author: MONTEMURO, Judge: DEL SOLE, Judge,

text:
    580 A.2d 1115
    Benjamin A. HERR, Administrator of the Estate of Eric B. Herr, and Benjamin A. Herr and Cornelia R. Herr, In their Own Right, Appellants, v. Paul BOOTEN, John Raymer, Robb Aspril, Jr. and Alex Orolyn, Appellees.
    Superior Court of Pennsylvania.
    Argued May 8, 1990.
    Filed Sept. 25, 1990.

      Thomas W. Hall, Lampeter, for appellants.
    Wiley P. Parker, Lebanon, for Aspril, appellee.

      Before CAVANAUGH, ROWLEY, McEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

This appeal is based upon the sad and tragic death of a very young man, Eric B. Herr. At the time of his death, Eric was a college student at the West Chester University. Eric was born on January 17, 1963. On January 17, 1984, Eric’s college roommates entered his bedroom and discovered that Eric had died during the night. The cause of his death was acute ethanol poisoning. A subsequent autopsy revealed Eric’s blood alcohol content to be .64% at the time of the autopsy.

This litigation was commenced in March of 1986 by Eric’s parents in their own right, and by Eric’s father, Benjamin A. Herr, as Administrator of the Estate of Eric B. Herr. The defendants include Eric’s college roommates: Paul Booten, John Raymer, and Robb Aspril, Jr. The fourth defendant, Alex Orolyn, did not reside with Eric at college but he was a college acquaintance.

It is undisputed that in the afternoon of January 16, 1984, Eric and his three roommates decided to buy beer to celebrate Eric’s impending twenty-first birthday. All four of the young men contributed money toward the purchase of the beer. Defendant Raymer drove Eric to a beer distributorship where several cases of beer were purchased. The roommates began drinking the beer in their apartment in the late afternoon of January 16, 1984. Later in the evening, defendant Orolyn arrived. Eric, along with Orolyn and Raymer, then left the apartment and attended a party at a fellow student’s house where they consumed more beer. They later left this party to stop at Orolyn’s apartment in order to obtain a nearly full bottle of Jack Daniels whiskey which Orolyn gave to Eric as a birthday present. When the group returned to Eric’s apartment, which he shared with Booten, Raymer, and Aspril, other people had arrived to celebrate Eric’s birthday. That evening, Eric Herr consumed most of the bottle of whiskey himself, apparently in two sustained gulps. It appears to be undisputed that the first gulp occurred before midnight.

The present action is based in tort. It is claimed that the defendants committed the intentional tort of battery by providing alcohol to Eric. Secondly, it is claimed that the defendants were negligent in providing Eric with alcohol, challenging or encouraging him to drink the alcohol, and then failing to render care when his physical condition became serious. The trial court entered summary judgment in favor of the defendants, concluding that no cause of action for battery or negligence had been set forth as a matter of law. We affirm in part and reverse in part.

In its Opinion of February 7, 1989, the trial court aptly set forth the standard of review which must be employed when considering a motion for summary judgment:

Summary judgment should be entered only “... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law ...” “Pa. R.C.P. No. 1035(b).” In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment. Yaindl v. Ingersoll-Rand Company, 281 Pa.Super. 560, 422 A.2d 611 (1980).

Op. of Trial Court, February 7, 1989, at 5.

We agree with the trial court’s conclusion that no cause of action can be established for battery in the present case, even when the evidence is viewed in the light most favorable to the non-moving party. “As traditionally stated, the elements of the tort of battery are ‘a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent.’ Prosser & Keeton, Law of Torts, at 39 (5th ed. 1984).” Levenson v. Souser, 384 Pa.Super. 132, 146, 557 A.2d 1081, 1088 (1989). There was no “harmful contact” or “offensive touching” with the body of Eric Herr so as to give rise to a cause of action for battery in the present case. We are unwilling to view the supplying of an alcoholic beverage to a person as an act intending to cause “offensive or harmful bodily contact.”

“A bodily contact is offensive if it offends a reasonable sense of personal dignity." Restatement (Second) of Torts § 19 (emphasis added). Implicit in the tort of battery is the recognition that an individual has a right to be free from unwanted and offensive or harmful intrusions upon his own body. The tort of battery has traditionally been employed to redress this precise grievance. The essence of the tort “consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of [the plaintiff’s] person____” See RESTATEMENT (Second) OF TORTS § 18, Comment c. Thus, the Restatement recognizes that an intrusion upon the plaintiff’s physical or personal dignity does occur where the defendant “throws a substance, such as water, upon the [plaintiff] or if [the defendant] sets a dog upon him” even though the defendant and the plaintiff have not physically touched each other. Id. Additionally, “if the actor daubs with filth a towel which he expects another to use in wiping his face with the expectation that the other will smear his face with it and the other does so, the actor is liable as fully as though he had directly thrown the filth in the other’s face or had otherwise smeared his face with it.” Id. Although the supplying of alcohol to a person may be improper or contrary to the law because the person is a minor or, perhaps, because he is already visibly intoxicated, it is not an act which impinges upon that individual’s sense of physical dignity or inviolability. Such an expansion of the traditional notion of battery has never been sanctioned by the courts of this Commonwealth. Consequently, we affirm the entry of summary judgment in favor of the defendants as to the battery cause of action.

In entering summary judgment in favor of the defendants as to the negligence claims, the trial court first determined that Eric B. Herr was twenty-one years of age, and thus an adult, at the time the defendants participated in the distribution of alcohol to him. This is a critical determination. The Pennsylvania Supreme Court in Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983), was presented with the following facts:

On or about May 8, 1978, Michael Klein and his family were driving on the Pennsylvania Turnpike when they were struck in the rear by a vehicle which was driven by Mark Raysinger. Prior to the collision Raysinger had been a patron of the Neptune Inn, where he had consumed an undisclosed amount of alcohol. Prior thereto, Mr. Raysinger had been served beer and other alcoholic beverages at the home of the Gilligans. It is alleged that Raysinger was visibly intoxicated at the time he was served by the Gilligans, and that it was known at the time that Raysinger would be driving. As a consequence, appellants’ claim that the Gilligans are liable in negligence for the injuries they sustained in the accident.

Id., 504 Pa. at 144, 470 A.2d at 508. The Pennsylvania Supreme Court held that “there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.” Id., 504 Pa. at 148, 470 A.2d at 511. The Klein Court relied upon the common law rule that in the case of an “ordinary able bodied man it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.” Id.

The Klein decision stands in sharp contrast to a decision rendered by the Pennsylvania Supreme Court on the same day: Congini v. Portersville Valve Company, 504 Pa. 157, 470 A.2d 515 (1983). In Congini, an eighteen year old employee of Portersville Valve Company (“Portersville”) was injured when, in an intoxicated condition, he drove his vehicle into the rear of another vehicle. Prior to the accident, the employee had attended a Christmas party held by Portersville where he was served alcoholic beverages. The Congini Court was compelled to depart from the common law rule it had relied upon in Klein, recognizing that:

“... our legislature has made a legislative judgment that persons under twenty-one years of age are incompetent to handle alcohol. Under Section 6308 of the Crimes Code 18 Pa.C.S. § 6308, a person “less than 21 years of age” commits a summary offense if he “attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages.” Furthermore, under Section 306 of the Crimes Code, 18 Pa. C.S.A. § 306, an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor.

Congini, supra, 504 Pa. at 161, 470 A.2d at 517. The Supreme Court thus held that the serving of alcohol to a person less than twenty-one years of age is negligent per se. Id. (citing Restatement (Second) of Torts § 286). The affirmative action on the part of the defendant which gives rise to this negligence is the “furnishing of intoxicants to a class of persons legislatively determined to be incompetent to handle its effects.” Id., 504 Pa. at 163, 470 A.2d at 518. See also Matthews v. Konieczny, 515 Pa. 106, 527 A.2d 508 (1987) (the service of alcohol to a minor in violation of the statutorily dictated duty under the Crimes Code forms the basis of the finding of negligence per se); Orner v. Mallick, 515 Pa. 132, 527 A.2d 521 (1987) (breach of duty of care in serving alcohol to minor guest occurs with the furnishing of any alcohol to a minor, not just an amount sufficient to intoxicate the minor).

In determining that Eric Herr was twenty-one years of age during the day preceding his twenty-first birthday, the trial court relied upon a general rule of common law in this jurisdiction which provides that a person is deemed to attain a given age on the day before his or her birthday. See Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976); Gerson v. Daly, 337 Pa. 346, 11 A.2d 148 (1940). While this general rule of common lav? remains a viable one, it is not applicable in the instant case. The negligence per se which was first recognized by the Congini decision is specifically and expressly based upon a legislative enactment, Section 6308 of the Crimes Code, and must be construed consistently therewith. See Orner v. Mallick, supra (Congini sanctioned in the civil law what the criminal law prohibits: the service of alcohol to minors). There is another way to state the trial court’s holding in this case. According to the trial court, if an individual, on the day prior to his twenty-first birthday, purchases and consumes liquor or malt or brewed beverages, he has not violated any criminal law in Pennsylvania. Further, if a liquor store or tavern sells alcohol to an individual on the day before his twenty-first birthday, this is not a violation of 18 Pa.C.S.A. § 6310.1(a): “... a person commits a misdemeanor of the third degree if he intentionally and knowingly sells or intentionally and knowingly furnishes, or purchases with the intent to sell or furnish, any liquor or malt or brewed beverages to a person who is less than 21 years of age.” In the present case, we are mindful that it is common knowledge and common practice that an individual may not legally be served alcohol, or purchase or consume alcohol, until the day of his twenty-first birthday. When an individual is “carded” at a liquor store or tavern, it is common knowledge that alcohol will not be served to him or sold to him unless he has proof that it is the twenty-first anniversary of his birth, his twenty-first birthday, or after.

It is axiomatic that legislative intent is the polestar of statutory construction. In drafting the criminal statutes at issue in the case at bar, we are convinced that the Legislature was cognizant of this commonly understood and practiced rule for determining the legal age for the purchase and consumption of alcohol. Pursuant to 1 Pa.C.S.A. § 1921, we are bound to presume that the General Assembly did not “intend a result that is absurd, impossible of execution or unreasonable.” Further, we are permitted to examine the practical consequences of a particular interpretation.” Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1984) (citations omitted). Our Legislature did not intend 18 Pa. C.S.A. § 6308 to be interpreted in a manner which ignores, and indeed contravenes, the commonly accepted and practiced method for determining the legal age for the purchase and consumption of alcohol.

Although the common law rule that one is deemed to attain a given age on the day before his birthday has been found controlling in other circumstances, it is not relevant in the proper construction of 18 Pa. C.S.A. § 6308. As courts are bound to construe a particular statutory enactment in light of the intent of the Legislature, the common law cannot be employed to override the reasonable intent of the Legislature in enacting a statute. This was the trial court’s error in the case sub judice. We note that our recent decision in Commonwealth v. Iafrate, 385 Pa.Super. 579, 561 A.2d 1244 (1989) allacatur granted, — Pa.-, 575 A.2d 109 (1990) is clearly distinguishable. In Iafrate, we relied upon the common law rule to construe 42 Pa. C.S.A. § 6322(a), which states, “if it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter [the Juvenile Act], shall immediately become applicable.” A child, for the purposes of the Juvenile Act, is an individual who is under eighteen years of age. See 42 Pa. C.S.A. § 6302. Unlike the case at bar, in Iafrate, there was no common and accepted usage regarding when an individual attained the age of eighteen for the specific purposes of the Juvenile Act of which the Legislature would have presumably been aware when enacting 42 Pa. C.S.A. § 6322(a). Consequently, this Court quite correctly employed the common law in construing the statute at issue in Iafrate. It is axiomatic, however, that each statute is unique, and that the legislative intent and circumstances underlying each statute is also unique. The statute construed in Iafrate has no relation to the statutes under consideration in the present case, which were enacted to prevent the “furnishing of intoxicants to a class of persons legislatively determined to be incompetent to handle its effects.” Congini v. Portersville Valve Company, 504 Pa. 157, 161, 470 A.2d 515, 517 (1983).

Based upon our view of the correct statutory construction of Section 6308 of the Crimes Code, as well as Section 6310.1, we are firmly convinced that an individual born on January 17, 1963, such as Eric B. Herr, could not have legally purchased or consumed alcohol on January 16, 1984; but he could have legally done so on the following day, the day of his birth, January 17. Thus, the furnishing of alcohol to Eric B. Herr on January 16, 1983, amounted to negligence per se as a matter of law.

In vacating the summary judgment which was entered in favor of the defendants in this case, we express no opinion concerning the ultimate finding of liability. A social host may assert, as a defense, the minor’s contributory negligence. Questions of accusation as between the appellees and as between the appellees vis-a-vis Eric Herr must be resolved in the trial court by the finder of fact. Consequently, the summary judgment entered in favor of the defendants as to the cause of action in negligence for furnishing alcohol to Eric Herr is vacated and reversed.

Further, we recognize that the appellees argue that Eric Herr assumed the risk of drinking an excessive amount of alcohol, and that “it is- well-established under Pennsylvania law that a plaintiff fails to establish the element of duty essential to a prima facie case of negligence where the evidence demonstrates that the dangerous condition was known or obvious to the plaintiff.” Brief for Appellees at 43. See Ferencz v. Milie, 517 Pa. 141, 535 A.2d 59 (1987) (if ice patch in hospital parking lot was obvious and avoidable, the hospital would have owed the plaintiff no duty to remove it because of the assumption of the risk doctrine); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983) (a holding that a risk has been assumed is in many cases tantamount to a determination that, as a matter of law, the defendant owed the plaintiff no duty); Johnson by Johnson v. Walker, 376 Pa.Super. 302, 545 A.2d 947 (1988); Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 538 A.2d 509 (1988) (en banc) (the legal consequences of plaintiffs assumption of the risk was to relieve the defendants of any duty towards the plaintiff). Appellees’ claim that Eric Herr assumed the risk does not result in a determination that the appellees owed no duty to Eric Herr as a matter of law. The appellees are negligent per se under the Congini decision, thus it is presumed as a matter of law that appellees had a duty of care to Eric Herr and, further, that appellees breached this duty of care. Given this, the appellees cannot employ an assumption of the risk analysis to defeat an element of the plaintiffs prima facie case which is established at the outset as a matter of law.

Finally, we must address appellants’ claim that the trial court erred in entering summary judgment in favor of the appellees as to the claim brought under the following section of the RESTATEMENT (Second) OF TORTS:

If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

RESTATEMENT (Second) OF TORTS § 322. The appellants rely again upon Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959), wherein it was alleged that liability should lie because the defendant Bigan had failed to take steps to rescue Yania from the water. The Supreme Court stated:

The mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal, although a moral, obligation or duty to go to his rescue unless Bigan was legally responsible, in whole or in part, for placing Yania in the perilous position. Restatement, Torts § 314. Cf. Restatement, Torts, § 322____ The complaint does not aver any facts which impose upon Bigan legal responsibility for placing Yania in the dangerous position in the water and, absent such legal responsibility, the law imposes on Bigan no duty of rescue.

Id., 397 Pa. at 321-322, 155 A.2d at 346. In reliance upon the clear language of our Supreme Court in the Yania decision, we now hold that in the instant case, the appellants may claim that a duty was owed on the part of the appellees to exercise reasonable care to prevent further harm to Eric Herr following his consumption of the bottle of whiskey only if appellees are ultimately held liable to some extent for Eric Herr’s death under the Congini decision.

Affirmed in part and reversed in part; remanded for further proceedings consistent with this Opinion. Jurisdiction is relinquished.

CAVANAUGH, McEWEN, FORD ELLIOTT, and OLSZEWSKI, JJ., joined.

DEL SOLE, J., files a dissenting opinion joined by ROWLEY, JOHNSON and HUDOCK, JJ.

DEL SOLE, Judge,

dissenting:

I agree with the majority’s conclusion that no cause of action can be established for battery in the present case. Also, I agree that persons may be found negligent for furnishing alcohol to a minor under the doctrine enunciated in Congini v. Portersville Valve Company, 504 Pa. 157, 470 A.2d 515 (1983). However, I can not agree that Appellees are negligent in providing alcohol to Eric Herr, because he was not a minor when his excessive drinking took place, on the day before his twenty-first birthday.

While I realize that according to popular usage, an individual is not considered to be twenty-one years of age until his or her twenty-first birthday, “It is well established at common law that one is deemed to to attain a given age on the day before his birthday.” Firing v. Kephart, 466 Pa. 560, 353 A.2d 833, 836 n. 5 (1976), citing, Gerson v. Daly, 337 Pa. 346, 11 A.2d 148 (1940); Commonwealth v. Howe, 35 Pa.Super. 554 (1908). The Pennsylvania statutes involved in establishing negligence per se for the service of intoxicating liquors to minors express no criteria for determining when a person attains the age of twenty-one years. It is well established in our case law that, “A change from the common law cannot be presumed; it must appear to have been meant, or it will be held not to have been made.” Central Lithograph Co. v. Eatmor Chocolate Co., 316 Pa. 300, 175 A. 697 (1935). Therefore, the common law rule must apply in determining when a person is twenty-one years old for the purposes of these statutes.

The Pennsylvania Supreme Court recently reaffirmed the application of the Common Law Rule. In In Re: Stout, 521 Pa. 571, 559 A.2d 489 (1989) the Supreme Court was faced with the question of whether Madame Justice Stout would be required to retire under Article V, § 16(b) of the Constitution of the Commonwealth. While the court was determining whether there was a difference between appointed or elected judges for the purposes of mandatory retirement, the court stated as follows:

Reading the related provisions in connection with one another we conclude their proper meaning was that a member of the Pennsylvania judiciary reaches his or her seventieth year, according to the rule of the Common Law, that is on the day before his or her birth date, (See Gerson v. Daly, 337 Pa. 346 11 A.2d 148 (1940)) and that when a jurist reaches the age of seventy years his or her term expires. 521 Pa. at 580, 559 A.2d 489.

Thus, the rule announced in Gerson, supra, has been reaffirmed as recently as 1989.

In the instant case, the day of the alleged negligence was the day preceding Eric Herr’s birthday. Therefore the common law rule is controlling, and Eric Herr was an adult, and was not “less than twenty-one years of age,” at the time defendants supplied alcohol to him.

I agree with the majority that legislative intent is the polestar of statutory construction, and that we are bound to presume that the General Assembly did not intend a result that is absurd, impossible of execution or unreasonable. However, we must also presume that the drafters of the statutes in question were aware of the common law, and if they intended to derogate from it, they would have so specified.

The majority seeks to support its view that the trial court’s holding was improper by stating that if this court were to follow the Common Law Rule, then a liquor store or tavern which sold alcohol to an individual on the day before a twenty-first birthday, would not be in violation of the statute prohibiting sales to minors. (Majority Opinion at 173) I fail to see how this analysis would be unreasonable in light of the fact that the Supreme Court of Pennsylvania has determined that judicial officers attain their age the day before the anniversary date of their birth. On a person’s twenty-first birthday that person is beginning their twenty-second year of life. Therefore, it is not unreasonable, as the Majority would suggest, to allow to purchase alcohol on the day before their twenty-first birthday. While the custom may be that licensees will not serve liquor on that day, they have never been convicted of a crime for doing so.

This court recently affirmed this position in Commonwealth v. Iafrate, 385 Pa.Super. 579, 561 A.2d 1244 (1989). Appellant in Iafrate claimed he was entitled to be tried in Juvenile Court, because he committed the crime the day before his eighteenth birthday, and was legally a “child.” The relevant Pennsylvania statute stated that for the purposes of trial in Juvenile Court, a child was a person under eighteen years of age. We held that because Appellant committed the crime the day preceding his eighteenth birthday, he was deemed to be an adult, and should be tried as an adult.

The majority’s attempts to distinguish the present case from Iafrate are unavailing. The majority states that there is, “no common and accepted usage regarding when an individual attain[s] the age of eighteen for the specific purposes of the Juvenile Act” (Majority Opinion at 174) This is patently unreasonable. The popular or common understanding of when a person attains a given age does not change because the age specified for competency is eighteen, rather than twenty-one.

In the instant case, and in Iafrate, the relevant ages were expressed in similar terms, “less than 21 years of age,” and “under 18 years of age,” respectively, and neither statute stated the criteria for determining when a person reaches the given age. As we stated in Iafrate, we, as an intermediate appellate court, can not decide to change established precedent. It is only the Supreme Court of Pennsylvania and the General Assembly which may overturn the established rule for computing age for the purpose of a given statute.

Since it is clear that Eric Herr was an adult at the time he was supplied with alcoholic beverages, I would hold that the defendants can not be liable as social hosts under the rationale of Klein v. Raysinger, supra.

I further reject Appellants’ claim that a cause of action in negligence is set forth by the allegations that appellees urged or challenged Eric Herr to consume the alcohol which ultimately caused his death. The only authority relied upon for this cause of action is Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959), where an adult coal strip-mining operator had jumped into a water-filled trench at a mining site and had died as a result. It was alleged in the wrongful death and survivor action that followed, that the defendant Bigan, by the employment of verbal coercion caused such a mental impact on the decedent that he lost his freedom of choice and under a compulsion, jumped to his death. The Supreme Court held that such alleged conduct would not constitute actionable negligence when directed to an adult in possession of all his mental faculties. The Court also stated that if the decedent “had been a child of tender years or a person mentally deficient then it is conceivable that taunting and enticement could constitute actionable negligence if it resulted in harm.”

I am unwilling to extend the language cited from Yania to find a cause of action for the Appellees’ alleged “challenging conduct” in the present case. Moreover, it is clear that Eric Herr was not a child of tender years and was not mentally deficient in that he did not suffer from mental retardation or mental disease. On the contrary, Eric Herr was a twenty-one year old college student. Although he may have been intoxicated at the time the other students challenged him to drink a bottle of whiskey, we have held that even in the case of a visibly intoxicated adult, it is the consumption rather than the furnishing of alcohol that is the proximate cause of any subsequent occurrence. Orner v. Mallick, supra, 515 Pa. at 136, 527 A.2d 521.

Finally, I find no error in the trial court’s decision to enter summary judgment in favor of the Appellees on the claim brought under the RESTATEMENT (Second) OF TORTS § 322. This section states:

If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent further harm.

This section of the Restatement was addressed in Yania, supra, 397 Pa. at 322, 155 A.2d 343. In that decision, the court noted that the defendant had no duty to help Mr. Yania unless the defendant were legally responsible for placing the victim in the perilous position. If, however, he voluntarily placed himself in a position of danger, then there was no one to blame but himself.

Because Eric Herr was an adult at the time, the other students were not legally responsible for placing him in a dangerous situation, which was in this case his state of inebriation. Rather, under Orner, our supreme court held that, “the adult guest who drank more than he should answered alone to himself and to all others for whatever injury followed his acceptance of intoxicants.” Orner, supra, 515 Pa. at 136, 527 A.2d 521. Therefore, no liability should attach under § 322 of the Restatement.

Accordingly, because I find no merit to any of Appellants’ claims, I dissent and would affirm the judgment of the trial court.

Joined by ROWLEY, JOHNSON and HUDOCK, JJ.

      . We note that it is a criminal offense to operate a motor vehicle in this Commonwealth while the amount of alcohol by weight in the blood of the driver is 0.10% or greater. See 75 Pa. C.S.A. § 3731(a)(4); Commonwealth v. Yapsuga, 369 Pa.Super. 336, 535 A.2d 187 (1987). Where a driver’s blood alcohol content is 0.10% or greater, it may be inferred that the driver is under the influence of alcohol. Commonwealth v. Johnson, 376 Pa.Super. 121, 545 A.2d 349 (1988).

      . We reject appellants’ claim that a cause of action in negligence is set forth by the allegations that appellees urged or challenged Eric Herr to consume the alcohol which ultimately caused his death. The only authority relied upon for this cause of action is Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959), wherein an adult coal strip-mining operator had jumped into a water-filled trench at a mining site and had died as a result. It was alleged in the wrongful death and survivor action that followed that the defendant Bigan, by the employment of cajolery, caused such a mental impact on the decedent that he lost his freedom of choice and under a compulsion, jumped to his death. The Supreme Court held that such alleged conduct would not constitute actionable negligence when directed to an adult in possession of all his mental faculties. The Court also stated that if the decedent “had been a child of tender years or a person mentally deficient then it is conceivable that taunting and enticement could constitute actionable negligence if it resulted in harm.” Id., 397 Pa. at 320, 155 A.2d at 345. We are unwilling, as an intermediate appellate court, to extend the language cited from the Yania decision to find a cause of action for the appellees’ alleged “challenging conduct” in the present case. It is clear that Eric Herr was not a child of tender years and was not mentally deficient in that he did not suffer from mental retardation or mental disease. On the contrary, Eric was a college student and he was about to turn twenty-one years of age. Even though Eric Herr was no doubt intoxicated to some degree before he consumed the bottle of whiskey, he was in control of himself and made decisions regarding what and how much alcohol he would consume. Accord Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968) (although appellant was seriously intoxicated at the time of the stabbing, appellant’s conviction for murder will not be lowered to voluntary homicide). Of course, whether Eric’s decisions on the evening of his death will be found to have been negligent is a matter for determination in the trial court upon remand. Under the Congini decision, appellees are negligent per se, because they furnished alcohol to Eric Herr. Upon remand, questions as to the cause of Eric’s death will be considered by the trier of fact, and these questions will undoubtedly involve a review of all of the surrounding circumstances under which Eric Herr consumed such a large quantity of alcohol in a relatively short period of time.

      . Much of the arguments advanced by the appellees with reference to their assumption of the risk theory will undoubtedly be relevant during the determination of the issue of Eric Herr's alleged contributory negligence upon remand of this matter. There is precedent in this jurisdiction to support the continued viability, despite the enactment of the Comparative Negligence Act and despite the recognition of forceful arguments for the abolition of the defense, of what has been termed the "defense of assumption of the risk” as opposed to the "no duty” theory of assumption of the risk which has been employed by the appellees in the instant case. In Berman v. Radnor Roll, Inc., 374 Pa.Super. 118, 542 A.2d 525 (1988), a panel of this Court stated that even if a defendant owed a duty of reasonable care, he may be relieved of that duty where the plaintiff " ‘fully understands’ the specific risk, ‘voluntarily chooses’ to encounter it, ‘under circumstances that manifest a willingness to accept it’ ”, thus assuming the risk. Id., 374 Pa.Superior Ct. at 136, 542 A.2d at 533 (citations omitted). This assumption of the risk defense, an affirmative defense, was not specifically raised in the pleadings filed in the trial court, and, consequently, it will not be addressed on appeal. See Pa.R.C.P. 1030. We express no opinion on its applicability to the particular circumstances of the case at bar, but simply note it here in an effort to provide a thorough and correct analysis of the law of assumption of the risk as it currently exists in our case law.

      . It will remain for the trier of fact to determine, under Section 322 of the RESTATEMENT (Second) OF TORTS, what was reasonable care under the circumstances of this case, and whether there was a breach of that duty of reasonable care by appellees herein.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    580 A.2d 1124
    M.C., Appellant, v. R.W., Appellee. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1990.
    Filed Sept. 26, 1990.

      Steven E. Wolfe, Holland, for appellant.
    Marvin L. Portney, Bristol, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal from two orders respectively restoring appellee’s partial custody of the parties’ minor daughter, and awarding him $2,000 in counsel fees.

The child who is the subject of this litigation was born August 8, 1985. Her parents separated in February of 1987, and during the next five months, until their December 1987 divorce, there were apparently several separations and attempts to reconcile. Appellant retained primary custody of the child throughout. In November of 1987, following one of the child’s visits with appellee, appellant made contact with Bucks County Children and Youth Services with the objective of instituting a complaint against appellee. This complaint, and others which followed, contained averments that appellee had sexually abused the child, and that his partial custody rights should be severely curtailed or terminated altogether. The children’s authority notified appellant the following January of its conclusion that the complaint was unfounded. After a custody hearing held January 21, 1988, primary custody was affirmed in appellant, with substantial partial custody in appellee. The trial court found, following day long proceedings at which seven witnesses testified on appellant’s behalf, that no evidence of sexual abuse had been demonstrated by appellant, whom the court concluded was not a credible witness.

In March of 1989, appellant filed an emergency petition for modification of the custody order, which was heard by a judge other than the who had presided over the original proceedings. Appellee’s rights to custody of the child were suspended, and contact was restricted to supervised daytime visits. At approximately the same time, appellant filed a second sexual abuse complaint with Children and Youth Services. Of this complaint appellant received word in May that the agency had concluded it to be unfounded. Meanwhile, the restrictive visitation order was vacated in April, and a hearing on the matter set for May; no appeal was taken from this alteration.

On May 14, 1989, after a weekend visit with appellee, appellant brought the child to Children’s Hospital for examination. The on duty pediatric resident found that although the child’s vaginal area was more irritated than could be considered normal, apart from the child’s statements, the physical signs were inconclusive, being equally consistent with causes other than sexual abuse. However, because the child was fearful and had given verbal indications of abuse, another complaint was instituted with the children’s agency. A second emergency petition for modification of the January 21, 1988 custody order was lodged contemporaneously with the third complaint, and again the January order granting appellee substantial partial custody was vacated pending further hearings, which were held on June 16, and September 1, 1989. During this period appellee and his family engaged the services of a registered pediatric nurse to be present during visits with the child. The nurse, along with the psychologist on whose report the first emergency petition was granted, testified during these hearings. Again appellant’s evidence was rejected as incredible by the trial court; appellee’s partial custody was restored, and appellant was assessed counsel fees. This appeal followed.

Appellant has presented us with a catalogue of alleged errors which we will address seriatim. Preliminarily, however, we note that:

Our paramount concern in custody matters is the best interest of the child, including the child’s physical, intellectual, emotional and spiritual well-being. Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983). In these matters, our scope of review is broad. Burke v. Pope, 366 Pa.Super. 488, 492, 531 A.2d 782, 784 (1987); However, “... this broader power of review was never intended to nullify the fact-finding function of the hearing judge. It is a principle which runs through all our cases that the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and the knowledge of the subject can best be determined by the judge before whom they appear.” Lombardo v. Lombardo, 515 Pa. 139, 147, 527 A.2d 525, 529 (1987) (citations omitted). We, therefore, are “empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings ...; and thus, represent a gross abuse of discretion, ... (Emphasis in original).” Id., 515 Pa. at 148, 527 A.2d at 529, quoting Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984) (citations omitted).

Schwarcz v. Schwarcz, 378 Pa.Super. 170, 177-78, 548 A.2d 556, 560 (1988).

Appellant first argues that the trial court abused its discretion and endangered the child by denying her petition to suspend appellee’s unsupervised visitation. She bases her claim on her own testimony as to the child’s behavior after spending time with appellee, some exegesis of the medical findings, and some of the testimony of the child’s psychologist. Since appellant’s presentation is, in large measure, an argument that the trial court should have believed her witnesses rather than appellee’s, we can only reiterate the principle already cited, that:

the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and the knowledge of the subject can best be determined by the judge before whom they appear.

Lombardo, supra. The persuasive nature of Judge Clark’s credibility findings are bolstered even further by his thoughtful and careful analysis of the proceedings he heard, and his willingness to reassess appellant’s accusations. His conclusion, that appellant had consistently fabricated the tale of abuse, was not arrived at lightly, and he pointed out that never had the child complained of ill treatment except in the company and, by implication, at the instigation of appellant. We have been offered no substantive basis on which to reject these findings—quite the opposite.

Appellant next assigns error to the trial court’s refusal to allow testimony from Dr. Pamela Kane, a licensed psychologist as to what is termed, “the child’s developmental and sexual abuse history.” (Appellant’s Brief at 25) Since Dr. Kane received all of her information as to the child’s development and the alleged sexual abuse from appellant, her recitation would merely have presented information already before the court through appellant’s testimony. Moreover, any opinion of her own as to the truth of the the accusations is impermissible under the rule in Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), in which our supreme court held that such evidence invades the province of the factfinder. See also, Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Higby, 384 Pa.Super. 619, 559 A.2d 939 (1989); Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988); Commonwealth v. Zamarripa, 379 Pa.Super. 208, 549 A.2d 980 (1988).

Dr. Kane, who had seen the child some thirty times, was allowed to testify extensively about her actual observations of the child’s behavior. The trial court found that as to the ultimate issue of determining the truth of appellant’s accusations, this information did not advance the inquiry.

Next it is claimed that the trial court erred in allowing counsel to cross examine appellant about the results of her prior complaints to Bucks County Children and Youth Services without allowing her to explain these contacts further. It is a firmly entrenched principle of our caselaw that the scope of cross examination is within the control of the trial judge. Herein, as appellee points out, the (permissible) purpose of this inquiry was to undermine appellant’s credibility, and to expose her tendency, regardless of its motivation, to cry “wolf.” We find the trial court to have been justified in its decision on this issue.

Appellant next claims, as a separate issue, that which she has insinuated with greater and lesser degrees of insistence throughout her brief, namely bias on the part of the trial judge. It is contended that this negative predisposition dates back as far as April of 1989, yet the record reveals that never before has appellant sought to appeal any action taken by the court, nor has any motion for recusal been filed. Under such circumstances it appears to us that appellant, not the court, engages in ad hominem attacks. The trial court’s adverse rulings stem from its assessment of appellant as interested only in interfering in the relationship between appellee and the child by any means at her disposal. Given appellant’s self proclaimed devotion to the best interests of her child, we find this pattern of behavior which is supported by the record, hypocritical at best.

Finally, appellant argues that the trial court abused its discretion by awarding appellee $2,000 in counsel fees. The trial court had taken this action in reliance on 42 Pa.C.S.A. § 2503(6) and Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075 (1983), which allow the assessment of attorney’s fees where a party’s actions in conducting litigation is arbitrary, vexatious or in bad faith. Compare, Santilo v. Robinson, 383 Pa.Super. 604, 557 A.2d 416 (1989). As the court’s determination in this regard is based, in the first instance, on its assessment of appellant’s credibility, we see no reason to overturn its rulings.

Orders affirmed.

      . Although appellee’s access to the child is referred to as “visitation,” it is in fact partial custody, the former term being reserved to describe a parent’s right to call to see the child wherever he or she might be, and does not include, as does the term "custody,” the right of a parent to take possession of the child. Scott v. Scott, 240 Pa.Super. 65, 368 A.2d 288 (1976).

      . Such accusations are not limited to the trial court. Appellant asserted that at least three of appellee’s witnesses, the nurse hired to accompany and observe appellee’s visits with the child, a former friend of both parties who testified as to appellant’s plans to disrupt the custody schedule, and appellee’s mother, had offered perjured testimony.


author:
WIEAND, Judge:
      TAMILIA, Judge,

text:
    580 A.2d 1127
    Paul R. PURDY, Mary Purdy, and John D. Purdy, Appellants, v. Navnitlal B. ZAVER and Girishbhai G. Patel, Appellees. Girishbhai G. PATEL and Navnitlal B. Zaver, Appellees, v. Paul R. PURDY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 7, 1990.
    Filed Sept. 28, 1990.

      Nancy A. Patterson, New Bloomfield, for appellants (at 498) and Paul R. Purdy, appellant (at 499).
    Melville G.M. Walwyn, Harrisburg, for Zaver, appellee.
    Gloria J. McPherson, Shermansdale, for Patel, appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

On or about March 23, 1985, Paul R. Purdy, his wife Mary, and their three adult children agreed to sell to Navnitlal B. Zaver, who agreed to buy, the Park Motel, an ongoing business in Watts Township, Perry County, for two hundred ninety thousand ($290,000) dollars. Pursuant to the further terms of the agreement, possession of the motel and title to all business assets except the real estate were delivered to Zaver upon payment of fifty thousand ($50,000) dollars. The balance of the purchase price was payable in installments, and the real estate was held as security therefor, with title to be conveyed upon payment of the balance in full. The sellers also retained the right to use certain easements which they deemed necessary for the enjoyment of their remaining land situated to the rear of the motel. The buyer was required by the terms of the agreement to keep the motel in good condition.

On May 1, 1987, Zaver resold the motel business and assigned his rights in the real estate to Girishbhai G. Patel, subject to rights reserved to Purdy, for the sum of three hundred forty thousand ($340,000) dollars. Purdy consented to the sale but did not release Zaver from the obligations which he had assumed under the original agreement of sale.

On May 4, 1988, the Purdys commenced an action in ejectment to recover possession of the motel real estate. They contended that Patel had defaulted in two monthly payments and had failed to maintain the motel in good condition. Patel and Zaver thereafter commenced an action in equity seeking to enjoin Paul Purdy’s use and alleged abuse of disputed easements, including (1) a right of way through the motel property to garages owned by Purdy at the rear of the motel; (2) a fifteen foot right of way around three sides, of the motel property; (3) a right of way in favor of the motel property over an additional fifteen feet along the motel’s eastern border; and (4) the right to use the motel pool and well. The two actions were consolidated for trial without jury, and, following such trial, a decree nisi was entered which (1) dismissed the action in ejectment; (2) confirmed the Purdys’ several rights of way so long as the use thereof did not impair the legitimate use and enjoyment of the motel property; (3) confirmed Patel’s right of way over the entire width of the driveway along the motel’s eastern border; (4) limited the Purdys’ use of the well to an additional year; and (5) terminated the Purdys’ use of the motel pool. Exceptions were dismissed, and the decree nisi was entered as the final decree. The Purdys appealed. They contend (a) that the trial court’s adjudication failed to comply with the formal requirements of Pa.R.C.P. 1517(a); (b) the easements were not ambiguous; and (c) the trial court erred by dismissing the action in ejectment.

Pa.R.C.P. 1517(a), which has application to adjudications in actions of equity, provides as follows:

Rule 1517. The Adjudication. Notice
(a) The court shall make an adjudication and may do so before the testimony has been transcribed. The adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law and (4) a decree nisi.

“The rule no longer requires numerated findings of law and fact, but rather ‘allows an adjudication and discussion in narrative form.’ ” Fiumara v. Fiumara, 285 Pa.Super. 340, 347, 427 A.2d 667, 670 (1981), citing Omrcanin v. Hassler, 8 Pa.Commw. 224, 226 n. 2, 302 A.2d 878, 882 n. 2 (1973). Compliance with the rule ensures that the adjudication will provide an adequate basis for appellate review. Matter of Estate of Ross, 316 Pa.Super. 36, 45, 462 A.2d 780, 785 (1983), citing Fiumara v. Fiumara, supra.

In the instant case, the trial court failed to comply with the rule. Its decree nisi was not supported by a statement of the facts, a statement of the issues, or a discussion of the law or the court’s legal conclusions. For this reason, we could properly decline to provide appellate review and remand for an adjudication in conformity with the rule. See: Thompson v. Thompson, 451 Pa. 546, 301 A.2d 644 (1973); Balin v. Pleasure Time, Inc., 243 Pa.Super. 61, 364 A.2d 449 (1976). After appellant had filed exceptions asserting the absence of an adequate adjudication, however, the trial court filed a supporting memorandum. Thereafter, the exceptions were dismissed, and a final decree was entered. This procedure may, indeed, have impaired appellants’ ability to define with precision the issues for post-trial review, but, having made allowance for the general nature of the exceptions filed by appellants to the trial court’s inadequate adjudication, we believe we can review in a meaningful way the issues identified by appellant and thereby avoid the inefficiency inherent in a remand.

“Appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious.” Hostetter v. Hoover, 378 Pa.Super. 1, 6-7, 547 A.2d 1247, 1250 (1988), allocatur denied, 523 Pa. 642, 565 A.2d 1167 (1989), quoting Rosen v. Rittenhouse Towers, 334 Pa.Super. 124, 129, 482 A.2d 1113, 1116 (1984) (citations omitted). The test employed is not whether the appellate court would have reached the same result as the trial judge, who heard and saw the evidence, but whether a judicial mind, on due consideration of the evidence, could reasonably have reached the conclusion of the trial judge. See: Yuhas v. Schmidt, 434 Pa. 447, 454, 258 A.2d 616, 619-620 (1969); Masciantonio Will, 392 Pa. 362, 367, 141 A.2d 362, 365 (1958). See also: 16 Std.Pa.Prac.2d § 91:155.

The motel property was sold in 1985 free and clear of encumbrances,

except rights of ingress and egress, mutual rights to use the road between the motel and parking lot, easement as shown on Exhibit “A”, liens and encumbrances created by or caused by Buyer, and existing restrictions or easements of record or visible by inspection____

Exhibit “A”, attached to the agreement, appeared as follows:

The trial court held that the Purdys had reserved a fifteen (15') foot wide easement around the perimeter of the motel property, but held that it could not be used in a manner which impaired the right of the motel owner and his patrons to use the property for its intended purpose. This was not error. The owner of a dominant estate may not exercise the rights granted to him or her without regard to the rights of the servient owner. Associates of Philipsburg v. Hurwitz, 292 Pa.Super. 406, 414 n. 1, 437 A.2d 447, 451 n. 1 (1981), citing Piper v. Mowris, 466 Pa. 89, 351 A.2d 635 (1976) and Taylor v. Heffner, 359 Pa. 359 Pa. 157, 163, 58 A.2d 450, 454 (1948).

When the Purdys sold the motel there existed a thirty foot wide road along the eastern edge of the real estate being sold. This road had been used and was then being used for access to the motel. The tract to be conveyed to Zaver contained one-half of this road, or fifteen (15') feet thereof. The other half was located on land which was retained by the Purdys. The trial court held that both parties had a right to use this right of way to a width of thirty (30') feet. Appellants contend that their agreement clearly defined the land to be conveyed and that it did not include any right to use the portion of this right of way which existed on the land which they had retained. We agree with the trial court.

“It has long been held in this Commonwealth that although the language of a granting clause does not contain an express reservation of an easement ..., such an interest may be reserved by implication, and this is so notwithstanding that the easement is not essential for the beneficial use of the property.” Burns Manufacturing Co. v. Boehm, 467 Pa. 307, 313-314, 356 A.2d 763, 767 (1976). See generally: 12A P.L.E. Easements §§ 31, 32. “[W]here an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be.” Tosh v. Witts, 381 Pa. 255, 258, 113 A.2d 226, 228 (1955). This is so irrespective of whether or not the easement constitutes a necessary right of way. Id.; Burns Manufacturing Co., Inc. v. Boehm, supra, at 314, 356 A.2d at 767. See also: Lauderbach-Zerby Co. v. Lewis, 283 Pa. 250, 254-255, 129 A. 83, 84 (1925). An easement by implication may be acquired where the intent of the parties is clearly demonstrated “by the terms of the grant, the surroundings of the property and other res gestae of the transaction.” Tomlinson v. Jones, 384 Pa.Super. 176, 179, 557 A.2d 1103, 1104 (1989), quoting Thomas v. Deliere, 241 Pa.Super. 1, 4, 359 A.2d 398, 399 (1976). See also: Philadelphia Steel Abrasive Co. v. Louis J. Gedicke Sons, 343 Pa. 524, 527, 23 A.2d 490, 492 (1942).

Hann v. Saylor, 386 Pa.Super. 248, 251-252, 562 A.2d 891, 892-893 (1989). See also: Buffington v. Buffington, 390 Pa.Super. 61, 67-70, 568 A.2d 194, 197-198 (1989); Tomlinson v. Jones, 384 Pa.Super. 176, 179, 557 A.2d 1103, 1104 (1989).

Here, the evidence disclosed that the Purdys, while they operated the motel, had used the roadway to its full extent as one of two routes to the parking lot in front of the motel. When Zaver conducted the motel business, the roadway was also used to a width of thirty (30') feet. It was not until after the motel had been sold to Patel that the Purdys attempted to limit the portion of the roadway which could be used for motel purposes. The evidence, therefore, confirms the intent of the parties to create an implied easement over the fifteen feet remaining on appellant’s land.

The Purdys also claim an easement in the form of a right of way running through, the center of the motel property. This right of way, appellants contend, was created by an intra family conveyance prior to the sale of the motel property. The language used by appellants, however, is inadequate to establish a right of way through the center of the motel. The language as to the location of this right of way is not only vague, but the right of way around the perimeter of the motel is so located as to comply in all respects with the vague language which Purdy attempted to insert into his chain of title. There is nothing in prior deeds or in the agreement of sale between the Purdys and Zaver that would create a right of way in the location now contended by appellant.

The 1984 family deed also contained language which permitted the families of the grantor and grantee to use jointly the motel swimming pool. Specifically, the deed provided

The grantees and grantors shall share the use of the well and pool located on Tract No. 1 with access to same and neither party shall install a sewer system within eighty (80') feet of the well.

The trial court held that this agreement did not run with the land but was a family agreement intended to continue only so long as the Purdys owned the motel. This was an eminently reasonable interpretation of this provision in the deed. If appellants had wished to reserve the personal privilege of using the motel pool after they sold the motel, it was not unreasonable to require that they insert a provision in the agreement of sale which would have reserved the same. The absence of such a reservation suggests most strongly that a right to use the pool was not intended to be retained.

We agree with appellants, however, that the trial court erred when it limited their right to use water from the well for a period of one year following the court’s decree. Exhibit “A” attached to the agreement identified a fifty foot easement around the well, and paragraph 16 of the agreement of sale provided:

16. Sellers shall have the right to continue to use water from the well on the subject tract for their garage, garden, and other business or personal use.

Whether this was an easement intended to run with the land need not now be decided. The privilege of drawing water from the well, in any event, was not limited in time; and nothing in the language creating the right suggests that it was to continue only until the sellers had had a reasonable time within which to acquire another source of water. When the trial court attempted to limit the period during which water could be drawn from the well, it attempted to rewrite the agreement between the parties. This was improper. Appellants’ right to use water from the motel well, of course, is neither exclusive nor unlimited. If the right is abused in any way, if the operation of the motel is impaired by appellants’ abuse of the right to use water from the motel well, the operator of the motel is not without remedy. In the meantime, such a possibility does not warrant the imposition of an arbitrary time limit to which the parties did not agree.

Appellants’ contention that the trial court erred in dismissing their action in ejectment is without merit. The trial court found as fact that the installment payments required by the agreement had been timely made and that Patel had maintained the motel property in good condition. These findings are fully supported by the evidence. Therefore, appellants were not entitled to reclaim possession of the motel property in an action of ejectment. See: Soffer v. Beech, 487 Pa. 255, 261-262, 409 A.2d 337, 340-341 (1979); Grossman v. Hill, 384 Pa. 590, 593-594, 122 A.2d 69, 71 (1956), citing Brennan v. Shore Brothers, Inc., 380 Pa. 283, 110 A.2d 401 (1955); Busin v. Whiting, 369 Pa.Super. 563, 565, 535 A.2d 1078, 1079-1080 (1987).

The trial court’s decree is modified by striking therefrom the one year limitation upon appellants’ right to use water from the well situated on the motel property. As so modified, the decree is affirmed.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting.

I respectfully dissent to the disposition of the majority as I believe we are without jurisdiction to review this matter. By ignoring Pa.R.C.P. 1517(a), which requires a timely adjudication prior to entry of a decree nisi, the trial court failed to provide appellant the opportunity to properly prepare to argue its case before it, and despite a subsequent supporting memorandum, the trial court has not provided this Court the type of record required for review by 1517(a). My reading of Thompson v. Thompson, 451 Pa. 546, 301 A.2d 644 (1973), and Balin v. Pleasure Time Inc., 243 Pa.Super. 61, 364 A.2d 449 (1976), leads me to conclude Rule 1517(a) must be strictly construed, and the language of the rule permits no other interpretation. A memorandum after exceptions are filed is not a substitute for the necessary findings prior to a decree nisi. To proceed with appellate review under the procedural posture of this case would establish a precedent which nullifies Rule 1517(a) and overrules Thompson and Pleasure Time Inc., supra.

I would vacate the decree of the trial court and remand for adjudication in conformity with Rule 1517(a).

      . The Purdy children had assigned their interests in the agreement to their parents.

      . The decree nisi entered by the trial court was, in relevant part, as follows:
      AND NOW, December 27, 1988, following argument it is ORDERED AND DIRECTED as follows:

        1. The fifteen feet reservation in favor of Mr. Purdy bordering three sides of the property is confirmed in favor of Mr. Purdy, but his use and enjoyment therein is subordinate to the legitimate use and enjoyment of the motel property.
      2. The thirty feet access area to the up riverside of the motel is confirmed to exist in favor of the motel with the motel owning approximately fifteen feet down riverside and Mr. Purdy owning fifteen feet up riverside, but with the motel having the right to the reasonable use and enjoyment of Mr. Purdy’s fifteen feet.
      3. The aforesaid fifteen feet reservation around the exterior of the motel property line in the judgment of the Court satisfies Mr. Purdy’s reservation of a right of way to service Tract No. 2 in Deed 356, page 301. This interpretation, in the judgment of the Court, effectively services the tract, but it is clear to the Court that the encumbrance created or existing on the motel property is subordinate to legitimate motel use.
      4. The use of the well appears to be a private use which does not pass to heirs and assigns of Mr. Purdy and further appeared to the Court to be temporary, but without any definite limiting time period other than a reasonable period of time for Mr. Purdy to secure adequate water for his residence. Accordingly, it is Directed that the use of the well continue for a period no longer than one (1) year to date from this date at the expiration of which said use shall expire.
      5. With respect to the pool, this is also deemed a personal use which is effectively extinguished by the transfer of the motel property to the present purchasers. Thus pool use ceases immediately.

      . The language inserted into the Purdy intra family deed is as follows:
      Further granting and conveying to the grantees herein, their heirs and assigns a thirty (30') foot right of way beginning at the northeast corner of tract, recorded in Deed Book 162, page 285, (the five plus acres originally acquired by Purdy from Lauvers in the 1960 deed) and further granting and conveying to the grantees herein, their heirs and assigns a right of way from Tract No. 2 of this conveyance to the above mentioned right of way to be decided at a later date.


author: DEL SOLE, Judge: MONTEMURO, Judge,

text:
    580 A.2d 1134
    COMMONWEALTH of Pennsylvania v. Edith Georgette KERSTETTER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed Oct. 1, 1990.

      Christopher J. Foust, Milton, for appellant.
    Edward W. Klein, Asst. Dist. Atty., Sunbury, for Com., appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

Edith G. Kerstetter, Appellant, was found guilty of delivery of a controlled substance. Post-verdict motions were filed and denied and Kerstetter was sentenced. She appeals from this judgment of sentence raising three issues. We find the first two to be without merit but we conclude that the Appellant’s third claim requires us to vacate the Judgment of Sentence and remand for resentencing.

Kerstetter was charged with possession with intent to deliver, delivery and conspiracy to deliver a controlled substance. On July 8, 1988, Kerstetter was formally arraigned. On August 17, 1988, the Commonwealth filed a motion to consolidate Kerstetter’s trial with the trial of Devin Murphy. Murphy was charged with several crimes relating to controlled substances in a separate information. The trial court granted the Commonwealth’s motion to consolidate over Kerstetter’s objection. Approximately seven months later the trial was held. Kerstetter was found not guilty on two of the charges presented, but guilty on one count of delivery of a controlled substance. Her co-defendant, Murphy, was ultimately found guilty of possession with intent to deliver and delivery. In addition to an order requiring her to pay fines and restitution, Kerstetter was sentenced to serve a 4 to 48 month period of incarceration.

The first issue raised by Kerstetter is whether the trial court erred when it granted the Commonwealth’s motion to consolidate. Kerstetter argues that the motion was untimely because it was filed ten days beyond the time limit set in the Pennsylvania Rules of Criminal Procedure and because the Commonwealth alleged no cause for the delay in filing the motion. In a related issue Kerstetter claims that the court’s decision permitting her case to be consolidated with her co-defendant’s was prejudicial to her right to a fair trial.

With regard to these claims we have reviewed the record and applicable case law. The trial court in its Opinion provides sound rationale for the decisions it made concerning consolidation. Finding no need to repeat or elaborate on the court’s analysis which correctly disposes of the first and second issues raised, we affirm.

Appellant’s remaining claims challenge the sentence imposed by the trial court. Among other allegations of error she asserts that the sentencing court relied on a pre-sentence report which contained factual errors. The accuracy of the report was challenged by counsel who addressed various statements contained in the report at the sentencing hearing. First counsel challenged the propriety of the prosecutor giving the probation department comments to be contained in the report. The assistant district attorney in this case relayed information contained in the report which indicated that Kerstetter refused to be fingerprinted in relation to an alleged death threat made by mail to the informant. She asserts that this information is inaccurate, that she was indeed fingerprinted and that she had no involvement whatsoever in the death threat.

Also contested were two observations made by the arresting officer which were contained in the report. The officer opined that Kerstetter acted in the role of a “master” over her co-defendant who occupied a “slave” position. Further the officer commented that Kerstetter “did not cooperate.” The accuracy of these observations was disputed by Kerstetter’s counsel who asserted that both statements were false. In addition, her counsel disputed the assistant district attorney’s statements in the pre-sentence report that Kerstetter’s actions required the Commonwealth to incur the expenses of producing an expert witness at trial. Kerstetter’s counsel informed the court that the witness was not necessary to his client’s case, but was called because of a decision made by the co-defendant’s counsel.

After presenting these objections to the court, a brief statement was made by Kerstetter and her father. The court then imposed sentence without setting forth to what extent, if any, it accepted as true any of the challenged statements set forth in the report. Nor did the court indicated that it was accepting the version of these statements offered by defense counsel.

The critical role played by pre-sentence reports in sentencing has recently been recognized by our supreme court. Noting the sentencing court’s utilization of pre-sentence reports, the supreme court has ruled that the need for trial courts to engage in an exhaustive statement of the reasons for the sentence imposed has been eliminated. As was stated in Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12 (1988):

We emphatically reject, therefore, interpretations of our law in this area which call for separate, written opinions embodying exegetical thought. Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of the relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ check lists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.

The discretion afforded a sentencing court is premised upon a belief that the court is armed with a wealth of information particular to the individual defendant and in general with the legislature’s recommendations regarding sentencing contained in the guidelines. Precisely because of the wide latitude afforded sentencing courts and because we recognize the court’s ability to arrive at a balanced judgment when possessed of all the facts, it becomes imperative that the facts relied upon by the sentencing court be accurate. If we are to “presume” that when a sentencing court is in possession of a pre-sentence report its “weighing process took place in a meaningful fashion,” as Devers instructs, 519 Pa. at 102, 546 A.2d 12, then we must ensure that the court’s reliance has not misplaced on a report which contains erroneous information. Although we are not equipped to research or question the accuracy of the report, nor should we be, when particular statements of facts contained in the report are challenged as false by a defendant at sentencing, the sentencing court should make a determination as to which version it accepts as the facts.

It has been held that it is sufficient to render a sentence invalid if it reasonably appears from the record that the sentencing court relied in whole or in part upon an erroneous consideration. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977). However, if the pre-sentence report relied upon by the court is challenged as inaccurate by the defendant and the court fails to indicate which facts it finds to be true, on appeal we are unable to determine whether the court relied in whole or in part upon an erroneous consideration. Where, as here, the accuracy of the pre-sentence report has been challenged at the sentencing hearing, the sentencing court cannot solely rely on the pre-sentence report to satisfy the record requirements of its sentencing function. Thus, whenever the information contained in the pre-sentence report is challenged by the defendant at sentencing, it is incumbent upon the court to engage in a fact finding function to determine the truth or falsity of the statements contained in the report. The reliance sentencing courts enjoy regarding pre-sentence reports in the sentencing process presumes their accuracy. When it is alleged that the reports contain untruths, it is imperative that the sentencing court make the appropriate determination on the record of the factual basis for the sentence imposed. As was said in Commonwealth v. Martin, 466 Pa. 118, 131— 132, 351 A.2d 650 (1976):

It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination. However, we have held that the court’s discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate information.

In conclusion we find it necessary to vacate the judgment of sentence in this case and remand the matter to the trial court for resentencing. As we have stated, a pre-sentence report is of enormous importance in providing the court with relevant information for consideration in sentencing. Because the report in this case, which detailed information concerning Kerstetter’s individual character and facts particular to her case, was alleged to contain falsehoods, the sentencing court must determine which version of the facts is accurate and then proceed to sentence accordingly. We direct the court on remand to indicate whether it accepts as true the facts contained in the pre-sentence report or whether other descriptions of the facts are accurate. Based upon the facts found by the court, a sentence should be imposed.

Judgment of Sentence vacated. Case remanded for re-sentencing. Jurisdiction relinquished.

MONTEMURO, J., files a concurring opinion.

MONTEMURO, Judge,

concurring:

While I find the majority’s disposition of the sentencing issue in this case to be appropriate and the final result correct, for the following reasons I cannot agree with the majority’s analysis of the joinder issues presented.

Appellant argues that the Commonwealth’s joinder motion was untimely, having been filed on August 17, 46 days subsequent to appellant’s arraignment. It is claimed that the delay constitutes a violation of Pa.R.Crim.P. 306, 307 and 1127(B)(1), (2).

Pa.R.Crim.P. 1127(B)(1), (2) reads in pertinent part as follows:

B. Procedure
(1) Written notice that offenses or defendants charged in separate indictments or informations will be tried together shall be served on the defendant at or before arraignment.
(2) When notice has not been given under paragraph (B)(1), any party may move to consolidate for trial separate indictments or informations, which motion must ordinarily be included in the omnibus pretrial motion.

Pa.R.Crim.P. 306 reads as follows:

Unless otherwise required in the interests of justice, all pretrial requests for relief shall be included in one omnibus pretrial motion.

Pa.R.Crim.P. 307 reads as follows:

Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed within thirty (30) days after arraignment, unless opportunity therefor did not exist, or the defendant or defense attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.

The question appellant poses resolves itself into whether the word “ordinarily”, as used in Rule 1127(B)(2), requires some justification by the movant for violation of the thirty day provision of Rule 307. Herein, neither appellee’s Brief nor the hearing on appellee’s motion to consolidate contains any explanation of the delay in filing the motion, or any assertion that the circumstances surrounding the motion are other than “ordinary.”

The Comment to Rule 1128, which concerns severance of offenses or defendants, supports the notion that the exceptions described in Rule 307 constitute the “extraordinary” which justifies late filing of the motion. It reads:

Under the Rule 306 (Omnibus Pretrial Motion for Relief), any request for severance must ordinarily be made in a pretrial motion or it is considered waived unless a later filing is permitted under the exceptions enumerated in Rule 307. (emphasis supplied)

I find this a clear indicator of the meaning with which “ordinarily” is invested, see, Commonwealth v. Boyce, 304 Pa.Super. 27, 450 A.2d 83 (1982), and of its proper interpretation: appellee has, by its dereliction in filing the Motion to Consolidate, violated Rule 307. I believe the trial court thus committed error in considering the motion. Commonwealth v. Robinson, 298 Pa.Super. 447, 444 A.2d 1260 (1982). However, I find the solution to the problem of remedy dependent upon resolution of appellant’s next claim that she was prejudiced by the joinder.

While appellant alleges no prejudice attributable to the delay in the filing of the motion, she does argue that the consolidation of her case with that of her co-defendant resulted in prejudice because of inconsistent defenses. Specifically it is claimed that appellant’s defense of innocence was vitiated and her credibility damaged by the mere proximity of co-defendant Murphy, with whom appellant resided. I find myself unconvinced. Appellant was arrested and found guilty on the basis of evidence that she had actively participated in two controlled buys of marijuana. Despite her co-defendant’s testimony as to her lack of involvement, the jury chose to believe otherwise. The same evidence would have convicted her at a trial of her own. The acquittal she received at a separate trial on charges which had been severed is irrelevant to this inquiry as the record in that case is not and could not properly be before us. Woolard v. Burton, 345 Pa.Super. 366, 498 A.2d 445 (1985). Moreover, as the Commonwealth points out, the verdict against appellant varied from that of her co-defendant, who was found guilty of delivery and possession with intent, while appellant was only convicted of delivery. The difference argues the jury’s ability to distinguish the roles of the parties. Finally, the trial court notes that in Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983), a panel of this court found that the assertion of a better chance of acquittal in a separate trial is not sufficient to demonstrate abuse of discretion where severance is denied. I agree. Moreover, because of the lack of any prejudice accruing to appellant either from either the joinder or from late filing of the motion, I would see no reason to grant such relief, in the form of a new trial, as has been requested.

      . The Motion for Consolidation followed appellant’s (timely) Motion for Severance by nine days.

      . Pa.R.Crim.P. 1128:
      The court may order separate trials of defendants or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.