarial, and counsel has a duty to protect his client’s best interests by fully investigating the extent of the marital assets. No doubt the appellee knew of the policies existence and should have specifically inquired concerning their cash surrender value. Certainly, the appellee’s trial counsel’s performance cannot be imputed to the appellant and labeled as fraud. Accordingly, the lower court had no authority to vacate the divorce decree on the basis of extrinsic fraud. See Fenstermaker, 502 A.2d at 188-189.

The lower court sub judice, however, neither expressly opened nor vacated the decree. Instead, the lower court considered this case to be “one of not fully complying with the terms of the property settlement.” Following the hearing on the appellee’s motion to vacate, the lower court found that the parties had agreed to split the contents of the trust equally. Consequently, the court, invoking its broad equitable powers granted in 23 Pa.S.A. § 401(c), ordered the appellant to pay 50% of the insurance policies’ cash value to the appellee. Initially, we reiterate that the lower court had no authority to open or vacate divorce decree. Therefore, the lower court could not modify the precise terms of the agreement. See Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 504 A.2d 335 (1986) (emphasizing the need for finality of judgments). Rather, the lower court’s equity power only enabled the court to review the settlement agreement and enforce its terms.

With regard to the trust and insurance policies, the property settlement agreement provided:

26. Husband and wife shall retain as his or her exclusive possession all, insurance policies issued in his or her respective names.
29. The Certificate of Deposit currently held in Husband’s Trust Account with the First National Bank of Allentown which matures on March 13, 1986, together with accrued interests, shall be divided equally between the parties, and Wife thereafter shall relinquishes [sic] all right, title and or claim to said Trust Account of any portion thereof.

Paragraph 29 is precise. The parties agreed to divide equally the proceeds from the Certificate of Deposit held in the trust. Thereupon, the appellee agreed to relinquish “all right title and or claim” to the trust. Regardless of whether the insurance policies remained in the trust at the time the agreement was executed, the simple fact is that the appellee relinquished any claim she had to them. The lower court had no authority to open the decree and amend paragraph 29 to include a provision for equal division of the insurance policies. Neither can the lower court wrap itself in the cloak of equity and, in effect, force the appellant to pay for the oversight of appellee’s trial counsel By so doing, the lower court abused its discretion. The property agreement is clear: the parties, after extensive negotiation, agreed that, in exchange for half of the certificate of deposit proceeds, the appellee would relinquish all claims to the trust. We hold that parties’ agreement must stand, and we vacate order of the lower court.

Order vacated and petition dismissed. Jurisdiction is relinquished.

McEWEN, J., concurs in the result.

      . After reviewing the evidence, the lower court found 23 Pa.S.A. § 403 did not apply to the present action. § 403 applies when a party fails to disclose the existence of marital assets subject to distribution. Instantly, the lower court found that the existence of the insurance policies was fully disclosed by the appellant. Thus, the imposition of a constructive trust was not appropriate, and 23 Pa.S.A. § 403 does not apply. For correct application of 23 Pa.S.A. § 403, see Major v. Major, 359 Pa.Super. 344, 518 A.2d 1267 (1986).

        . The facts of this case are somewhat akin to the facts of Beamer v. Beamer, 330 Pa.Super. 154, 479 A.2d 485 (1984), wherein the parties agreed to divide equally the net value of their marital abode. Appropriately ten months after the divorce decree was entered and prior to the husband paying the wife her half of the property's net value, the house burned to the ground. The property was insured in the husband’s name for $20,000 in excess of the property’s appraised value. The wife petitioned the lower court to open the decree, alleging her entitlement to 50% of the insurance proceeds. The lower court refused to open the decree.
      Thereafter, we affirmed, ruling that the wife was not entitled to reopen a divorce judgment to obtain equitable distribution of proceeds of fire insurance on the marital home where, even though the house was insured for more than the value set in the divorce decree, her interest in the home had been litigated.
      Similarly, we will not allow the appellee to open the divorce decree and relitigate her entitlement to 50% of the policies’ surrender value where, even though the policies’ value was greater than believed, the appellant did not act in a fraudulent manner and the agreement specifically disposes of the policies.


author: WIEAND, Judge:

text:
    557 A.2d 27
    Marjorie and Mark BROSIUS, Appellants, v. LEWISBURG CRAFT FAIR, Lewisburg Armory Board, and the Commonwealth of Pennsylvania, Department of General Services, Appellees, v. Ada BOWER and James R. Carr, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1988.
    Filed April 17, 1989.

      David L. Lutz, Harrisburg, for appellants.
    Robert J. Menapace, Assistant District Attorney, Sun-burg, for Lewisburg Craft Fair, appellee.
    John Havas, Harrisburg, for Lewisburg Armory Bd., appellee.
    Michael F. Cosgrove, Scranton, for Bower, appellee.
    Gary Weber, Williamsport, for Carr, appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

In this action to recover damages for personal injuries sustained in a vehicular accident, the trial court entered judgment on the pleadings in favor of all defendants after plaintiff and her husband had admitted signing a general release. The plaintiffs appealed. We affirm.

Marjorie Brosius, while crossing a highway en route to the Lewisburg Craft Fair, was struck and injured by a vehicle operated by Robert Carr. The Carr vehicle was insured under a policy of automobile insurance which contained a liability limit of twenty-five thousand ($25,000.00) dollars. This sum was paid to Mrs. Brosius and her husband, Mark, who executed in exchange therefor a general release. The release contained language which released all claims arising from the accident against “any and all other persons, firms, corporations, associations, both known and unknown, whether herein named or referred to or not.”

Alleging medical bills in excess of one hundred thousand ($100,000.00) dollars, Mrs. Brosius and her husband subsequently commenced an action against Lewisburg Craft Fair, Inc., Lewisburg Armory Board, an alleged lessor of the premises on which the fair had been conducted, and the Commonwealth of Pennsylvania, Department of General Services. These defendants joined Ada Bower, who had been walking with Mrs. Brosius at the time of the accident, and Robert Carr, the driver of the offending vehicle, as additional defendants. Carr pleaded, by way of defense, the release which had been executed by Mrs. Brosius and her husband. In a reply thereto, the plaintiffs admitted the release. They did not allege that it had been obtained as a result of fraud, duress, or mutual mistake. Thereafter, all defendants and additional defendants filed motions for judgment on the pleadings, which the trial court granted.

In Pennsylvania, the effect of a release is determined by the language appearing therein. This language must be interpreted according to its ordinary meaning, unless it appears that the language was intended to convey a different meaning. Wenger v. Ziegler, 424 Pa. 268, 271, 226 A.2d 653, 654 (1967); Vogel v. Berkley, 354 Pa.Super. 291, 297, 511 A.2d 878, 881 (1986). The clear meaning of the terms of the release executed by appellants in the instant case is that plaintiffs, in exchange for payment of Carr’s policy limits, intended to release not only Carr but all other parties from any and all future liability. In this manner, the parties agreed that there would be no further litigation against any third person who might join Carr as an additional defendant. Appellants have failed to demonstrate any valid reason for preventing a settling defendant from protecting himself in this manner.

Appellants argue that to hold the instant release applicable to other defendants, where the release was signed without consideration having been paid by such defendants, would be contrary to public policy. This argument is not supported by the decided cases, which have held generally that releases are enforceable according to their terms in the absence of fraud or mutual mistake. See: Wolbach v. Fay, 488 Pa. 239, 412 A.2d 487 (1980); Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764 (1961). A release will not be set aside as violative of public policy where it was understood by the parties, and where valid consideration was paid for it. See: 31 P.L.E. Release § 6 at p. 270. See also: Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S. § 8326 (“A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides....” (emphasis added)).

Relying on Sparler v. Fireman’s Insurance Co., 360 Pa.Super. 597, 521 A.2d 433 (1987), appeal denied, 518 Pa. 613, 540 A.2d 585 (1988), appellants argue that a court should look to the parties’ intent and determine whether they intended to release other potential defendants. In Sparler, however, the issue was whether a general release given in connection with the settlement of a third party tort action was applicable to bar a separate contract action by the releasor against his own insurance carrier to recover sums which the carrier had agreed expressly to pay. The Superior Court held that the release would not be given such an effect in the absence of a clear expression of intent to that effect. The Sparler court specifically distinguished the circumstances of the instant case when it said:

The trial court’s broad interpretation of Sparler’s general release was based upon a decision of the United States District Court for the Eastern District of Pennsylvania in Dorenzo v. General Motors Corp., 334 F.Supp. 1155 (E.D.Pa.1971), appeal dismissed, 474 F.2d 1339 (3d Cir.1973). Dorenzo, however, is inapposite to the instant case. There, the party claiming the benefit of the general release was a joint tortfeasor whose alleged liability, like that of the released party, had been premised on a single tortious injury to the plaintiff. Here, however, the party seeking to benefit from the general release is an insurer whose contractual liability is separate and apart from the tortious liability of the released tortfeasor.

Id., 360 Pa.Superior Ct. at 602-603, 521 A.2d at 435-436 (emphasis in original). In the present case, the general release was applicable by its terms to alleged joint tortfeasors whose liability, if any, arose from the same tortious injury to Mrs. Brosius for which the release had been executed. Under these circumstances, Sparler does not prevent enforcement of a release according to the clear and unambiguous terms thereof.

The pleadings in this case disclose no unresolved issues of fact pertaining to the validity of the release. Plaintiffs admitted that they had executed the release and did not allege that it had been a product of fraud or mistake. Appellants rely upon the decision of a panel of the Superior Court in Hower v. Whitmak Assoc., 371 Pa.Super. 443, 538 A.2d 524 (1988), where it was held that questions pertaining to intent and understanding in executing a release raise material issues of fact regarding the validity of the agreement. In Hower, however, mistake had been raised as a defense in the pleadings, and this had been supported by evidence which became apparent during discovery. Under these circumstances, the Court held that the trial court had erred in entering summary judgment barring recovery. In the instant case, judgment was entered on pleadings which admitted the release and alleged no facts that would allow the signatories to avoid its effect. Appellants pleaded only that appellees provided no consideration for the release and were therefore not released as a matter of law. This was an inadequate basis, as we have seen, for refusing to enforce the release according to its terms.

The order entering judgment on the pleadings is affirmed.