author: SPAETH, Judge:

text:
    434 A.2d 106
    Edmund DAWEJKO and Roseann Dawejko v. JORGENSEN STEEL COMPANY, Fred Hill & Son Company, Dresser Industries, Inc., American Chain and Cable Company, Inc., a/k/a ACCO, and Mansaver Industries, Inc., a Division of ACCO. Appeal of AMERICAN CHAIN AND CABLE COMPANY, INC., a/k/a ACCO, and Mansaver Industries, Inc., a Division of ACCO.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Aug. 14, 1981.

      Charles W. Craven, Philadelphia, for appellants.
    Robert M. Ross, Philadelphia, for appellees.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   SPAETH, Judge:

Appellee Edmund Dawejko was injured on August 2,1972, when he was struck by sheets of steel that were accidentally dropped from a lifting machine called a “Mansaver.” The “Mansaver” was manufactured by Mansaver Industries, Inc., of New Haven, Connecticut, in 1957 and was sold, through a broker, to Hotpack Corporation, appellee’s employer. In 1964, Mansaver Industries, Inc., sold its assets to American Chain and Cable Company, also known as ACCO, and subsequently ceased operations. ACCO formed a subdivision called Mansaver Industries, Inc., a Division of ACCO. The issue we must decide is whether appellees may recover against ACCO on principles of strict tort liability. We hold that they may recover.

-1-

The general rule is that when one company sells or transfers all of its assets to a successor company, the successor does not acquire the liabilities of the transferor corporation merely because of its succession to the transferor’s assets. Husak v. Berkel Incorporated, 234 Pa.Super. 452, 341 A.2d 174 (1975). See also Knapp v. North American Rockwell Corp., 506 F.2d 361 (3d Cir. 1974) cert. denied, North American Rockwell Corp. v. Knapp, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975). However, there are several exceptions to this general rule:

In order to find that this general rule is not applicable and that the transferee does acquire such liability, one of the following must be shown: (1) the purchaser expressly or impliedly agrees to assume such obligation; (2) the transaction amounts to a consolidation or merger; (3) the purchasing corporation is merely a continuation of the selling corporation; or (4) the transaction is fraudulently entered into to escape liability. See Granthum v. Textile Machine Works, 230 Pa.Super. 199, 326 A.2d 449 (1974). A fifth circumstance, sometimes included as an exception to the general rule, is where the transfer was without adequate consideration and provisions were not made for creditors of the transferor. See Lopata v. Bemis Co., Inc., 383 F.Supp. 342 (E.D.Pa.1974); McKee v. Harris-Seybold Co., Division of Harris-Intertype Corp., 109 N.J.Super. 555, 264 A.2d 98 (1970); 19 Am.Jur.2d Corporations § 1546 (1965); 15 W. Fletcher, Cyclopedia of Corporations § 7122 (Perm. ed. 1973).
Husak v. Berkel Incorporated, supra, 234 Pa.Super. at 456-57, 341 A.2d at 176-77.

See also Caberera v. Hayes-Albion Corp., C.A. No. 80-3108 (E.D.Pa. Feb. 10, 1981); Woody v. Combustion Engineering, Inc., 463 F.Supp. 817, 820 (E.D.Tenn.1978).

Sometimes in cases of strict tort liability the general rule seems to lead to an unjust result, consequently, a tendency has developed either to expand one of the recognized exceptions to the rule or to add a new exception, so that the successor corporation will be strictly liable for a defective product manufactured by the predecessor corporation.

Traditionally, a case has been held within the “continuation” exception only when there is a common identity of officers, directors and stock between the selling and purchasing corporations, and only one corporation after the transfer. See Jacobs v. Lakewood Aircraft Service, Inc., et al., F.2d (3d Cir., filed April 3, 1981); Lopata v. Bemis Co., 383 F.Supp., 342 (E.D.Pa.1974), vac. and remanded, 517 F.2d 1398 (3d Cir.), judgment reinstated, 406 F.Supp. 521 (E.D.Pa. 1975); Kloberdanz v. Joy Manufacturing Co., 288 F.Supp. 817, 821 (D.Colo.1968); Wilson v. Fare Well Corp., 140 N.J. Super. 476, 356 A.2d 458 (L.Div.1976). However, in some recent decisions, a “continuation” has been defined more broadly, the emphasis being shifted from corporate formalities to an inquiry regarding the nature of the business operations.

In Cyr v. B. Offen & Co., Inc., 501 F.2d 1145 (1st Cir. 1974), several employees and a financial backer had purchased the assets of a predecessor corporation after its owner died. According to the court this was a transfer in which “facial and substantive continuity were the essence of the bargain.” 501 F.2d at 1152.

The purchase of good will and contract obligations was central to the agreement. Old service obligations were assumed by the purchaser and B. Offen & Co., Inc. [successor] continued to service and renovate old dryers. No notice was given to known customers of B. Offen Company [predecessor] that a new or different business was beginning. B. Offen & Co., Inc. advertised itself as an ongoing enterprise, and even claimed in its advertising that it was a forty year old business. It continued to produce the same kind of product in essentially the same way that Bernard Offen [owner of predecessor] had. 501 F.2d at 1151.

In these circumstances, the Court of Appeals, applying New Hampshire Law, found a continuation and therefore held that the successor corporation was not immune from suit. The court based its decision on the considerations of policy that underlie the rule of strict liability:

The very existence of strict liability for manufacturers implies a basic judgment that the hazards of predicting and insuring for risk from defective products are better borne by the manufacturer than by the consumer. The manufacturer's successor, carrying over the experience and expertise of the manufacturer, is likewise in a better position than the consumer to gauge the risks and the costs of meeting them. The successor knows the product, is as able to calculate the risk of defects as the predecessor, is in position to insure therefor and reflect such cost in sale negotiation, and is the only entity capable of improving the quality of the product.
501 F.2d at 1154.

The court said that

it is true that the successor, by definition, was not the legal entity which launched the product on the stream of commerce or made an implied representation as to its safety. But in the most real sense it is profiting from and exploiting all of the accumulated good will which the products have earned, both in its outward representations of continuity and in its internal adherence to the same line of equipment.
501 F.2d at 1154.

In Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873 (1976), the successor corporation maintained the same product, name, personnel, property and clients. According to the court, “[Continuity [was] the purpose, continuity [was] the watchword, continuity [was] the fact.” Id. at 426, 244 N.W.2d at 882. The court defined “continuity of the enterprise” as existing when there is continuity of the predecessor corporation’s enterprise (management, personnel, physical location, assets, etc.), and when, after the transaction, the predecessor corporation ceases its ordinary business operations, while the successor corporation continues those operations. In these circumstances, the court said, liability should extend to the successor corporation. “[Justice would be offended if a corporation which holds itself out as a particular company for the purpose of sales would not be estopped from denying that it is that company for the purpose of determining products liability.” 397 Mich, at 426, 244 N.W. at 882. For other opinions adopting this concept of “continuity of the enterprise,” see Andrews v. John E. Smith’s Sons Co., 369 So.2d 781, 785 (Ala.1979), and Korzetz v. Amsted Industries, Inc., 472 F.Supp. 136 (E.D.Mich.1979).

Some of the cases have taken a slightly different tack. Instead of deciding whether a given case fits within the continuation exception to the general rule, they have evolved a new exception, which may be called the product-line exception. See Recent Developments, Products Liability-Liability of Transferee for Defective Products Manufactured by Transferor, 30 Vanderbilt L.R. 238 (1977); Recent Developments, Products Liability-Corporations—Asset Sales and Successor Liability, 44 Tenn.L.R. 905 (1977).

In Ray v. Alad Corporation, 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977), the successor corporation continued to manufacture the predecessor corporation’s product line (ladders), using the same equipment and designs, employing the same personnel, and soliciting the predecessor’s customers through the same sales representatives, with no outward indication of a change of ownership. The court held that the continuation exception was not available because under California law it was limited to cases in which there was inadequate consideration for the predecessor corporation’s assets and no provision for meeting the claims of unsecured creditors, or where one or more persons were officers, directors or stockholders of both corporations. The court was of the opinion, however, that to deny recovery simply because there was no continuation would be unjust:

The purpose of the rule of strict tort liability “is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901.) However, the rule “does not rest on the analysis of the financial strength or bargaining power of the parties to the particular action. It rests, rather, on the proposition that ‘[t]he cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.’ (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 462, 150 P.2d 436 [concurring opinion].)” (Seeley v. White Motor Co., (1965) 63 Cal.2d 9, 18-19, 45 Cal.Rptr. 17, 23, 403 P.2d 145, 151.) Thus, “the paramount policy to be promoted by the rule is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.” (Italics added.) Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 251, 85 Cal.Rptr. 178, 181, 466 P.2d 722, 725.) 19 Cal.3d at 30-31, 136 Cal.Rptr. at 579, 560 P.2d at 8-9.

Given this “paramount policy,” the court held, strict liability should be imposed upon a successor to a manufacturer if three circumstances were shown:

(1) the virtual destruction of the plaintiff’s remedies against the original manufacturer caused by the successor’s acquisition of the business, (2) the successor’s ability to assume the original manufacturer’s risk-spreading rule, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer’s good will being enjoyed by the successor in the continued operation of the business.
Id.

The court then examined, the facts of the case before it, concluded that the three circumstances were shown, and reversed a summary judgment that had been entered in favor of the successor corporation.

In Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 431 A.2d 811 (1981), the court, after a review of the cases, including Ray v. Alad Corp., supra, Turner v. Bituminous Casualty Co., supra, Cyr v. B. Offen & Co., Inc. supra, decided to adopt the product-line exception, which it formulated as follows:

[W]here one corporation acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation as the selling corporation, the purchasing corporation is strictly liable for injuries caused by defects in units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor.
86 N.J. at 358, 431 A.2d at 825.

-2-

So far, Pennsylvania law has not adopted the product-line exception. In Jacobs v. Lakewood Aircraft Service, Inc. supra, Chief Judge LORD of the Federal District Court had occasion to consider a successor corporation’s liability in a products liability case. As it happened, however, he did not have to decide just what was Pennsylvania law. He assumed that a Pennsylvania court would define a “continuation” more broadly than has been traditional, and also, would adopt the product-line exception. He found, however, that even on this assumption, the facts before him could not justify a finding of liability. We believe that it is now time to adopt the product-line exception as Pennsylvania law. Doing so represents a natural development of the law, which in fact has been foretold.

In Knapp v. North Americal Rockwell Corp., 506 F.2d 361 (3d Cir. 1974), the Court of Appeals had to decide whether under Pennsylvania law summary judgment should have been granted in favor of a successor corporation. The court acknowledged that in form the transaction between the predecessor corporation and the successor corporation was a sale of assets rather than a merger, and that, therefore, liability could not be imposed under the merger exception to the general rule that a sale of corporate property by one company to another does not carry liability with it. Nevertheless, the court reversed. It based this decision on the conclusion that a Pennsylvania appellate court would hold that the particular facts of the transaction were such that it “should be treated as a merger.” Id. at 367. The predecessor corporation had exchanged substantially all of its assets for stock in the successor corporation, and although it did not terminate its existence for eighteen months after the exchange, the contract forbid it to engage in normal business transactions and required that it dissolve as soon as practicable. Also, the contract required the predecessor corporation to preserve its business organization intact for the successor corporation, to make available to the successor its existing officers and employees, and to maintain its relationship with its customers and suppliers. After the exchange of assets for stock, the successor corporation continued the predecessor corporation’s business operations. Given these facts, the court, by Judge ADAMS, said:

If we are to follow the philosophy of the Pennsylvania courts that questions of an injured party’s right to seek recovery are to be resolved by an analysis of public policy considerations rather than by a mere procrustean application of formalities, we must, in considering whether the ... exchange was a merger, evaluate the public policy implications of that determination.
Id. at 369.

In concluding that public policy considerations required that a merger be found—that liability be imposed—the court relied particularly on Ayala v. Phila. Bd. of Educ., 453 Pa. 584, 305 A.2d 877 (1973), where the Supreme Court abolished the doctrine of local governmental immunity, with the observation that “[t]he city is a far better loss-distributing agency than the innocent and injured” student whose arm was hurt in a shredding machine during an upholstering class. 453 Pa. at 594-95, 305 A.2d at 882, quoting from 32 Am. Trial L.J. 284, 288 (1968).

Judge ROSENN concurred in this result, but he concluded that liability should be imposed on the successor corporation on the basis of a liberal construction of the merger provisions of the Business Corporation Law. After stating that “[i]n the present day of complex corporate reorganizations and acquisitions,” courts “must examine the substance of a transaction [rather than merely the form] to ascertain its true purpose and intent,” 506 F.2d at 370, Judge ROSENN said:

I believe that, where a corporation purchases substantially all the assets of a second corporation, the legislature intended to impose the second corporation’s tort liabilities on the acquiring corporation at least if the following attributes of merger are present:
(1) an ongoing business, including its name and good will, is transferred to the acquiring corporation; and
(2) the corporation whose assets are acquired is dissolved after distribution to its shareholders of the consideration received from the acquiring corporation.

Judge ROSENN concluded by saying:

In imposing liability for the torts of the acquired corporation, I realize that the acquiring corporation was not a party to any tortious act and had no connection with the acquired corporation at the time the allegedly defective product was manufactured. The acquiring corporation, however, is in a position both before and after the acquisition to take necessary measures for its protection against potential products liability claims.
Id. at 373.

It is perhaps only a matter of style how one proceeds. One may retain the traditional exceptions but expand their boundaries, so that “merger” or “continuation” are held to include cases they once would not have included. Or one may adopt a new exception, such as the product-line exception. We believe it better to adopt a new exception. To the extent the law has changed—and so far, as the foregoing discussions indicates, it has changed in relatively few jurisdictions—the change may be explained as an attempt to implement “the social policies underlying strict products liability.” Ramirez v. Amsted Industries, Inc. supra at 358, 431 A.2d at 825. By adopting a new exception, this impetus is acknowledged and made plain, the other exceptions then remaining, to deal with cases not so much affected by the policy considerations that have led to the rule of strict liability for defective products.

We also believe it better not to phrase the new exception too tightly. Given its philosophical origin, it should be phrased in general terms, so that in any particular case the court may consider whether it is just to impose liability on the successor corporation. The various factors identified in the several cases discussed above will always be pertinent— for example, whether the successor corporation advertised itself as an ongoing enterprise, Cyr v. B. Offen & Co., supra; or whether it maintained the same product, name, personnel, property, and clients, Turner v. Bituminous Casualty Co., supra; or whether it acquired the predecessor corporation’s name and good will, and required the predecessor to dissolve, Knapp v. North American Rockwell Corp., supra. Also, ic will always be useful to consider whether the three-part test stated in Ray v. Alad Corp., supra, has been met. The exception will more likely realize its reason for being, however, if such details are not made part of its formulation. The formulation of the court in Ramirez v. Amsted Industries, Inc., supra, is well-put, and we adopt it.

-3-

If one applies the product-line exception as formulated in Ramirez v. Amsted Industries, Inc., supra, to the facts of the present case, one will conclude that the decision of the lower court should be affirmed. Appellant seeks judgment n.o.v. In deciding whether judgment n.o.v. should be entered, we must view all of the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970); Visscher v. O’Brien, 274 Pa.Super. 375, 418 A.2d 454 (1980). Viewed in this light, the record shows the following facts: After transferring its assets to ACCO, in 1964, Mansaver Industries, Inc., of New Haven, Connecticut, went out of business. (R.R. 21a). The assets transferred included Mansaver’s trademark and good will. (R.R. 20a). The record includes a four page manual regarding the “Mansaver standard headroom sheet lifter (hand-operated).” (R.R. 51a-54a). This was issued October 1, 1974, and was revised September 27, 1976. (R.R. 51-54a). It bears the name “ACCO—Industrial Lifters Division” on three of its pages (R.R. 51a, 52a, 54a); the third page, “Operating Instructions,” is evidently carried over from the original manual, for it is identified as from “New Haven, Connecticut.” (R.R. 53a). In their brief, appellees say:

We suggest this is clear evidence that not only did [appellant] purchase the assets of Mansaver Industries, Inc. of New Haven, Conn., but it continued to operate the business [,] manufacturing and selling the identified product as its assignor corporation had done . .. [I]n acquiring the goodwill of Mansaver Industries, Inc. of New Haven, Conn., [appellant] clearly evinced the intention to continue the business as it had existed. Why else would [appellant] expressly desire to acquire its predecessor’s good will .. . [?] That course of action shows a desire to capitalize of the past performance and business carried on by the old corporation. Indeed, [appellant’s] course of operations following the acquisition of assets indicates that [appellant] manufactured and sold the same machine under the same name as its predecessor.
Brief for appellees at 9-10.

While we do not agree that the record is as “clear” or complete as it might have been, nevertheless, the jury was entitled to find the facts as appellees have stated them.

Affirmed.

      . Appellant also argues that the lower court erred in considering its motion for judgment n.o.v. as though it were a motion for summary judgment. We agree that the lower court applied an erroneous standard in considering appellant’s motion, but find the error harmless, given our disposition above.
      On another procedural point, appellee argues that the lower court was correct in dismissing appellant’s motion for judgment n.o.v. for failure of appellant to comply with 12 P.S. § 681, Act of April 22, 1905, P.L. 286 § 1, as amended, 12 P.S. § 681, repealed, Act of April 28, 1978, P.L. 202, § 2(a) (effective June 27, 1980), which provides that the party moving for judgment n.o.v. is required to “move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record.” We have concluded that in the particular circumstance of this case—which we think it unnecessary to state—the lower court should not have dismissed appellant’s motion for judgment n.o.v. solely for failure of appellant to have the notes of testimony transcribed. However, we find this error to have been harmless, given our conclusion that judgment n.o.v. was correctly denied on substantive grounds.


source: Caselaw Access Project

license: Public Domain

text:
    434 A.2d 112
    Gary ZEPP, Appellant, v. NATIONWIDE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Aug. 14, 1981.

      Joseph Mellace, Philadelphia, for appellant.
    Gerard Bruderle, Philadelphia, for appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from an order granting summary judgment. Appellant, Gary Zepp, claims benefits under a no-fault automobile insurance policy issued by appellee to his father, James Zepp. The lower court acknowledged that there was an “unresolved question of fact concerning whether or not the payments sought by [appellant] are in fact ‘overdue’ under the Act[] and whether or not they have been properly rejected by [appellee].” It nevertheless granted summary judgment because it calculated that even if the payments had been improperly refused, appellee still did not owe appellant anything. Since we find the lower court’s calculation in error, we reverse.

The lower court found that based on its interpretation of the policy, appellant had been overpaid on his work loss claim by $134.35. The court then assessed interest against appellant at the rate of 18% from the day after the last day included in the work loss period until the time the suit was started, increasing the amount appellant owed appellee to $183. The amount of unpaid medical bills claimed in appellant’s complaint was $409.49. By reducing this amount by a $250 deductible, the court found that the most appellee could owe appellant would be $159.49. Since this was less than the amount the court had determined appellant owed appellee, the court entered judgment in favor of appellee and against appellant.

The court’s assessment of 18% interest against appellant was improper. Section 106{aX2) of the No-fault Act, 40 P.S. § 1009.106(a)(2), provides that when no-fault benefits are not paid on time by the insurance company, they bear interest at 18%. The Supreme Court has held that this high rate— three times the normal legal rate of 6%—reflects a legislative determination that prompt payment of no-fault benefits is of particular importance and is to be encouraged. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981). Nothing indicates any intention by the legislature to apply this rate to overpayments erroneously made by an insurance company.

In addition, the court’s assumption that the amount of unpaid medical bills claimed in appellant’s complaint should be reduced by a $250 deductible is unsupported by the record.

Section 203 of the No-fault Act, 40 P.S. § 1009.203, provides as follows:

(b) The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim or members of his family residing with him or the survivor of a deceased victim, allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary.
(c) An insurer providing basic loss benefits and tort liability in accordance with the provisions of subsection (b) above shall reduce the cost of such contract of insurance to reflect the anticipated reduction in basic loss benefits payable by the insurer by reason of the election of the owner or operator to provide substitute security.

The regulations of the Insurance Department implementing this section, 31 Pa. Code § 66.53, further provide:

(b) Insurers providing basic loss benefits and tort liability coverage shall make available an option to have Basic Loss Benefits Coverage pay only those amounts not paid by a program, group, contract, or other arrangement which provides security for either of the following:
(1) Professional medical treatment and care.
(2) Work loss coverage for the insured. A named insured who elects one or both such options shall be afforded an appropriately reduced premium in accordance with the rates filed with the Insurance Commissioner.
(c)
(1) Basic loss benefit insurers may require the named insured to sign a sworn affidavit certifying the existence of such coverage and reasonable information as to the extent of such coverage. Insurers may also require the named insured to give reasonable notice of termination of such coverage to permit proper rating of coverage under this section. If no named insured has such coverage in effect at the time an accident occurs and the named insured has not previously notified the insurer, a $250 deductible for professional medical treatment and care, or a two week waiting period for work loss, or both, as appropriate, shall apply, but only against the named insured.

The memorandum of law attached to appellee’s motion for summary judgment includes exhibits that indicate that appellant’s father, the policyholder, had chosen the option provided by § 203(b) and had received a reduction in premium as mandated by § 203(c).

However, appellant’s complaint does not indicate appellant’s relationship to James Zepp, nor whether appellant was a passenger or a driver, nor whether the automobile named in the policy issued to James Zepp was involved in the accident. Although appellee’s motion for summary judgment alleges that James Zepp is appellant’s father, and this is admitted by the answer, nothing of record establishes whether appellant was a member of his father’s household or could be considered a “named insured” under the terms of the policy issued to his father. Also, while appellee’s motion for summary judgment and the lower court’s opinion both assume that James Zepp did not have the required collateral insurance in force, neither is that fact established of record.

It is therefore apparent that the unresolved issues of fact regarding the amount of appellant’s medical expenses and whether appellee properly rejected appellant’s claim may not be avoided by the calculation resorted to by the lower court.

Reversed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq.

      . If we assume that appellee would be entitled to interest at 6% on an overpayment, the lower court still erred by computing interest from the day after the last day included in the work loss period without any reference to the circumstances of the overpayment, the date the payment was made (this date is not of record), and the date a demand was made for its repayment (if such a demand was ever made). Also, given that the court could not determine whether any medical benefits were overdue to appellant, we are puzzled by the court’s readiness to assess interest against appellant but not against appellee.

      . Appellee’s exhibits are not properly part of the record because they were attached to the memorandum of law that accompanied the motion for summary judgment rather than being made part of the motion or being presented as part of an affidavit in support of the motion. The memorandum and the lower court’s opinion both refer to a deposition of one of appellee’s employers, but the deposition was not made part of the record. The memorandum states that appellant was overpaid on his work loss claim by $136.19, and this figure is repeated by the lower court in its opinion—although the court states that it “does not completely agree with [appellee’s] arithmetic” (Slip Op. at 2). However, we can find no support in the record for appellee’s figure. We mention these matters because further proceedings will be necessary. Should another motion for summary judgment be filed, the court and both parties should confine themselves to matters of record.

      . The lower court found that a one week waiting period for work loss benefits applied. In doing so, the court confused the deductible option, which a carrier is permitted to offer, 40 P.S. § 1009.202 (e)(2), and which is limited to a one week waiting period, with the two week waiting period authorized by 31 Pa.Code § 66.53(c)(1). Because appellee has not claimed that any election under 40 P.S. § 1009.-202(e)(2) was ever made, appellant is either subject to a two week waiting period or to no waiting period at all, depending on whether he is a “named insured” under his father’s policy or not.


author: CAVANAUGH, Judge:

text:
    434 A.2d 115
    COMMONWEALTH of Pennsylvania, v. Jay C. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1980.
    Filed Aug. 14, 1981.

      John J. O’Brien, West Chester, for appellant.

      Stanton M. Lacks, Assistant District Attorney, Doyles-town, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   CAVANAUGH, Judge:

On December 17, 1977, a man later identified as Jay C. Smith, the appellant herein, went to the cashier’s office on the second floor of the Sears and Roebucks Store at the Neshaminey Mall, Bensalem, Bucks County. He was wearing a dark blue uniform and hat of the type worn by security personnel. The Armored Motor Service Company regularly picked up cash receipts at the Neshaminey branch of the Sears Store and the appellant indicated that he had come to pick up the daily receipts. The appellant had a plastic identification card bearing his photograph and the signature purportedly of a guard by the name of Albert Wharton who was an employee of Armored Motor Service. The assistant head cashier has a list of authorized personnel from the Armored Motor Service and the list also bore the signatures of the various security personnel who were authorized to receive cash. The cashier checked the signature on her list which carried the name of Albert J. Wharton. However, the signature on the cashier’s list was different than that appearing on the identification card in the appellant’s possession. Because of this discrepancy the cashier became suspicious and called the store security office. In the meantime the man representing himself to be Mr. Wharton became increasingly nervous. Finally, he demanded entry to the cashier’s office. When he was told that he could not go back to where the cashier was he leaped over a barrier and grabbed the card from the desk where the cashier had placed it. In his hurry to leave he bumped into another employee in the office. He then proceeded down the escalator and was observed by a salesman on the first floor as he pushed people aside to make good his escape. Appellant was not arrested for this crime until September of 1978.

Appellant was tried before Garb, J. and a jury and found guilty of attempted theft by deception. His motion for a new trial was dismissed and he was sentenced to two to four years imprisonment.

Appellant’s first contention is that he was denied protective measures which would have afforded him a trial by a fair and impartial jury. His first argument under this concept is that his motion for change of venue should have been granted. Appellant, at the time of the offense involved in this case, was the principal of the Upper Merion Senior High School, located in Montgomery County. In July and August of 1978 the appellant was arrested for various crimes which he allegedly committed in Chester, Delaware and Montgomery Counties. A change of venue was granted with respect to alleged crimes committed in the counties other than Bucks County and trial was held in Dauphin County as to those charges.

At the time of the appellant’s arrest in July and August 1978, for offenses other than those involved in this case, there was considerable press and television coverage given to the appellant. Many articles appeared in The Philadelphia Inquirer and Philadelphia Bulletin as well as in the Philadelphia Journal, the Philadelphia Daily News, the Daily Intelligencer which is published in Doylestown, Pennsylvania, and the Quakertown Free Press. These articles appeared mainly at the end of August and beginning of September, 1978. Appellant was not tried in the court below until February, 1979.

The court below was concerned particularly with a series of television news broadcasts. In this regard the court stated in its opinion:

We viewed 6 separate news broadcasts by KYW-TV of their news coverage of the defendant’s various arrests. The televised coverage was quite graphic in displaying the guns that were taken from the defendant and from his car, together with an oil filter type of silencer, these photographs were obviously made in police headquarters, mug shots, suggestions of other crimes by policemen on camera, photographs of the defendant’s home, comments by a neighbor and a student in the high school at which he was principal, a comment about stolen school property and an apparent photograph of someone carrying an allegedly stolen school picture, comments by the school superintendent on camera, pictures of the defendant being led in handcuffs from a hearing to a police car, composite pictures, and policemen interviews. Although we believe these went quite far, we still do not believe that they necessitated a change of venue without a determination of whether a fair jury can be impaneled by voir dire considering that there were only six of these presented and that they occur over five months prior to the time of trial.

The court was also concerned with a publication appearing in the Philadelphia Journal on September 1, 1978, which contained a composite drawing suggesting that the appellant might have been involved in a murder with which he had not been charged. The court was satisfied, however, that this adverse publicity was contained in a publication of relatively small circulation in Philadelphia and of unknown circulation in Bucks County and that it did not deny the appellant a fair trial. An application for change of venue is addressed to the sound discretion of the court, and its exercise of that discretion will not be disturbed by an appellate court in the absence of an abuse of discretion. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980). As this court stated in Commonwealth v. Heath, 275 Pa.Super. 478, 419 A.2d 1 (1980) at 275 Pa.Super. 487, 419 A.2d 5:

In cases where prejudicial pretrial publicity is alleged, the trial court should consider: whether the pretrial publicity revealed the existence of the accused’s prior criminal record; whether the publicity referred to confession, admissions or reenactments of the crime by the defendant; and whether such information is the product of reports by the police and prosecutorial officers. Commonwealth v. Sutton, supra [485 Pa. 47, 400 A.2d 1305 (1979)]; Commonwealth v. Casper, supra [481 Pa. 143, 392 A.2d 287 (1978)]. The presence of one of these elements does not, in itself, warrant a presumption of prejudice. Inquiry must be made to determine whether such publicity has been so extensive, sustained and pervasive that the community must be deemed to have saturated with it.

The court below properly considered the appropriate guidelines in determining whether appellant had been prejudiced by pre-trial publicity.

Our Supreme Court has stated: “It is clear that the mere existence of pre-trial publicity does not warrant a presumption of prejudice. Similarly, a possibility that prospective jurors will have formed an opinion based on news accounts will not suffice.” Commonwealth v. Casper, 481 Pa. 143, 151-2, 392 A.2d 287, 291-2 (1978). Even extensive pre-trial publicity within a county does not necessarily preclude a fair trial in that county. If the court is satisfied that an objective, open-minded jury can be selected from the members of the community exposed to the publicity it need not grant a change of venue. Commonwealth v. Powell, 459 Pa. 253, 328 A.2d 507 (1974). We are satisfied in this case that the court below did not abuse its discretion in refusing to grant a change of venue.

Appellant also contends that he could not conduct a meaningful voir dire of the jury since the court would not allow him to question each juror out of the hearing of the other jurors. In support of this position appellant relies on Commonwealth v. Johnson, 440 Pa. 342, 269 A.2d 752 (1970) which involved pre-trial publicity of a highly inflammatory nature with racial overtones. The defendant was tried on charges of assault and battery, burglary and resisting arrest. A page one headline in the Pittsburgh Press (and the alleged offenses occurred in Pittsburgh) read “BLACK MOB BEATS TOP COP KELLY”. A headline in the Pittsburgh Post-Gazette stated “BLACKS BEAT ASSISTANT SUPERINTENDENT KELLY”. A page one editorial in the Pittsburgh Press depicted assailants as a “vicious mob” and “hoodlums”. Another headline stated “KELLY ASSAILANT HELD IN NEW ATTACK.” 440 Pa. 344, 345, 269 A.2d 752-4. As pointed out at 440 Pa. 350, 351, 269 A.2d 756-757:

However, the pretrial publicity afforded appellant consisted of much more than the accounts of his encounter with the Assistant Superintendent. First, it included detailed accounts of appellant’s prior record, which would, of course, not have been legally admissible at his trial. Second, and particularly prejudicial, because they were so deliberately inflammatory, were remarks by the district attorney, such as his statement that appellant and two other black spokesmen were “false leaders” who “speak for the arsonists, hoodlums and insurgents who would go to any extreme to avoid living under the laws of the Commonwealth.” Inflammatory statements like this were hardly calculated to create an atmosphere for trial which would provide the “judicial serenity and calm to which petitioner was entitled.”

The Johnson case held that in the circumstances therein presented, namely the highly prejudicial and inflammatory articles concerning the defendant and the highly inflammatory statements of the prosecutor, that the lower court abused its discretion in refusing to question each juror out of the hearing of the other jurors. In the instant case the appellant points to no specific instance of inflammatory pre-trial publicity. The fact that the news media reported that the appellant was arrested for alleged offenses occurring at other times and other places than the offense in Bucks County, is not of itself inflammatory. Dr. Smith was the principal of a senior high school and this was newsworthy as was the fact that he had been arrested in other counties. However the material was not highly prejudicial nor was there evidence that it was disseminated throughout Bucks County. When such is the case the preferred procedure is either to sequester the jury or question the jurors individually outside the presence of the other members of the jury. Commonwealth v. Reeves, 255 Pa.Super. 409, 387 A.2d 877 (1978). In Commonwealth v. Herron, 243 Pa.Super. 319, 365 A.2d 871 (1976), the trial court prohibited specific inquiry into what each potential juror may have heard or read about the case and also refused a motion for individual voir dire. This court found no abuse of discretion even though the district attorney in a television interview prior to trial commented on the defendant’s recent convictions.

In the instant case three prospective jurors were excused for cause as a result of the voir dire on the grounds that they were familiar with some of the pre-trial media accounts. Four other prospective jurors recalled they had read some of the news accounts but could not recall what they said and all four indicated that they had no bias against the appellant. Three of these four prospective jurors were challenged peremptorily.

Appellant also claims that the court below erred in refusing to sequester the jury. The grant of a motion to sequester the jury is within the discretion of the court. Pa.R.Crim.P. 1111. The court’s decision will not be reversed unless it abused its discretion or committed an error of law which controlled the outcome of the case. Commonwealth v. Tolassi, supra. Appellant has pointed to no actual prejudice from the court’s refusal to sequester the jury, On the contrary, the trial judge continually cautioned the members of the jury not to read newspaper accounts of the trial. Appellant claimed during the trial that there were newspaper accounts of the trial, although he did not offer any of the articles into evidence. It is basic that a criminal defendant is to be guaranteed a fair trial before impartial jurors. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). “Under the circumstances of this case, it is clear that the court took adequate cautionary measures to insure that no prejudice occurred to the appellant. This is all that due process requires.” Commonwealth v. Williams, 262 Pa. Super. 508, 527,¹ 528, 396 A.2d 1286, 1296 (1978).

Appellant’s next argument is that the trial court erred in refusing to suppress tangible evidence consisting of a uniform jacket of a type worn by security guards and a uniform type hat. The hat was obtained at the appellant’s home on August 20,1978, by a police officer who was acting under a search warrant authorizing a search for marijuana. The officer testified that at the time he seized the hat he realized that crimes allegedly had been committed in the area by a person impersonating a security guard. He was specifically aware of a robbery in Abington Township involving a uniformed man wearing a Brink’s security uniform and another incident in Radnor Township, Delaware County, where a man was dressed in a security uniform and obtained money fraudulently from a store. The jacket was seized on August 21, 1978, by Officer Joseph Dudas of the Upper Merion Police Department who was conducting a search pursuant to a search warrant for silver ingots, coins and reproductions of works of art. These objects were not involved in the offenses involved in this appeal. While the officer was in the garage of appellant’s home, where he had been admitted by appellant’s daughter, Sherwyn, he observed the uniform jacket which was admitted into evidence. The officer stated that he had an idea that the jacket might be contraband because he knew that there were several incidents involving armed carrier services in the area where the person involved was picking up money from banks and department stores and was impersonating guard personnel. We believe, in the circumstances of this case, that the police were justified in seizing the uniform jacket and hat. In Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974) the police, acting under a search warrant, were looking for a stolen tool box containing mechanics’ tools. While searching a dresser drawer for the tools they discovered a coin collection and gold pocket watch which one of the officers knew had been stolen. The court held that since the coins and watch were items that could easily be moved or disposed of that an “exigent circumstance for their warrant-less seizure was present.” 227 Pa.Super. 8, 323 A.2d 803 (1974). If a search uncovers evidence of crimes other than those involved in the search warrant, the evidence may be used in prosecution of the other crimes. See Commonwealth v. Macek, 218 Pa.Super. 124, 279 A.2d 772 (1971). In Macek the search was pursuant to an arrest rather than a search warrant but there is no reason to preclude the evidence seized simply because the original search was based on a search warrant rather than on an arrest. We believe that the tangible evidence was admissible although the appellant argues that possession of uniforms such as those worn by security guards is not a crime. In the instant case the reason the police reasonably believed that the uniforms were contraband was because they were aware that uniforms of the kind found in appellant’s home were recently worn by someone impersonating a security guard in connection with various thefts in the area.

Appellant’s third argument goes to the admissibility of the testimony of eye-witnesses. His first objection is that the identification of some of the prosecution witnesses who were employees of the Sears and Roebucks Store where the offense occurred, was tainted as a result of an in-court confrontation between these witnesses and the appellant. The facts do not support this contention. The chief concern with identification evidence is its reliability. Commonwealth v. Silver, 260 Pa.Super. 232, 239, 393 A.2d 1239, 1242 (1978). Appellant contends that some of the prosecution’s eye-witnesses in the Sears store on the day in question improperly observed the appellant in the courthouse at a suppression hearing prior to trial. He also complained that the security manager at the Sears Roebucks Store in Neshaminey showed newspaper pictures and composite sketches to some of the witnesses who were Sears employees at the time of the offense. The security manager, Mr. Brown, was not a police officer or acting on behalf of the prosecution. The witnesses testified that they went to the manager’s office out of curiosity. The court below held a supplemental suppression hearing in advance of trial and determined that the testimony of the witnesses identifying the defendant should be admitted. The court stated in its opinion “In each case they established the opportunity they had to observe the defendant at the time of the occurrence including all of the surrounding and attendant circumstances and testified without equivocation that their identifications were firm prior to the time they went to the office of the security manager and that they could identify defendant without regard to the photos.” The court below found that primary illegality had not been established. In Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) our Supreme Court, quoting from United States v. Higgins, 458 F.2d 461 (3rd Cir. 1972) set forth the criteria to determine the reliability of an in-court identification as follows:

“(1) the manner in which the pretrial identification was conducted; (2) the witness’ prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant’s actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.”

In the instant case the court below properly found that the eye-witnesses met the test of reliability.

With respect to the witnesses the appellant also contends that the court below erred in refusing to permit testimony by his expert, a psychiatrist, “regarding the influence of group dynamics perception of employees’ identification avowals.” The appellant desired to have the psychiatrist testify hypothetically regarding the ability of identification witnesses to observe the defendant accurately. Where an issue involves a matter of common knowledge, expert testimony is inadmissible. Collins v. Zediker, 421 Pa. 52, 218 A.2d 776 (1966). As stated by the Supreme Court in Commonwealth v. O’Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976):

Traditionally, we have recognized not only the jury’s ability to determine the credibility of the witnesses but also we have placed this determination within their sole province. Commonwealth v. Hampton, 462 Pa. 322, 341 A.2d 101 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). To permit psychological testimony for this purpose would be an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment.

In this case the court below properly denied the admission of testimony by the appellant’s expert witness.

Appellant also contends that the evidence was insufficient to sustain the conviction. In determining the sufficiency of evidence we must accept as true all of the evidence upon which the finder of fact could properly have reached its verdict, giving the Commonwealth the benefit of all reasonable inferences arising from that evidence. Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979). Applying this test, the evidence was sufficient to sustain appellant’s conviction. The witnesses observed the appellant for a sufficient time to identify him. Identification of the appellant by the assistant head cashier, Joan Staats, was positive and unequivocal. The appellant was trying to get into the inner office for some five minutes during which Miss Staats was calling the security department. He kept ringing the buzzer. Finally Miss Staats heard someone say to him “You can’t go in there.” At this point he came running around a corner toward Miss Staats and grabbed the ID card from her desk. The appellant was identified by another witness whom he bumped into in the back room after he jumped over the partition. He was observed by a salesman on the first floor as he rushed down the escalator pushing people out of his way.

The offense of theft by deception is defined as:

§ 3922. Theft by deception
(a) Offense defined.—A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

Act of December 6, 1972, P.L. No. 834, 18 Pa.C.S.A. § 3922. Criminal attempt is defined as:

§ 901. Criminal attempt
(a) Definition of attempt.—A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S.A. §901.

Reviewing the evidence in the light of the applicable law we believe it is sufficient to sustain appellant’s conviction of attempted theft by deception.

Judgment of sentence affirmed.

SPAETH, J., concurs in the result.

      . The court below, in its opinion, incorrectly stated that the appellant had been the principal of “Upper Merion Township, Delaware County High School for approximately 12 years.” This error in the designation of the high school of which the appellant was principal has no bearing on the outcome of this case.

      Footnote four provides:
      4. “In determining whether the community has become saturated with prejudicial pretrial publicity, the trial court should consider the size and character of the area concerned, the pervasiveness of the media coverage in the community, and whether there has been a sufficient cooling off period between the publicity and commencement of trial that the prejudicial effect of the publicity may be deemed to have dissipated.. See Commonwealth v. Sutton, supra; Commonwealth v. Casper, supra.

      . Even if primary illegality were established it need not necessarily exclude a witness’ testimony.
      It is well established in this jurisdiction that whether or not testimony of the witness indentifying an accused is admissible, the applicable test is whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distiguishable to be purged of the taint. Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978).
      The Commonwealth is not required to prove an independent basis beyond a reasonable doubt and need ony establish its existence by clear and convincing evidence. Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976).


author: WIEAND, Judge:

text:
    434 A.2d 122
    Ronald C. SANDS and Evelyn L. Sands, his wife, Appellants, v. Joseph I. FORREST and Ruth B. Forrest, his wife.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1981.
    Filed Aug. 14, 1981.

      Kenneth E. Sands, Jr., Reading, for appellants.
    Peter F. Cianci, Reading, for appellees.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

During the trial of a trespass action for fraud and deceit, the trial court found that plaintiffs had alleged an incorrect measure of damages, denied a motion to amend the averment of damages, and directed a verdict for defendants because plaintiffs had failed to prove damages. This appeal was taken from the judgment entered following a denial of plaintiffs’ motion for new trial.

The transaction which gave rise to the instant litigation was the purchase of a farm property in rural Berks County. The property was shown to appellants, Ronald C. and Evelyn L. Sands, by a realtor in the summer of 1973. An agreement of sale was signed in October, 1973, and allocated a purchase price of $85,000.00 between real estate ($60,000.00) and personalty ($25,000.00). The items of personalty included swimming pool equipment, wooden fencing for a riding area, storm windows and screens. After appellants took possession of the property, they found it to be in need of substantial repair and also found that they had not received various items of personalty which they expected to receive. An action based on fraudulent misrepresentations allegedly made by the sellers, Joseph I. and Ruth B. Forrest, was commenced, in which appellants claimed as damages the costs of making necessary repairs to the real estate and the costs of acquiring the missing personalty. These damages were alleged to be $40,000.00.

At trial, appellants showed that appellees had represented the property to be in good condition and had said that the barn was supplied with water and electricity, that storm windows and screens were stored on the premises, and that the wooden riding ring was being sold with the real estate. Mr. Sands also testified that he had been told by appellees that no flooding had occurred on the property, that roof leaks had been repaired, and that the swimming pool was in perfect condition. These representations, appellants contended and their evidence attempted to show, were false. When appellants attempted to show the cost of repairing the premises and replacing missing personalty, appellees objected that the cost of making repairs was not the proper measure of damages. The trial court sustained the objection, holding that the correct measure of damages was the difference between the actual value of the property and its value if it had been as represented by appellees. Appellants’ counsel thereupon moved to amend the complaint and offered to produce evidence of the value of the property in the condition found by appellants when they took possession. The motion was denied, appellants were forced to rest, and a directed verdict was entered in favor of appellees.

The law in Pennsylvania is clear that in an action for fraud and deceit the measure of damages is the difference in value between the real, or market, value of the property at the time of the transaction and the higher, or fictitious, value which the buyer was induced to pay for it. Tilghman v. Dollenberg, 418 Pa. 604, 213 A.2d 324 (1965); Neuman v. Corn Exchange National Bank and Trust Co., 356 Pa. 442, 51 A.2d 759 (1947); Peters v. Stroudsburg Trust Co., 348 Pa. 451, 35 A.2d 341 (1944). See also: Baldassari v. Baldassari, 278 Pa.Super. 312, 420 A.2d 556 (1980); Kaufman v. Mellon National Bank and Trust Co., 366 F.2d 326 (3rd Cir. 1966); Miller v. Bare, 457 F.Supp. 1359 (W.D.Pa.1978).

Although the trial court correctly determined the proper measure of damages, it erred when it entered a directed verdict for appellees because of appellants’ failure to prove damages in accordance therewith. In the first place, appellants’ failure to prove damages was not determinative of the substantive issue of appellees’ alleged liability for fraud and deceit. If plaintiffs were entitled to a verdict on the cause of action alleged, but were unable to prove damages, they were nevertheless entitled to a verdict for nominal damages. See: Kassab v. Central Soya, 432 Pa. 217, 236, 246 A.2d 848, 857 (1968); Duke & Company v. Anderson, 275 Pa.Super. 65, 70, 418 A.2d 613, 617 (1980); Nemitz v. Bell Telephone Co. of Pennsylvania, 225 Pa.Super. 202, 310 A.2d 376 (1973); R. & B. Electric Co. v. Leventry, 102 Pa.Super. 353, 156 A. 581 (1931).

In addition, appellants should have been permitted to amend their complaint to allege a correct measure of damages. Pa.R.C.P. 1033 provides as follows:

“A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.”

The allowance of an amendment is within the discretion of the trial court. Berman v. Herrick, 424 Pa. 490, 227 A.2d 840 (1967); Junk v. East End Fire Dept., 262 Pa.Super. 473, 396 A.2d 1269 (1978). The right to amend, however, should be liberally granted unless prejudice to the adverse party or an error of law would result. Berman v. Herrick, supra; Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966); Cingota v. Milliken, 286 Pa.Super. 117, 428 A.2d 600 (1981). Amendments should be allowed even if proposed during trial. APCL & K, Inc. v. Richer Communications, Inc., 241 Pa.Super. 396, 361 A.2d 762 (1976); Willinger v. Mercy Catholic Medical Center of Southeastern Pennsylvania, Fitzgerald Mercy Division, 241 Pa.Super. 456, 362 A.2d 280 (1976), aff’d, 482 Pa. 441, 393 A.2d 1188 (1978). Whenever possible, courts should obtain determinations of cases on their merits. Gregg v. Gacon Construction Co., 249 Pa.Super. 377, 378 A.2d 344 (1977); Cianchetti v. Kaylen, 241 Pa.Super. 437, 361 A.2d 842 (1976).

Defective averments of damages are among the errors which are frequently corrected by amendments. See generally 2B Anderson Pennsylvania Civil Practice § 1033.18(c), pp. 175-178; 2 Goodrich Amram 2d § 1033:4.1, pp. 372-374. “When a plaintiff avers a good cause of action, but makes a mistake as to the measure of damages to which he is entitled or sets forth the wrong measure of damages, a change in the measure of damages alone ... does not amount to the introduction of a new cause of action and is always proper.” 3 Standard Pennsylvania Practice § 37, p. 714 (footnotes and citations omitted). This court has held that it is reversible error to refuse to permit a plaintiff to amend to a measure of damages acceptable to the court where the defendant is not prejudiced thereby. Bell v. Shetrom, 214 Pa.Super. 309, 257 A.2d 323 (1969). Particularly compelling in Bell was the fact that the denial of the amendment resulted in the grant of summary judgment for the defendant. There, as in the instant case, plaintiffs were effectively put out of court by the refusal to permit them to amend their complaint to aver a proper measure of damages.

“Prejudice that would prevent the grant of an amendment must be . .. something more than a detriment to the other party ‘since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party .... To make the advantage sought by an amendment operate as a bar to amendment would be to destroy the right to amend except in cases when the moving party would have no reason to amend.’ ” Cellutron Products Corp. v. Stewart, 223 Pa.Super. 391, 394, 300 A.2d 900, 901-902 (1972). The test, therefore, is whether the prejudice would go beyond “that which would normally flow from the allowance of an amendment.” Cellutron Products Corp. v. Stewart, Id., 223 Pa.Super. at 394, 300 A.2d at 902.

In the instant case, the record discloses no prejudice that would justify the court’s denial of appellants’ proposed amendment. The trial court concluded that to allow appellants’ amended damage claim would be to prejudice appellees by requiring them to employ real estate appraisers to rebut appellants’ testimony. Whether expert appraisals had previously been prepared for appellees and whether appellees were then prepared to proceed to rebut appellants’ evidence does not appear. However, if appellees required additional time to prepare because of new averments of fact which were contained in the amendment, the more prudent course would have been to allow a continuance rather than to deny an amendment which put plaintiffs out of court. Gregg v. Gacon Construction Co., supra.

We are forced to conclude, therefore, that the denial of appellants’ motion to amend the averment of damages was an abuse of discretion. This was particularly so where, as here, the refusal to allow the amendment resulted in putting appellants out of court.

The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.

      . Among the defects shown by appellants were cracks in the pool, unpainted and cracked interior walls, water leakage, and stains from flooding. Listed as missing were the mailbox, storm windows and screens, lighting fixtures, the fence for the riding ring, pool equipment, television jacks, and building supplies.


author: MONTGOMERY, Judge:

text:
    434 A.2d 125
    Lois CARRUTHERS, Claimant, Appellee and James W. Dolbow, Claimant, Appellant, v. $21,000 (FORMERLY NEW YORK LIFE INSURANCE COMPANY). Appeal of James W. DOLBOW, Claimant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Aug. 14, 1981.

      Joseph E. Lastowka, Jr., Media, for appellant.
    Joseph P. Caranci, Media, for appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.-
   MONTGOMERY, Judge:

Lois Carruthers, appellee, and James W. Dolbow, appellant, are both claimants of the proceeds of a group life insurance policy in the sum of $21,000.00 written by the New York Life Insurance Company. New York Life was granted leave to pay the proceeds of the policy into court.

The policy was written on the life of Theodore Dolbow, Jr. who died February 13, 1976. Theodore Dolbow, Jr. was initially insured under the policy on January 6, 1966, while an employee of the Reading Company. At that time, he designated Theresa V. Dolbow, his wife, as the beneficiary. On December 13, 1974, he changed the beneficiary to his brother, James W. Dolbow, one of the present claimants. He again changed the named beneficiary one February 28, 1975, this time to Lois Carruthers, the other claimant herein. Both changes were executed in full compliancé with the provisions of the policy.

The present dispute resulted from the contents of a holographic will which was admitted to probate. It was written by the decedent on the back of an envelope and read:

“As my last will & testament all insurance and any and all articles that belong to me and willed to anyone other than my brother James W. Dolbow is hereby changed to read willed to James W. Dolbow.
/s/ Theodore R. Dolbow, Jr.
10-26-75”

That part of the insurance policy applicable in the instant case reads:

“The Group provides that . . . the proceeds of your life insurance are payable to the beneficiary last designated by you before your death . . . Any part of your insurance for which there is no beneficiary designated or surviving at your death will be payable to the executor or administrator of your estate ...”
“A beneficiary can be designated, or . . . changed, only by a written notice received by or on behalf of New York Life. No such designation or change will be effective until recorded by or on behalf of New York Life, but once it has been so recorded, it will take effect as of the date the notice was signed, subject to any payment made or other action taken by or on behalf of New York Life before such recording.”

The issue, therefore, is whether the will dated October 26, 1975, accomplished a change of beneficiary from Lois Car-ruthers, who had been properly named therein on February 28, 1975. The lower court held that the will did not work a change and we agree. There being no facts in dispute, the order was by way of a summary judgment based on the applicable principles of law.

Generally, in order to effect a change of beneficiary the mode prescribed by the policy must be followed. Sproat v. Travelers Insurance Company, 289 Pa. 351, 137 A. 621 (1927); Riley v. Wirth, 313 Pa. 362, 169 A. 139 (1933). As noted in the excerpt from the policy set forth above, notice of a change must be by a writing received by the insurer, or on its behalf, and recorded before a change becomes effective. Once recorded, the change becomes effective as of the date of the writing. The policy herein, however, does not prescribe the form of the written notice.

It is not disputed that notice of the will was not brought to the attention of the insurer until after the death of the insured. Although he lived approximately three and one-half months after executing the will, the insured made no effort to comply with the provisions of his policy. The intent of the insured will be given effect in our Commonwealth if he does all that he reasonably can under the circumstances to comply with the terms of the policy which permit a change of beneficiary. Provident Mutual Life Insurance Company of Philadelphia v. Ehrlich, 508 F.2d 129 (3rd Cir. 1975). The record herein reveals no extenuating circumstances which would allow us to find substantial compliance on the part of the deceased insured.

It is well settled that a change of beneficiary is valid even though notice is not received before the death of the insured if every reasonable effort is made to comply with the policy requirements. Breckline v. Metropolitan Life Insurance Company, 406 Pa. 573, 178 A.2d 748, 2 A.L.R.3d 1135 (1962). The appellant in the instant case relies on, as such notice, a letter sent by his attorney to the Reading Company which enclosed a copy of the will and demanded payment of the proceeds of the policy. The letter was not a notice to change the beneficiary, but assumed that the change had been accomplished by the will. In light of the precedent set forth above, such an assumption was erroneous. As the insured did not substantially comply with the policy provisions, neither the letter nor the will, nor both together, could act as notice of a change of beneficiary.

Appellant’s claim is further abrogated by the fact that the insured complied with the policy provisions on two prior occasions. That fact clearly demonstrates the insured’s knowledge of policy provisions regarding the mode required to change a beneficiary. An assumption that he intended to change the beneficiary by way of a holographic will is farfetched under those circumstances.

Lastly, the cases from foreign jurisdictions cited by appellant in his brief to buttress his claim that we should allow a will to work a change in beneficiary are distinguishable. In those jurisdictions which follow the principle of substantial compliance, as we do, the courts therein accepted the will as notice of a change of beneficiary in light of extenuating factual circumstances. As noted earlier, we find no such extenuating circumstances herein. Furthermore, those jurisdictions more often than not required specific language as to the policy in question in order to work a change of beneficiary. The language contained in the will here in question is general and ambiguous. We, therefore, find no support for appellant’s arguments in any of those cases.

Accordingly, we affirm the order of the lower court.


text:
    434 A.2d 128
    COMMONWEALTH of Pennsylvania v. Norvell Lee SHERARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1980.
    Filed Aug. 14, 1981.
    Petition for Allowance of Appeal Denied Nov. 3, 1981.

      Bruce D. Foreman, Harrisburg, for appellant.
    Marion E. MacIntyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, P. J., WATKINS and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Appellant takes this appeal from the lower court’s denial of his Post Conviction Hearing Act, hereinafter PCHA, petition without a hearing. The order of the lower court is affirmed for the reasons set forth below.

On September 10, 1973, appellant was arraigned on a charge of prison breach, at which time he entered a plea of not guilty and requested a jury trial. On the date set for trial, October 4, 1973, appellant withdrew his plea of not guilty and entered a plea of guilty to the charge. Following a thorough colloquy, he was sentenced to a term of imprisonment of one to two years to begin and be computed from the expiration of the ten to twenty year sentence he was and is serving, and to run consecutively thereto. No motion to withdraw the guilty plea was filed nor was a direct appeal taken. Appellant subsequently filed pro se and supplemental PCHA petitions during November, 1978, alleging unlawful inducement of his guilty plea and ineffective assistance of trial counsel.

In denying appellant’s petitions without a hearing, the Honorable William W. Caldwell found that the allegations raised were unsupported by the record. A PCHA hearing may be denied if it is determined that the claims set forth in the petition are unsupportable by the record and frivolous. Commonwealth v. Cimaszewski, 234 Pa.Super. 299, 339 A.2d 95 (1975). A review of the record as it relates to appellant’s PCHA claims results in a determination that the lower court’s summary dismissal of appellant’s petition was proper.

Appellant’s first allegation is that the evidence produced in support of his guilty plea did not establish the offense of prison breach. He claims that, therefore, his guilty plea should not have been accepted. Perusal of the record compels us to disagree with appellant’s argument. The evidence presented at the guilty plea hearing was as follows:

At approximately 8:00 p. m. on June 3,1973, appellant and three other inmates of Dauphin County Prison were observed crouching on a catwalk above the kitchen area, a restricted area, by another inmate who reported it to an on duty guard. A search disclosed that there was one inmate in the kitchen area proper, and appellant and the remaining two inmates were found on the catwalk. The guards’ search also revealed a homemade key in the lock of the door securing the cell block area in which all four inmates were supposed to be confined. During the hearing, appellant freely admitted that he was fully aware that he had left the area of confinement and was in a restricted area in which, under prison rules, he was not permitted to be. He also admitted that he knew that once in the restricted area, he would have access to the outside.

Section 309 of the 1939 Penal Code, 18 P.S. § 4309, which appellant was charged with violating, stated that:

“Any person undergoing imprisonment whether before or after conviction, who breaks prison or escapes, or shall break prison although no escape is actually made, is guilty of prison breach...”

It is clear, based upon the statutory language and the facts as attested to at the guilty plea hearing, that all of the elements for prison breach were established. Appellant’s guilty plea was, therefore, properly accepted and no eviden-tiary hearing was necessary to determine the propriety of that acceptance.

Appellant’s second allegation involves the effectiveness of his trial counsel. He claims that his trial counsel was ineffective in failing to advise him of the required proof for conviction of prison breach, and in encouraging him to plead guilty despite the purported lack of sufficient evidence to establish the offense. We disagree. As discussed above, the evidence conclusively demonstrates that each element of the crime could have been and was satisfied. As to being advised of the proof required for conviction of the offense, appellant was so advised on the record by the hearing court and by defense counsel.

During the colloquy, defense counsel asked appellant: Mr. Barto (Defense Counsel): “Do you understand the full impact of the charge that’s been brought against you, that you did try to leave Dauphin County Prison while awaiting trial?”
Appellant: “Yes.”

Later, the lower court directed a question to appellant:

The Court: “By pleading guilty, you are giving up that protection, and you are admitting that you tried to escape from jail.”
Appellant: “Yes.”
The Court: “Do you understand that?”
Appellant: “Yes.”

Though appellant did then comment that his intention was not to leave the jail, he admitted, as noted earlier herein, that he knew he was in a restricted area, impermissibly so., and that he would have access to the outside. Furthermore, the prosecution subsequently noted that this action alone established the crime of prison breach.

After further questioning, the lower court queried,
The Court: “But you are admitting that what you did legally does constitute the crime of prison breach?” Appellant: “I was in a restricted area, yes.”

From the above dialogue, it is evident that appellant knew he had exceeded the bounds of lawful confinement in direct violation of 18 P.S. § 4309. See, Commonwealth v. Schwartz, 251 Pa.Super. 36, 379 A.2d 319 (1977).

It is unclear what elements of the offense appellant would have had clarified. Appellant was incarcerated, he left his legally permissive area, and entered a restricted one without permission or authority. All of these elements were reviewed in the lower court’s conversation with appellant. We are therefore satisfied that appellant was fully advised of and understood the nature of the charge and the requisite proof for conviction. Consequently, defense counsel cannot be deemed ineffective as the evidence was sufficient to establish the offense, and appellant was fully advised of the nature of the crime. A review of the record and the law as it stood at that time evinces that defense counsel’s representation was effective. See, e. g., Commonwealth v. Weathers EL, 485 Pa. 28, 400 A.2d 1295 (1979).

Lastly, appellant claims that the lower court erred in summarily dismissing his PCHA petition without an evidentiary hearing. The foregoing analyses clearly indicate that appellant’s claims were frivolous and unsupported by the record. The lower court, therefore, properly dismissed appellant’s petition without an evidentiary hearing. Commonwealth v. Cimaszewski, supra.

Order affirmed.

CERCONE, President Judge, dissents.

      . Post Conviction Hearing Act, Act 1966, January 25, P.L. 1580 (1965), 19 P.S. § 1180-1 et seq. Repealed 1978, April 28, P.L. 202, No. 53, § 2(a) [1397], effective June 27, 1980, now implemented by Pa.R.Crim.P., Rules 1501 through 1506.

      . 18 P.S. § 4309, 1939, June 24, P.L. 872, § 309. Replaced by 18 Pa.C.S.A. § 5121, 1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973.


author: PER CURIAM:

text:
    434 A.2d 130
    COMMONWEALTH ex rel. Victoria A. OXENREIDER v. Leslie C. OXENREIDER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1980.
    Filed Aug. 14, 1981.

      Paul R. Ober, Reading, for appellant.
    Eugene C. LaManna, Reading, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

The dispute in this case involves the custody of the parties’ two daughters. The oldest daughter was born in December, 1969 and the youngest in March, 1972. In July of 1976 Victoria Oxenreider left the marital domicile. The girls remained with their father. The parents were divorced in January, 1977 and both have remarried. Victoria Oxenreider, now Victoria Gift, lives with her husband in an apartment. Leslie Oxenreider lives in the marital home with his daughters, his wife Sharon and her child from a previous marriage. Sharon and Leslie Oxenreider also have a child of their own. The lower court awarded custody to the mother, but this order has been stayed pending this appeal. We reverse.

The lower court acknowledged that there are qualitative and quantitative differences in the parties’ residences, but concluded that both facilities are suitable for the children. The father’s home consists of a living room, dining room, kitchen, bath and three bedrooms, one of which is shared by the two girls. There is a substantial yard where the children have a sliding board and other play things. Also a playground is located one-half block from the home.

At the time of her testimony Mrs. Gift and her husband lived in a one-bedroom apartment. During cross-examination Mrs. Gift described the apartment and the play area for children in the apartment complex. The apartment was comprised of a living room, dining room, bath, and small kitchen. The rooms were described as a “nice size”. There is no playground in the complex, but children played on grassy areas between buildings. On weekends when Mrs. Gift had visitation with her daughters five people occupied the apartment, including her husband’s daughter. Following the mother’s testimony, however, a stipulation was placed in the record to the fact that Mrs. Gift had moved into a two-bedroom apartment in the same complex.

There will be no change in schooling arrangements whether custody is awarded to the mother or father. Although employed at the time of the hearing, Mrs. Gift stated that she would quit her job if awarded custody. Mr. Oxenreider works full-time. He is home by three-thirty-five every afternoon. Mrs. Oxenreider is not employed.

In awarding custody to the mother the lower court relied, in part, on the presumption that “a mother may be better able to arrange for the vicissitudes of any female child growing through puberty to womanhood.” The court cited Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa.Super. 114, 118-119, 245 A.2d 663, 665 (1978) (dissenting opinion by Hoffman, J.) and Scheeler v. Rudy, 2 D&C 3rd 772, 776 (1977) in support of this presumption. In Scheeler it was stated that despite the demise of the tender years presumption, another guideline remains for determining custody:

This guideline is well described by Judge Hoffman in his dissenting opinion in Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa.Super. 114, 118-119, 245 A.2d 663, 665 (1968): “The age and sex of the child is a keystone factor in any custody determination. In this case, we are dealing with young daughters. Our Court has, in such cases, followed a time-honored rule that the care and custody of a child of tender years, especially if the child is a girl, should be committed to the mother. Urbani v. Bates, 395 Pa. 187 149 A.2d 644 (1959); Commonwealth ex rel. Horton v. Burke, 190 Pa.Super. 392, 154 A.2d 255 (1959). Our Court affords great credence to this concept because experience has taught us that young girls need maternal care and affection. A mother can explain the processes of maturation and sexual knowledge to growing daughters better than a father. Experience has also taught us that a girl’s psychological and social adjustments to her environment are more easily made through the confidence of a mother-daughter relationship. As a result of this knowledge, we have often reiterated that, absent compelling reasons, the needs of a daughter of tender years are best served by awarding custody to the mother. Commonwealth ex rel. Keller v. Keller, 90 Pa.Super. 357 (1927); Commonwealth ex rel. Blatt v. Blatt, 168 Pa.Super. 427, 79 A.2d 126 (1951).”
We believe that this guideline remains viable, regardless of the demise of the tender years doctrine, by reason of its logic and the weight of experience.

Id. This concept, referred to by appellant as the “tender sex presumption”, has been specifically discredited by this court in the recent case of Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981). In a child custody case the burden of proof is shared equally by the parents. Rummel v. Rummel, 263 Pa.Super. 97, 100, 397 A.2d 13, 15 (1979). Language in Garrity v. Garrity, 268 Pa.Super. 217, 224 n.4, 407 A.2d 1323, 1327 n.4 (1979), referring to the demise of the tender years presumption is no less applicable here: “In custody cases, the court may no longer simplify the complex factual variables by resorting to sweeping presumptions, but must diligently inquire into all pertinent evidence.” Unfortunately, in the instant case the lower court placed undue emphasis on the children’s sex while failing to fully consider factors of great importance to their welfare.

The sole issue before us is the best interest of the children. Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976) . As this court has often stated the scope of review we will exercise in a child custody dispute is of the broadest type. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); In Re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979); In Re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). Because of the Commonwealth’s overriding concern for the well-being of its children, we are required to render an independent judgment based on the evidence and testimony and make such order on the merits of the case as to effect a just result. In Re Custody of White, supra, Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa.Super. 114, 245 A.2d 663 (1968). So as to facilitate this broad review, the hearing court must provide this court not only with a complete record, Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974), but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision, In Re Custody of White, supra, Martinchek v. Martinchek, 262 Pa.Super. 346, 396 A.2d 788 (1979); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977) ; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976).

The opinion of the lower court falls far short of these oft-stated requirements. The opinion is a scant six pages, much of which is repetitious. The court’s statements are mere conclusions; no analysis of the testimony of the several witnesses who were examined is provided. As will be seen below, factors which this court has held to be important in determining the child’s best interests were not fully considered by the court below. However, despite the absence of a comprehensive opinion, the record in the instant case is sufficiently complete to permit this court to consider the merits. We note that such review is only possible because the essential facts are not in dispute. See Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980).

The greatest deficiency in the lower court’s opinion is its failure to fully address the significance of maintaining the status quo on the children’s development. It is established that continued residence of children may be controlling. Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300 (1949); Pamela J.K. v. Roger D.J., supra; Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977); Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Super. 167, 138 A.2d 225 (1958). At the time of the hearing below the children had been in their father’s care for two and one-half years. Now five years have elapsed since the mother removed herself from the marital home. It has been four years since Mr. Oxenreider brought his second wife and her son, Eric, into the home.

Given this situation, the case of Pamela J.K. v. Roger D.J., supra, is instructive. In that case the child, Juliet, had been living with her father for a period of approximately five years. The father had remarried prior to assuming custody of Juliet, and his second wife had a son by a prior marriage. The father adopted the son, who was approximately eighteen months younger than Juliet.

Because the father had deliberately discouraged and thwarted the visitation of the mother with her child, the mother sought custody. There was no question that the father deliberately obstructed the mother’s right to visit her daughter. The lower court awarded custody to the mother on the basis of the child’s resemblance to the mother, concluding that because the child manifested attributes of her mother, only the mother could offer Juliet the “guidance, support and encouragement whereby she can blossom in her individual development.” On appeal this court held that there was no competent evidence to support the lower court’s holding that the child’s resemblance to the mother should be controlling as to custody. Moreover, this court found the lower court’s opinion to be insufficient because it failed to consider the effects on Juliet of removal from her father’s household. Despite the insufficiency of the lower court’s opinion, we held that the record was sufficiently complete to enable us to determine where the merits of the appeal lie. 277 Pa.Super. at 589, 419 A.2d at 1308. Exercising the very broad scope of review permitted this court in child custody cases, we reversed the lower court and placed custody of Juliet with her father.

In addressing the merits this court stated that there was no question as to the fitness of either parent. It was not disputed that the mother and her husband could furnish a suitable home for Juliet and provide “all the amenities a little girl could hope for”. Nor was it disputed that the mother would foster Juliet’s relationship with her father. However, this court held that the father’s deliberate obstruction of the mother’s right to visit her daughter was outweighed by the benefits that would result from continuing Juliet in her father’s household, and awarded custody to the father on this basis alone.

In the instant case the children are happy and well-cared for in their father’s home. Stacey, the eldest daughter, receives consistently good grades in school. (Tara was not of school age at the time of the hearing). Mr. Oxenreider provides for his daughter’s moral development, and he himself serves as a deacon and instructor in their church. There is no question that he spends a great deal of time with his children and enjoys being a parent.

Moreover, there was much testimony that even before the parents separated the girls had a closer relationship with the father than with the mother. Mrs. Papich, a neighbor, stated that the father did most of the cooking and cleaning, that the children were more affectionate with the father. Mrs. Papich also testified that the children are cleaner, and that the home was much nicer since the separation. Similar testimony was heard from Mrs. Ludwig, a nurse who knew the mother as a child and was reacquainted with the mother following the birth of the eldest girl. Mrs. Ludwig had come to the home to instruct the mother in child care. She stated, however, that the mother was too timid and that the father performed most of the feeding and changing duties when Stacey was an infant. Later, when they visited in each other’s homes, Mrs. Ludwig noticed that the girls went to the father more than to the mother.

Mr. Oxenreider testified that following the separation he cared for all of the girls needs—preparing meals, bathing them, cleaning. Since his remarriage in July, 1977 the new Mrs. Oxenreider shares the responsibility for these tasks. Reverend Wagner, the pastor of the church Mr. Oxenreider attends and a frequent visitor of the Oxenreiders, testified concerning the Oxenreider home. He stated that the girls and Mrs. Oxenreider care for each other very much and that, while Mrs. Oxenreider has not tried to replace their mother, she satisfies their need for a mother in the home. Pastor Wagner also stated that the girls and Mrs. Oxenreider’s son, Eric, have accepted one another as siblings and play very well together.

In addressing this issue in its opinion, the lower court simply states: “A court does not lightly set aside an on-going custodial arrangement. However, here past circumstances have been altered by the remarriage of the parties and the subsequent birth to one of the natural parents of another child.” The court seems to believe that by the remarriage of Mr. Oxenreider and the birth of his child, the bonds of affection between the father and daughters are somehow lessened. There is no support for this in either case law or human experience. It is of great importance to the children that we consider not only the bonds of affection between them and their father and the possible effects on the girls of sundering those bonds, but the attachment of the girls to the father’s wife and to the other children in the household. See Pamela J.K. v. Roger D.J., supra; Commonwealth ex rel. Cutler v. Cutler, supra. For four years Eric has lived with the girls as a brother, now the girls have a half-brother or sister that they have been with since its birth. It is to their advantage that such relationships be continued. See Pamela J.K. v. Roger D.J., supra; Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Super. 167, 138 A.2d 255 (1958).

Another short-coming in the lower court opinion is that certain findings of facts are not supported by the evidence. Although the hearing court as a fact-finder must determine the weight to be given testimony and the credibility of witnesses, its findings must be supported by competent evidence. Rupp v. Rupp, 268 Pa.Super. 467, 408 A.2d 883 (1979); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976).

First, the court found: “The principal confrontation, a state not uncommon in habeas corpus custody matters, focuses here between the natural mother and the father’s wife, Sherry.” Later in the opinion this “principal confrontation” is described as “mild though discernible”. The only witness to testify concerning the relationship between Mrs. Gift and Mrs. Oxenreider was Mrs. Oxenreider who specifically denied that their relationship was less than cordial. Even if the lower court disbelieved Mrs. Oxenreider, there is no evidence whatsoever that the children were affected by this relationship. In fact there is ample evidence that is uncontradicted that Mrs. Oxenreider encouraged the girls to maintain a close relationship with their mother. For example, she invited the mother to Stacey’s birthday party; she speaks to the mother every Tuesday when the mother telephones the girls; she invites the mother in when she picks up her children. Also Mr. and Mrs. Oxenreider have agreed to permit visitation every Thursday night although these visits had not been provided for in their visitation schedule.

Secondly, the court found: “The father and his wife on occasions arbitrarily and unilaterally cancelled rights of visitation which existed in the natural mother.” According to the record there was one cancellation of visitation over a period in excess of two years. In that instance a major snow storm had occurred leaving fifteen to eighteen inches of snow. The father’s work had been cancelled, the roads were not plowed, and the father was simply not willing to take a chance that the girls would be in an accident.

Finally, the court stated that the father’s wife “instructed the children to call her ‘mother’ or ‘mommy’.” Once again Mrs. Oxenreider was the only witness to testify concerning this finding of fact. She testified that she was concerned because her son Eric had started to call her Sherry and because she was expecting another child. When she told the girls that they should call her mom, they stated that their mother would be upset if they did so. Mrs. Oxenreider told the girls she would speak to their mother. After a brief discussion with the mother, Mrs. Oxenreider assumed that she had acquiesced because the girls then began calling her “mom”. Regardless of whether this evidence supports the court’s statement that Mrs. Oxenreider “instructed” the children to call her “mother”, there is no evidence that this incident was in any way harmful to the children. Neither the findings by the lower court nor the record supports a conclusion that Mrs. Oxenreider has attempted to usurp the mother’s role or to limit the mother’s involvement in her daughters’ lives. We note, however, that in Pamela J.K. v. Roger D.J., discussed at length supra, a much more serious confrontation between the natural parents caused by the custodial parent, which did interfere with the mother’s right to a place in her child’s life, was held not to overcome the child’s need for stability.

Because of the continued residence of the children with their father and the importance of stability in a young child’s life, we reverse the lower court and award custody to the father. We note that this court has found the maintenance of the status quo to be decisive even when custody has been in one parent for a significantly shorter time period. See e. g. Commonwealth ex rel. Cutler v. Cutler, supra (the father provided the primary home for over one year): In Re Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989 (1978) (the father provided a home for his son for approximately two-and-one-half years).

Order of the lower court is reversed and custody awarded to appellant Leslie C. Oxenreider.

      . Testimony was initially heard in this matter in June, 1977.
      The hearings were not concluded, however, until February, 1978 and the lower court opinion was not filed until November, 1979. Although the cause of the delay is not explained, the court does state in its opinion that no changed circumstances exist as to require further hearings. Neither party takes issue with this determination.


text:
    434 A.2d 136
    Edward SPRUK v. UNITED LABORATORIES OF CLEVELAND, United Laboratories of W. Pa., Inc., Ronald Kasden, Michael B. Goldfarb, M.D., Ross Semboli; Aurel Medical Center, Inc., Ramon Pla, M.D., Arnold J. Snitzer, M.D., Francis Horrigan, M.D., Jose Somera, M.D., Leonardo Delrosario, M.D. and Tony Rich Hair Research Clinics. Appeal of Francis HORRIGAN, M.D.
    Superior Court of Pennsylvania.
    Submitted Nov. 13, 1980.
    Filed Aug. 14, 1981.

      James A. Wood, Pittsburgh, for appellants.
    Stanley M. Stein, Pittsburgh, for appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   PER CURIAM:

This is an action in trespass based upon a complaint in which Edward Spruk is plaintiff-appellee and Dr. Francis Horrigan is, among others, defendant-appellant.

Appellant filed preliminary objections raising two questions: (1) a lack of jurisdiction in Common Pleas Court to hear the case, and (2) a lack of power in a Court of Common Pleas to transfer a case to the arbitration panels pursuant to the Health Care Services Malpractice Act, 40 P.S. § 1301.101 et seq.

We reverse.

Appellee, a resident of Pennsylvania, has alleged that beginning in August, 1977, Dr. Horrigan was (1) negligent in his supervision and performance of certain medical procedures, including the Dermis Inversion Process; (2) that he failed to obtain informed consent from the plaintiff-appel-lee; and (3) that defendant-appellant failed to meet the standards of his profession in his treatment of the appellee.

The court (Papadakos, A. J.) by order dated January 2, 1980, transferred the record together with a certified copy of the docket entries upon payment of the costs by plaintiff to the Administrator for Arbitration Panels for Health Care.

Appellants raise only one question, whether a Court of Common Pleas may transfer a case brought by a plaintiff against a health care provider concerning medical performance subsequent to January 13, 1976 to the Arbitration Panels for Health Care.

In Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), our Supreme Court declared Section 309 of the Act unconstitutional “because the delays involved in processing these claims under the prescribed procedures set up under the Act result in an oppressive delay and impermissibly infringes [sic] upon the constitutional right to a jury.”

In light of the holding in Mattos, the order transferring the instant case to the health care arbitration panels is reversed and the case is remanded to the Court of Common Pleas of Allegheny County for further proceedings. Smith v. Barclay, M.D., 286 Pa.Super. 510, 429 A.2d 438 (1981).