author: CIRILLO, President Judge Emeritus:

text:
    674 A.2d 249
    COMMONWEALTH of Pennsylvania, Appellant v. Erik Rune KARLSON.
    Superior Court of Pennsylvania.
    Argued Feb. 6, 1996.
    Filed March 19, 1996.

      Curtis J. Rogers, Assistant District Attorney, Stroudsburg, for Commonwealth, appellant.
    Chad A. Martinez, Stroudsburg, for appellee.
    Before: CIRILLO, President Judge Emeritus, BECK, J., and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus:

The Commonwealth appeals from the order of the Court of Common Pleas granting defendant’s petition for writ of habeas corpus. We affirm.

On separate occasions, from March through November of 1994, Eric Karlson sold four “Cobra” knives at a Pocono flea market to an undercover police officer. Karlson was subsequently arrested and charged with four counts of selling prohibited offensive weapons in violation of 18 Pa.C.S.A. § 908. After a preliminary hearing was held, the trial court arraigned Karlson, where he entered pleas of not guilty to all four counts. Karlson filed an omnibus pretrial motion that included a Writ of Habeas Corpus. The writ alleged that the four weapons Karlson sold did not constitute prohibited offensive weapons as defined by the statute, and, in the alternative, the knives fell under the “curio” defense to section 908.

After hearing arguments, the trial court determined that the knives sold by Karlson were not the type of weapons that were intended to be prohibited under section 908. The court granted Karlson’s writ and dismissed all criminal charges. The Commonwealth now presents us "with the following issue

Did the trial court commit reversible error in granting habeas corpus relief?

The Commonwealth properly appeals from the trial court order granting a writ of habeas corpus. The decision to grant or deny a petition for writ of habeas corpus will be reversed on appeal only for a manifest abuse of discretion. Commonwealth v. Lundberg, 422 Pa.Super. 495, 619 A.2d 1066 (1993). “It is settled that a petition for writ of habeas corpus is the proper means for testing a pre-trial finding that the Commonwealth has sufficient evidence to establish a prima facie case.” Commonwealth v. Scott, 396 Pa.Super. 339, 578 A.2d 933 (1990) (citations omitted). Although a habeas corpus hearing is similar to a preliminary hearing, in a habeas corpus proceeding the Commonwealth has the opportunity to present additional evidence to establish that the defendant has committed the elements of the offense charged. Id.

The Pennsylvania Criminal Code defines the offense of prohibited offensive weapons, 18 Pa.C.S.A. § 908, as follows:

(a) Offense defined. — A person commits a misdemeanor of the first degree if, except as authorized by law, he makes, repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.

Additionally, the term “offensive weapons” is defined as:

Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

18 Pa.C.S.A. § 908(c).

Section 908 of the Criminal Code imposes strict liability upon defendants who conduct activity with instruments proscribed by the above statutory language. The legislature intended section 908 to be penal in nature, and, thus, strictly construed. “This section [908] reflects a strong public policy to prevent persons from carrying weapons or any “objects” which have the appearance or characteristics of an offensive weapon.” Commonwealth v. Stewart, 343 Pa.Super. 514, 532, 495 A.2d 584, 593 (1985). “The class of weapons dealt with in Section 908 [has] no peaceful purpose, and the only conceivable use is for purposes which our society has found to be criminal.” Commonwealth v. Ashford, 263 Pa.Super. 100, 106, 397 A.2d 420, 423 (1979). For these reasons, in order to hold a defendant criminally liable under section 908, intent to actually use the offensive weapon need not be proven. Commonwealth v. Gatto, 236 Pa.Super. 92, 344 A.2d 566 (1975).

The Commonwealth asserts that the knives sold by Karlson were not the type of objects that have a common lawful purpose. Specifically, the Commonwealth argues that the sharp metal spikes emanating from the knives’ handles could have “no conceivable common lawful purpose” and, as such, are prohibited weapons under section 908. The Commonwealth claims that the trial court improvidently dismissed the charges against Karlson, and, therefore, committed an abuse of discretion. The Commonwealth maintains that this case be reversed and remanded so that the issue regarding the purpose of the knives be addressed by the proper authority — the fact finder at trial.

Because the “Cobra” knives are instruments consisting of blades that are not “exposed in an automatic way” and, therefore, not weapons specifically prohibited by the statute, we must determine whether the knives fit into the category of being “implements for the infliction of serious bodily purpose which serves no common lawful purpose,” under 18 Pa.C.S.A. § 908(c). To determine if a weapon has a common lawful purpose, for purposes of section 908, there is no need to consider the particular circumstances of the case. Ashford, 263 Pa.Super. at 106-09, 397 A.2d at 423-24. See also Commonwealth v. Fisher, 485 Pa. 8, 400 A.2d 1284 (1979) (Pennsylvania Supreme Court held that to add “under the circumstances” to section 908’s language “common lawful purpose” would impermissibly increase the scope and intent of the statute and cause an unnecessary and unintended overlap with section 907 of the Criminal Code). Additionally, courts must construe the term “common lawful purpose” in a reasonable and commonsense manner. Gatto, 236 Pa.Super. at 96, 344 A.2d at 568.

In interpreting section 908 our court has stated that:

[I]t is useful to distinguish between those weapons which are offensive in themselves, meaning that the universal experience within our society has been that these weapons are used only in furtherance of crime, and those that can be used offensively, in the hands of one inclined to do so, but also have recognized uses of a socially acceptable nature.

Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984) (citation omitted) (emphasis in original). Courts have also employed the language of a comment to a Model Penal Code section, which served as the basis for section 908, in order to ascertain what type of weapons should be prohibited under this Pennsylvania criminal code section. This comment states:

Other weapons like sporting rifles, shotguns and revolvers, and dangerous implements which have peaceful as well as lethal potentialities, like knives and straight razors, cannot be dealt with by drastic prohibition. Not only must we take account of the desires of sportsmen, farmers, and dealers in hunting equipment, we must also recognize that revolvers and knives are frequently carried for defensive purposes.

Id., 486 A.2d at 440 (citing Model Penal Code § 5.07, Comment) (emphasis added); see also Stewart, supra, 343 Pa.Super. 514, 495 A.2d 584 (1985).

As reflected in the comment’s language, knives are often considered not to constitute objects that are of such of a nature that they should be prohibited under section 908. See Fisher, 485 Pa. 8, 400 A.2d 1284 (1979) (“Wyoming Knife” which consisted of metal handle with two finger holes incorporating two cutting blades, one facing outward and the other inward, was hunting implement which had “common lawful purpose,” and thus such knife was not “offensive weapon” for purposes of statute); Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) (Section 908 does not define a simple kitchen knife as a prohibited offensive weapon); Commonwealth v. Artis, 275 Pa.Super. 127, 418 A.2d 644 (1980) (although defendant waved a folding knife with a seven-inch blade in a crowded bar, the knife, which was purchased at a sporting goods store and used for hunting, was not an implement for infliction of serious bodily injury that served no common lawful purpose within the meaning of statute); Commonwealth v. Myers, 273 Pa.Super. 381, 417 A.2d 700 (1980) (thirteen-inch butcher knife which defendant carried while he was charging up a crowded street and threatening to kill another person had a common lawful purpose and thus defendant was not guilty of possession of prohibited offensive weapon); Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979) (absent proof that knife, which did not have blade “exposed in an automatic way,” had no common lawful purpose, Commonwealth’s evidence in prosecution for possession of prohibited offensive weapon failed to prove essential element that such knife was “offensive weapon”). Cf. Gatto, 236 Pa.Super. 92, 344 A.2d 566 (1975) (court used an improper circumstances-of-possession approach to determine that a thirty-inch knife found in possession of defendant while in a high crime urban area in the early morning had no common lawful purpose and was a prohibited weapon under statute).

At the habeas corpus hearing, the prosecution had the burden of proving a prima facie case against Karlson for violating 18 Pa.C.S.A. § 908. Scott, supra. To prove its burden, the prosecution put an officer on the stand who, unsupported by any legal authority, subjectively stated that the knives did not serve any common lawful purpose and that as an officer, he feared that, because young adults were attracted to the unique look of the knives, the knives posed a great threat to our society and must be prohibited under section 908. No other proof to establish the criminal elements was provided at the hearing. Cf. Commonwealth v. Hitchon, 379 Pa.Super. 136, 549 A.2d 943 (1988) (where the prosecution used a police officer who was a firearm and toolmark examiner for the state police to prove its burden in a section 908 case and the officer had extensive experience with the exact tool used by the defendant, having used the tool almost daily in his police work, the court found the prosecution proved its burden and sustained the conviction under section 908; moreover, the prosecution used advertisements of the tool as additional evidence to support its case). Because the Commonwealth offered no evidence to enable the trial court to determine that the Cobra knives served no common lawful purpose, a vital element of the prosecution’s prima facie case was not met.

The combined effect of the Commonwealth’s unsuccessful attempt to prove its case, and the trial court’s consideration of the drastic ramifications that could ensue if it were to prohibit knives from ordinary commercial sales by rural vendors, supported the dismissal of the charges against Karlson. Stewart, supra; Ashford, supra. Accordingly, the trial court did not commit an abuse of discretion. Lundberg supra.

Order affirmed.

      . On one of the sales, the police officer employed a 16 year-old boy to conduct the sales transaction with Karlson. The officer gave the boy money to make the purchase for him. After obtaining the knife, the boy gave it to the officer for use in the ongoing investigation of the defendant.

      . The term "curio” is listed as an exception to culpability under 18 Pa.C.S.A. § 908(b). Our court has explained the term as "a thing of curiosity — some momento, or something you came into possession of.” Commonwealth v. McCue, 338 Pa.Super. 117, 127, 487 A.2d 880, 886 (1985).
      The Summary of Argument section of the Commonwealth’s appellate brief states that “whether the knives had a common lawful purpose is [an issue] that should have been left to the jury” and which required reversal of the trial court and remanding the case for further proceedings. Because the "curio defense” has neither been identified nor argued as an issue on appeal, we will not address its merits. See Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982) (holding that where issues are not properly raised and developed in briefs, a court will not consider the merits thereof).

      . Unlike a defendant who may not immediately appeal from the denial of his pretrial application for habeas corpus relief, the Commonwealth may appeal from an order discharging defendant upon writ of habeas corpus. See Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980); Commonwealth v. Oeler, 357 Pa.Super. 281, 515 A.2d 977 (1986).


source: Caselaw Access Project

author: CERCONE, President Judge Emeritus:

license: Public Domain

text:
    674 A.2d 253
    COMMONWEALTH of Pennsylvania, v. Troy WHITE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 5, 1996.
    Filed March 20, 1996.

      Troy White, pro se.

      Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, President Judge, JOHNSON, J., and CERCONE, President Judge Emeritus.
   CERCONE, President Judge Emeritus:

This is a pro se appeal from an order of court denying appellant Troy White’s petition for relief filed pursuant to the Post Conviction Relief Act (PCRA). 42 Pa.C.S.A. § 9541 et seq. We vacate and remand for proceedings consistent with this memorandum.

The PCRA court has provided us with a summary of the underlying facts of this case:

[A]t approximately 7:00 A.M. on June 6, 1991, [appellant] and an accomplice named Tyrone held siblings Debbie and Glenn Chisolm at gunpoint inside the Chisolms’ home. [Appellant] then went through the Chisolms’ residence, searching for items to steal. Debbie Chisolm knew the [appellant] for over ten years and gave police his name and his description. A police officer also knew the [appellant] and spotted him a short time later. When the officer approached the [appellant], he immediately fled. [Appellant] then ran to the home of Gwendolyn Green and her family, where he shimmied up a drain pipe and entered a window without permission. Once inside, Chris Green, Mrs. Green’s son, saw [appellant] and a struggle ensued. Police entered the home and arrested [appellant].

Trial court opinion dated April 12,1995 at 1-2.

A jury found appellant guilty of robbery, carrying firearms on public streets or public property, burglary and criminal conspiracy. After denying post-verdict motions, the trial court, on August 28,1992, sentenced appellant to an aggregate term of incarceration of not less than ten (10) nor more than twenty (20) years. Appellant did not file a direct appeal.

On October 18, 1993, appellant filed a pro se petition for post-conviction relief and the post-conviction court appointed Robert Fulton, Esquire to represent him. Appointed counsel, on January 31, 1995, filed a “no-merit” letter. On March 7, 1995, the lower court concluded that the PCRA petition was without arguable merit, dismissed the petition, and granted appointed counsel’s petition to withdraw.

In this appeal, appellant claims that PCRA counsel rendered ineffective assistance by filing a “no-merit” letter despite the presence of claims of arguable merit in the underlying PCRA petition. Specifically, appellant argues that trial counsel denied him his constitutional right to file a direct appeal and that PCRA counsel rendered ineffective assistance by failing to raise that claim in an amended PCRA petition. Because appellant, if successful on this issue, will be awarded a direct appeal nunc pro tunc and because a direct appeal is subject to a standard of review different from the standard governing our review of the denial of a PCRA petition, we decline to address the remaining issues currently raised by appellant.

When examining a post-conviction court’s grant or denial of relief, we are limited to determining whether the court’s findings were supported by the record and the court’s order is otherwise free of legal error. Commonwealth v. Granberry, 434 Pa.Super. 524, 530, 644 A.2d 204, 207 (1994). We will not disturb findings which are supported by the record. Id. Before reaching the merits of appellant’s claim, we must ascertain whether appellant is eligible for relief under the PCRA.

As stated, appellant has been convicted of a crime under the laws of this Commonwealth and is currently serving a sentence of imprisonment. 42 Pa.C.S.A. § 9543(a)(l)(i). Based on our review of the record, we conclude that the challenge to trial counsel’s denial of appellant’s direct appeal rights has not been previously litigated. Id. § 9543(a)(3). We must next consider whether the allegation of error has been waived. By failing to raise trial counsel’s alleged denial of appellant’s right of appeal in an amended PCRA petition, appointed counsel waived that issue. Nevertheless, “an allegation of ineffectiveness of counsel in failing to preserve an issue is sufficient to overcome waiver under section 9543(a)(3)(iii) of the PCRA when the proceedings involves [sic] a petitioner’s first PCRA petition.” Commonwealth v. Eaddy, 419 Pa.Super. 48, 58, 614 A.2d 1203, 1207 (1992), appeal denied, 534 Pa. 636, 626 A.2d 1155 (1993). Because appellant has couched the appellate rights issue in terms of ineffectiveness of PCRA counsel, we will treat the issue as not waived and determine whether it is cognizable under the PCRA.

According to appellant, PCRA counsel rendered ineffective assistance by filing a “no-merit” letter despite the presence of an issue of arguable merit in the PCRA petition. Specifically, in the original pro se petition for post-conviction relief, appellant averred that trial counsel ignored his request to file an appeal. Appellant characterizes this inaction as a violation of his constitutional right to a direct appeal. Brief of Appellant at 7. Therefore, appellant raises a claim cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(v). See Commonwealth v. Hickman, 434 Pa.Super. 633, 635, 644 A.2d 787, 788 (1994) (allegation that trial counsel was ineffective for failing to file a direct appeal as requested, thereby violating appellant’s constitutional right to a direct appeal, deemed cognizable under section 9543(a)(2)(v) of the PCRA).

Despite the presence of this arguably meritorious issue, appointed counsel filed a “no-merit” letter and sought permission to withdraw. If counsel for a criminal defendant, exercising professional judgment, determines that the issues raised in collateral proceedings are meritless, and if the post-conviction court concurs, counsel will be permitted to withdraw. Commonwealth v. Bishop, 435 Pa.Super. 211, 214, 645 A.2d 274, 275 (1994); Commonwealth v. Turner, 518 Pa. 491, 494, 544 A.2d 927, 928-29 (1988); Commonwealth v. Finley, 379 Pa.Super. 390, 393, 550 A.2d 213, 215 (1988). The petitioner may then proceed pro se, or by privately retained counsel, or not at all. Bishop, 435 Pa.Super. at 214, 645 A.2d at 275. Before a post-conviction court may grant such a request to withdraw, counsel must file a “no-merit” letter detailing the nature and extent of review and listing each issue which the petitioner wished to raise. Id. at 214-15, 645 A.2d at 275-76. Counsel must also explain why those issues lack merit. Id. The post-conviction court then conducts an independent judicial determination as to whether the various issues support a grant of relief. Id. The assessment of the PCRA court is subject to appellate scrutiny to ensure compliance with the constraints imposed by Turner. Commonwealth v. Mosteller, 430 Pa.Super. 57, 61, 633 A.2d 615, 617 (1993).

In this case, appointed counsel explained in his “no-merit” letter that he had reviewed the record, including transcripts of the proceedings, interviewed trial counsel and contacted petitioner regarding potential claims and prospective witnesses. Further, counsel listed each of the issues raised in appellant’s pro se petition, including the claimed denial of appellant’s right of appeal. In explaining why this issue lacked merit, post-conviction counsel relied on trial counsel’s representations: “[Appellant] never communicated his desire to have an appeal taken from the issues of his trial and/or sentencing.” Finley Letter at 2. Appointed counsel does not claim to have obtained either written or oral confirmation from appellant. Nor does he address appellant’s allegation to the contrary. Moreover, he did not petition the PCRA court to resolve this credibility dispute through an evidentiary hearing.

We acknowledge that the right to an evidentiary hearing is not absolute. Granberry, supra, 434 Pa.Super. at 532, 644 A.2d at 208. Nevertheless, a hearing may only be denied if a petitioner’s claim is patently frivolous and without a trace of support either in the record or from other evidence. Id. Further, a post-conviction petition may not be summarily dismissed as “patently frivolous” when the facts alleged in the petition, if proven, would entitled the petitioner to relief. Id.

As set forth above, appellant’s claim that trial counsel ignored his request for an appeal from the judgment of sentence is not without record support. If trial counsel did in fact disregard appellant’s request to pursue a direct appeal, then appellant would be entitled to relief, i.e., a direct appeal nunc pro tunc. See Hickman, supra, 434 Pa.Super. at 635, 644 A.2d at 788 (trial court erred in denying PCRA petition without a hearing when petitioner had alleged that trial counsel was ineffective for failing to file a motion to reconsider sentence and a direct appeal; petitioner’s averments, if true, would entitle him to direct appeal nunc pro tunc); Commonwealth v. Mosteller, 430 Pa.Super. at 62, 633 A.2d at 618 (when a defendant establishes that counsel’s ineffectiveness denied him entirely his right to a direct appeal, he is entitled to a direct appeal nunc pro tunc without regard to his ability to establish the merit of the issues which he seeks to raise on direct appeal). Consequently, the post-conviction court erred in relying on appointed counsel’s “no-merit” letter and dismissing, without a hearing, appellant’s PCRA petition.

Despite the Commonwealth’s claim to the contrary, this court’s holding in Commonwealth v. Lehr, 400 Pa.Super. 514, 583 A.2d 1234 (1990) does not mandate a contrary result. In Lehr, appellant charged trial counsel with ineffectiveness for failing to file a direct appeal from the judgment of sentence. The PCRA court conducted an evidentiary hearing to ascertain whether appellant had ever requested an appeal. At the conclusion of that hearing, the post-conviction court, crediting trial counsel’s testimony, found that appellant had not shown that he requested an appeal and that counsel disregarded such request. This court affirmed the trial court’s conclusion after noting the standard governing our review of a factfinder’s credibility determinations. Id. at 517-18, 583 A.2d at 1235-36. The PCRA court in this case did not conduct an evidentiary hearing. Rather, it relied entirely on the credibility assessment provided by appointed counsel in his Finley letter.

Based on the foregoing, we vacate the order and remand to the PCRA court for an evidentiary hearing to determine whether prior counsel deprived appellant of his constitutional right to a direct appeal. Because the PCRA court erred in summarily dismissing the claim on the basis of a “no-merit” letter which failed to comply with the mandates of Finley, we further direct that new counsel be appointed to represent appellant at that hearing. If the PCRA court determines that appellant was denied his right to a direct appeal, appellant will be permitted to appeal nunc pro tunc. Should the PCRA court determine, after a hearing, that appellant was not denied his direct appeal rights, it may reissue its order denying appellant’s petition for PCRA relief. Appellant may thereafter appeal from that dismissal and potentially provide this court with an opportunity to address the remaining issues raised in the instant PCRA. We stress that, for purposes of appellate review, such an appeal would not be an appeal from a second or serial PCRA petition but rather a second appeal from the denial of appellant’s first petition.

Order vacated. Case remanded for appointment of counsel and for an evidentiary hearing to determine whether prior counsel deprived appellant of his constitutional right to a direct appeal. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 3701.

      . Id. § 6108.

      . Id. § 3502.

      . Id. § 903.

      . In the instant appeal, appellant also claims that trial counsel improperly advised him of his appellate rights and that PCRA counsel was ineffective in failing to raise that claim. Further, appellant maintains that PCRA counsel was ineffective for failing to contest appellant’s conviction for carrying a firearm without a license. In addition, appellant argues that the post-conviction court erred in failing to appoint new counsel after granting original PCRA counsel’s petition to withdraw.

      . We caution appellant that pro se claimants are not relieved of the duty to properly raise and develop appealable claims. Smathers v. Smathers, 448 Pa.Super. 162, 670 A.2d 1159 (1996). See also Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982) (when issues are not properly raised and developed in briefs and when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits of those issues). For example, claims of ineffective assistance of counsel under the PCRA which are not raised at the earliest stage in the proceedings at which allegedly ineffective counsel is no longer representing claimant are waived. As such, prior counsel’s alleged ineffectiveness in failing to provide the reviewing court with a transcript of contested voir dire proceedings will not excuse pro se appellant’s failure to supply the reviewing court with a transcript of the proceedings or a statement • in absence of transcript. 42 Pa.R.A.P. 1923, 42 Pa.C.S.A.


author: McEWEN, Judge.

text:
    674 A.2d 257
    Anna STROBACK, Appellee, v. Tony Lee CAMAIONI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1995.
    Filed March 25, 1996.

      Edith A. Pearce, Valley Forge, for appellant.
    Andrew E. DiPiero, Jr., Philadelphia, for appellee.
    Before McEWEN, CIRILLO and OLSZEWSKI, JJ.
   McEWEN, Judge.

We are here asked to determine whether the amendments to Section 1722 of the Motor Vehicle Financial Responsibility Law, effective July 1, 1990, (hereinafter Act 6), are applicable in a third-party tort action to preclude recovery of medical expenses arising from a motor vehicle accident which occurred on March 15, 1990, some three months before the effective date of Act 6. The trial court found that the amendments could not, pursuant to the express terms of the statute or constitutional principles relating to retroactivity, be found to be applicable to medical expenses arising from an accident which occurred more than three months before the effective date of the Act. We agree and, therefore, affirm.

Appellee, Anna Stroback, injured on March 15, 1990, when her vehicle was struck by the vehicle operated by appellant, Tony Lee Camaioni, instituted suit on March 6, 1991, against appellant seeking recovery of the damages she had incurred as a result of the accident, including reimbursement for accident-related medical bills which totalled $37,295.93. Prior to trial, appellant filed a motion in limine seeking to preclude admission into evidence of any of the medical bills incurred by appellee. Appellant argued that, under Carlson v. Bubash, 432 Pa.Super. 514, 639 A.2d 458 (1994), the bills were irrelevant and inadmissible as evidence of pain and suffering and, pursuant to Section 1722 of the MVFRL, 75 Pa.C.S. § 1722, could not be recovered as damages in the action against appellant as they had been paid, after the effective date of the Act 6 amendments, by a “program, group contract or other arrangement for payment of benefits as defined in section 1719.” 75 Pa.C.S. § 1722.

Appellee, on the other hand, argued that only the first $10,000 in medical bills, which had been paid under the first party medical benefits coverage of her motor vehicle insurance policy, were subject to preclusion pursuant to Section 1722 of the MVFRL. Thus, while both parties agree that the effect of the pre-Act 6 version of Section 1722 is to preclude admission of evidence concerning, and the recovery of, only the first $10,000 of medical bills, and the effect of the Act 6 amendments on Section 1722 is to preclude the admission of all evidence concerning, as well as the recovery of, all medical bills paid by any insurance program defined in Section 1719, the parties are unable to agree which version of Section 1722 controls the issue of admissibility of the medical bills in this case where the accident occurred prior to the effective date of Act 6, but payment of the bills and institution of suit occurred after the effective date of the Act 6 amendments.

The distinguished Judge Carol K. McGinley ruled that all medical bills in excess of $10,000 were recoverable in this action since the Act 6 amendments could not be applied to limit the amount of recoverable damages arising from a March 15,1990 accident. We agree.

The general rule is that statutes relating to substantive rights are not to be applied retroactively:

“No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. § 1926 (Supp.1978-79).
While the Statutory Construction Act makes no distinctions based on the type of statute, this Court has distinguished between statutes affecting procedural matters and those altering substantive rights. Misitis v. Steel City Piping Co., 441 Pa. 339, 272 A.2d 883 (1971); Farmers Nat’l Bank & Trust Co. v. Berks Co. Real Estate, 333 Pa. 390, 5 A.2d 94 (1939). Statutes relating to procedural matters have been held applicable to cases filed after the effective date, Sussman v. Yaffee, 443 Pa. 12, 275 A.2d 364 (1971), but when substantive rights are involved, the applicable law must be that which is in effect at the time the cause of action arises. Misitis v. Steel Piping Co., supra. We realize that the terms substantive and procedural are not easily defined; yet in the case we decide today, we have no doubt that the appellant’s rights rise to the level of being substantive.

Bell v. Koppers Co., Inc., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978). Accord: Universal Cyclops Steel Corporation v. Workmen’s Compensation Appeal Board, 9 Pa.Cmwlth. 176, 183, 305 A.2d 757, 761 (1973).

A law is only retroactive in its application when it relates back and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired. 1 Pa.C.S. § 1926; McMahon v. McMahon, 417 Pa.Super. 592, 601-02, 612 A.2d 1360, 1364 (1992) (en banc). Only where no substantive right or contractual obligation is involved may a subsequently enacted statute be applied to a condition existing on its effective date where the condition results from events occurring prior to the effective date of the statute. Creighan v. Pittsburgh, 389 Pa. 569, 574-75, 132 A.2d 867, 870 (1957); Brangs v. Brangs, 407 Pa.Super. 43, 50-51, 595 A.2d 115, 119 (1991). A newly enacted law may be applied retroactively if it impairs no contract and disturbs no vested right, but only varies remedies, cures defects in proceedings otherwise fair, and does not vary existing obligations contrary to their situation when originally undertaken. Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960). Moreover, amendatory statutes are not to be construed as retroactive unless such a construction is so clear as to preclude all question as to the intention of the legislature. This rule of statutory construction is particularly applicable when the legislation in question interferes with existing contractual obligations or antecedent rights. DeMatteis v. DeMatteis, 399 Pa.Super. 421, 434, 582 A.2d 666, 672 (1990).

Under the version of Section 1722 in effect on March 15,1990, the day that appellee’s cause of action arose, appellee was entitled to recover all medical expenses, in excess of the required $10,000 in medical coverages, which she had, or would in the future, incur as a result of the accident, irrespective of whether those medical bills had been paid by a person, plan, or company other than appellee. See, e.g.: Palmosina v. Laidlaw Transit Company, Inc., 445 Pa.Super. 121, 664 A.2d 1038 (1995). The motor vehicle insurance policy issued to appellee and under which her first party medical benefits were paid, was drafted with reference to the then applicable provisions of the MVFRL.

Insurance contracts are presumed to have been made with reference to substantive law, including applicable statutes in force, and such laws enter into and form a part of the contractual obligation as if actually incorporated into the contract.

Frey v. State Farm Mutual Automobile Insurance Co., 429 Pa.Super. 425, 432, 632 A.2d 930, 933 (1993), quoting Clairton City School District v. Mary, 116 Pa.Cmwlth. 376, 379, 541 A.2d 849, 851 (1988). Thus, appellee was entitled, as of the day her cause of action arose, to seek recovery of all of her subsequently incurred medical bills which exceeded $10,000. This was a substantive right which could not properly be revoked by subsequent legislative action. See, e.g., Jenkins v. Hospital of The Medical College of Pennsylvania, 401 Pa.Super. 604, 616-17, 585 A.2d 1091, 1096-97 (1991), aff'd., 535 Pa. 252, 634 A.2d 1099 (1993); Bell v. Koppers Co., Inc., supra at 458-59, 392 A.2d at 1382; Byard F. Brogan, Inc. v. Workmen’s Compensation Appeal Board, 161 Pa.Cmwlth. 453, 462-63, 637 A.2d 689, 694 (1994). Cf. Lynn v. Prudential Property and Casualty Insurance Co., 422 Pa.Super. 479, 619 A.2d 779 (1993) (statute providing for peer review organization review was procedural rather than substantive and, thus, could be applied to medical bills payable pursuant to contracts entered into prior to effective date of statute).

However, as a result of the Act 6 amendments effective July 1, 1990, the right to recover such excess medical expenses was extinguished where those expenses were paid by any entity identified in the amended Section 1722. We concur in the conclusion of the trial court that the amended statute could be applied only to bills arising from accidents occurring after July 1, 1990, and was inapplicable in the instant case where appellee had a substantive right as of March 15, 1990, to pursue a claim for excess medical expenses which could not later be extinguished by the enactment of the legislation known as Act 6.

It is well-settled that the Legislature may not extinguish a right of action which has already accrued to a claimant. This Court has consistently held that the Legislature’s repeal of a law which created a right of action does not disturb any actions accrued thereunder:
“There is a vested right in an accrued cause of action.... A law can be repealed by the law giver; but the rights which have been acquired under it, while it was in force, do not thereby cease. It would be an absolute injustice to abolish with the law all the effects it had produced. This is a principle of general jurisprudence; but a right to be within its protection must be a vested right.”
Lewis v. Pennsylvania R.R. Co., 220 Pa. 317, 324, 69 A. 821, 823 (1908) (quotations omitted); see Rebel v. Standard Sanitary Mfg. Co., 340 Pa. 313, 319, 16 A.2d 534, 537-38 (1940); Commonwealth ex rel. Margiotti v. Cunningham, 337 Pa. 289, 301-02, 10 A.2d 559, 563-64 (1940); accord, Creighan v. Pittsburgh, 389 Pa. 569, 574, 132 A.2d 867, 870 (1957); Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960).
* * * * * *
This established view is consistent with federal decisional law which squarely holds that a legislature may not constitutionally eliminate in toto a remedy, whether judicially or legislatively created, which has already accrued. See Ettor v. Tacoma, 228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773 (1913); Forbes Pioneer Boat Line v. Board of Comm’rs, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647 (1922) (Holmes, J.); Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934) (Brandeis, J.); W.B. Worthen Co. ex rel. Bd. of Comm’rs v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555, 79 L.Ed. 1298 (1935) (Cardozo, J.); accord, United States Trust Co. v. New Jersey, 431 U.S. 1, 26-7, 97 S.Ct. 1505, 1520, 52 L.Ed.2d 92 (1977). As Chief Justice Marshall wrote, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803).
A tort cause of action generally accrues on the date of the accident or injury. See Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960); Rebel v. Standard Sanitary Mfg. Co., 340 Pa. 313, 16 A.2d 534 (1940); see generally Bell v. Koppers Co., Inc., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978) (procedural rules apply to cases filed after effective dates; substantive rights are governed by law in effect at time causes of action accrue).

Gibson v. Commonwealth, 490 Pa. 156, 162, 415 A.2d 80, 83-84 (1980).

Nor does the fact that appellee’s complaint was filed and the excess medical bills paid after the effective date of the Act 6 amendments compel a contrary conclusion. The right of appellee to recover certain damages as a result of her injuries accrued on March 15, 1990. The Act 6 amendments could not thereafter affect that vested right. See, e.g.: Bell v. Koppers Co., Inc., supra at 458, 392 A.2d at 1382; Byard F. Brogan, Inc. v. Workmen’s Compensation Appeal Board, supra at 463-64, 637 A.2d at 694.

There is a presumption against the retroactive application of statutes affecting substantive rights. Henry v. State Farm Insurance Co., 788 F.Supp. 241, 243 (E.D.Pa.1992). “[A] law is only retroactive in its application when it relates back and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired.” McMahon v. McMahon, supra at 601, 612 A.2d at 1364, citing 1 Pa.C.S. § 1926; R & P Services, Inc. v. Commonwealth, Dept. of Revenue, 116 Pa.Cmwlth. 230, 234-35, 541 A.2d 432, 434 (1988).

Thus, we agree with the conclusion of the learned trial judge that the provisions of Act 6 limiting the amount of medical bills recoverable in a third party action may not be applied in any case where the accident giving rise to the injuries occurred prior to the effective date of the Act.

Order affirmed.

      . Section 1722, prior to its amendment by Act 6, formerly provided:
      § 1722. Preclusion of pleading, proving and recovering required benefits
      In any action for damages against a tortfeasor arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in section 1711 (relating to required benefits) or the coverage set forth in section 1715(a)(l.l) (relating to availability of adequate limits) shall be precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable under section 1711 or 1715(a)(l.l). This preclusion applies only to the amount of benefits set forth in sections 1711 and 1715(a)(l. 1).
      75 Pa.C.S. § 1722.
      Section 1722 currently provides:
      § 1722. Preclusion of recovering required benefits
      In any action for damages against a tortfeasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers' compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719.
      75 Pa.C.S. § 1722.


text:
    674 A.2d 262
    Joseph DOUGHERTY v. CONDUIT & FOUNDATION CORPORATION d/b/a McCollum General Services Company, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 6, 1996.
    Filed March 26, 1996.

      William G. Downey, Philadelphia, for appellant.
    Gary C. Martin, Horsham, for appellee.
    Before CIRILLO, President Judge Emeritus, and BECK, J. and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus:

This is an appeal from a judgment denying Conduit & Foundation Corporation’s post-verdict motions and entering judgment for Joseph Dougherty in the amount of $250,908.49. We reverse.

Joseph Dougherty instituted a negligence action against Conduit & Foundation Corporation (Conduit) after being injured while performing work for his employer, Ponns & Thomas. Conduit had been hired, as a general contractor, to renovate train tracks and platforms for Amtrak at Philadelphia’s 80th Street Station. Conduit had subcontracted with Ponns & Thomas to perform the painting portion of the station’s renovation. While descending a staircase at the train station, Dougherty allegedly tripped over a 2 x 4 piece of lumber placed on the top step and fell, sustaining injuries to his knee, lower back, shoulder, and upper back/neck area.

At the close of Dougherty’s case, Conduit moved for a directed verdict which was denied by the court. The trial court subsequently entered a verdict against Conduit in the amount of $400,000.00 and found Dougherty 40% contributorily negligent. Dougherty filed a motion for post-trial relief requesting a directed verdict, or, in the alternative, a new trial. After post-verdict motions were denied, Dougherty filed a motion for delay damages which was granted in the amount of $10,908.49. Conduit now appeals and raises the following issues for our review:

(1) Whether Conduit is entitled to judgment as a matter of law as Conduit was the statutory employer of Joseph Dougherty and therefore immune from suit;
(2) Whether Conduit is entitled to judgment as a matter of law as the alleged hazard was open and obvious so that the defendant, Conduit & Foundation, owed no duty to the plaintiff;
(3) Whether Conduit is entitled to judgment as a matter of law on the basis that the plaintiff, Joseph Dougherty, assumed the risk of his injuries;
(4) Whether Conduit is entitled to judgment as a matter of law as there is no credible evidence to support the finding that the defendant was more negligent than the plaintiff;
(5) Whether the court committed reversible error by refusing to allow the defendant to question the plaintiff concerning the plaintiffs spoilization of the alleged paint splattered clothing and why he obtained an attorney the day following the accident?

Our appellate standard of review of an order denying judgment notwithstanding the verdict is whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). The standard of review for an appellate court is the same as that for a trial court: j.n.o.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske-Olds-Cadillac-GMC, 413 Pa.Super. 308, 311-12, 605 A.2d 373, 375 (1992) (citation omitted). An appellate court will reverse a trial court ruling only if it finds an abuse of discretion or an error of law that controlled the outcome of the case. Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892 (1984).

Section 52 of the Pennsylvania Workmen’s Compensation Act sets forth the basis for the doctrine of “statutory employer.” 77.P.S. § 52. The statute defines this term as:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

77 P.S. § 52. Our supreme court recognized that this doctrine will not apply to cases unless five specific elements have been, met. McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930). The elements necessary to create this employment relationship are:

(1) An employer [Conduit] who is under contract with an owner [Amtrak] or one in the position of an owner.
(2) Premises occupied by or under the control of such employer [Conduit].
(3) A subcontract made by such employer [Conduit].
(4) Part of the employer’s [Conduit’s] regular business entrusted to such subcontractor [Ponns & Thomas].
(5) An employee [Dougherty] of such subcontractor [Ponns & Thomas].

Id. These elements have been strictly construed by our appellate courts. Mathis v. United Eng’rs & Constructors, 381 Pa.Super. 466, 554 A.2d 96 (1989). The intent behind the doctrine of statutory employer is “to hold a general contractor secondarily liable for injuries to the employees of a subcontractor, where the subcontractor primarily liable has failed to secure benefits with insurance or self-insurance.” Caldarelli v. Mastromonaco, 115 Pa.Cmwlth. 611, 542 A.2d 181 (1988).

The trial court opined that Conduit should not be considered a “statutory employer” because it did not meet elements two and four of the McDonald test. The record, however, belies such a conclusion.

Section 3.01 of the Amtrak-Conduit contract states:

The Contractor [Conduit] shall supervise and direct the Work, using his best skill and attention. He shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work prescribed by the Contract Documents.

The contract defines the term “Contract Documents” to include, in part:

The Purchase Order; the basic instrument of agreement between Amtrak and the Contractor signed by Amtrak and the Contractor and returned to Amtrak.
The Bid Form; Standard Amtrak form completely filled out and signed by the Contractor.

The record reveals that on September 20,1989, an “Original Purchase Order,” sent by Conduit to Amtrak, was signed by an authorized Amtrak employee/agent. The order form lists work items and their corresponding prices, as well as a total dollar limitation for the contract between the parties. Most important, however, is that item number 2 on the form list includes “Construction of new canopy, structural repairs, painting” as jobs to be performed under the contract. Additionally, a “Bid Schedule,” included in the record on appeal, reflects that painting is one of the items to be performed for the Amtrak renovation work.

“Whenever the subcontracted work [is] an obligation assumed by a principal contractor under his contract with the owner,” element four is met. O’Boyle v. J.C.A. Corporation, 372 Pa.Super. 1, 4, 538 A.2d 915, 917 (1988) (citations omitted). A worker injured on such subcontracted work is not entitled to compensation from the contractor as a statutory employer unless the original contract with the premises owner reserves control over the means of accomplishing the work as well as over the result to be accomplished. McDonald, supra. The language of the two contract documents, namely the purchase order and the bid form, clearly specify that painting is one of the obligations which the contractor assumed under its contract with Amtrak, the owner of 30th Street. Therefore, we disagree with the trial court, and find that prong four of the statutory employer elements is met in the instant case. O’Boyle, supra; see also Zizza v. Dresher Mechanical Contractors, Inc., 358 Pa.Super. 600, 518 A.2d 302 (1986) (trial court’s grant of contractor’s motion for summary judgment affirmed on appeal when contractor, who signed general contract with owner to perform excavation work, was held to be a statutory employer, and thus immune from an action at law for damages, as work that was subject of subcontractor award was part of contractor’s regular business). Cf. Caldarelli v. Workmen’s Compensation Appeal Bd., 115 Pa.Commw. 611, 542 A.2d 181 (1988) (where premises owner was constructing house and contracted with the painter for some of the painting work, the painter was an independent contractor, and the owner was not a statutory employer subject to worker’s compensation liability as to independent contractor’s injured employee; owner, however, was subject to action by the employee at common law); Stipanovich v. Westinghouse Electric Corp., 210 Pa.Super. 98, 231 A.2d 894 (1967) (when employee of third party, hired by defendant, was injured moving equipment at laboratory owned by the United States, defendantr-company who contracted with premises owner was not held to be a “statutory employer” because it was never established that company was obligated by contract to perform the activity in which employee was engaged at the time of the accident).

Because all five of the McDonald elements must apply to an entity before statutory employer status will attach, we must also determine whether prong two was fulfilled with regard to the instant case. Prong two of the McDonald test requires that the premises be under the control of or occupied by the employer. Courts read the language in prong two in a strictly disjunctive manner. Davis v. City of Philadelphia, 153 Pa.Super. 645, 35 A.2d 77 (1943). Therefore, an employer will satisfy this element if he either is in control of the premises or occupies the premises. Zizza, supra.

“The law does not require that a statutory employer’s control of the work premises be ‘exclusive’ of the owner’s possession of the premises.” Colloi v. Philadelphia Elec. Co., 332 Pa.Super. 284, 481 A.2d 616 (1984) (citations omitted). Actual control must be demonstrated by the employer; a mere showing of a right to control is insufficient for purposes of meeting element two of McDonald. Donaldson v. Commonwealth, Dept. of Transp. 141 Pa.Commw. 474, 596 A.2d 269 (1991). In Colloi, supra, when a contractor’s on-the-premises agent marked the area where excavation work was to be performed and exercised actual supervisory control over the subcontractor’s employees, we held that there was sufficient evidence to meet prong two of the McDonald test. See also Pastore v. Anjo Construction Co., 396 Pa.Super. 58, 578 A.2d 21 (1990) (contractor met prong two of statutory employer elements where contractor had the “responsibility and authority to direct, manage and/or operate the construction project where the injury occurred” and where contractor’s foreman often sent help to rectify problems arising out of subcontractor’s work, even where the subcontractor used its own foreman to oversee the subcontractor employees’ work); Pape v. Smith, 227 Pa.Super. 80, 323 A.2d 856 (1974) (where contractor exercised control over the premises by making such decisions as the location of the subcontractor’s work and how extensive that work should be, second prong of McDonald test was met); Davis, supra (where contractor directed the work that was being done on the premises, it was held to have control of such premises for purposes of prong two); McGrail v. W.C.A.B., 145 Pa.Commw. 595, 604 A.2d 1109 (1992) (where private electrician was under supervision of assistant director of public service for county, county was considered statutory employer because director, who told employee to remove wires and to place them on a plate, was considered to be in a supervisory position that satisfied prong two).

In this case, the record reveals that the Amtrak-Conduit contract mandated that Conduit supervise, direct the work, and be responsible for all construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the renovation work at 30th Street Station. In addition, the contract stated that Conduit was required to employ a superintendent to be in attendance at the project site during the progress of all work. In his testimony at trial, Conduit’s job superintendent stated that his responsibilities consisted of: delegating the work areas for Ponns and Thomas employees; giving the employees punch lists; telling them exactly where they should be working; scheduling the work for all subcontractors according to where the concentration of contractors were located within the station; providing the only source of access to the station for workers, where the station entrances were secured by padlocks and chains installed by Conduit; taking headcounts of the workers at night; and making sure all subcontractors remained within their work-designated boundaries.

In interpreting prong two of McDonald, the Commonwealth Court has held that “the important requirement is that the person to be charged as a statutory employer must, in fact, occupy or control the premises, while the employee must be one whom that responsible occupant has permitted to enter the premises in furtherance of his regular business.” Sears, Roebuck & Co. v. Fishel, 6 Pa.Cmwlth. 384, 295 A.2d 345 (1972) (emphasis added). Testimony taken at a waiver hearing reveals that Conduit was responsible for controlling several aspects of the actual painting of the train station. A Conduit employee stated that he had to make sure that the subcontractors were following the “specs” and painting at the proper degree on the surface. In addition, Conduit controlled when the painters could paint, depending on the daily weather conditions. Specifically, if humidity was in the air, a Conduit employee would make the subcontractors stop painting.

The facts contained in the various parties’ testimony, as well as the clear language found in the Amtrak-Conduit contract, compel us to find that prong two of the McDonald test was met in the instant case. Because the remaining prongs were not contested by either party or the trial court, we find that Conduit has fulfilled the elements required to hold it as Dougherty’s statutory employer. Timbrook, supra. Because an employee who is covered by the provisions of the Worker’s Compensation Act forfeits any rights to other forms of damages at law against his statutory employer, McGrail, supra; Colloi supra, the only potential remedy for Dougherty is under the Worker’s Compensation Act, 77 P.S. §§ 1-1603, et seq. Accordingly, we need not address the negligence claims which Conduit raises on appeal.

Order reversed.


author: POPOVICH, Judge: * Retired Justice assigned to Superior Court.

text:
    674 A.2d 268
    James Alexander and Betty ALEXANDER, H/W, Appellants, v. CARLISLE CORPORATION, Lear Siegler Diversified Holding Co., Appellees. Cleopheus BENTON and Doris Jean Benton, H/W, Appellants, v. LEAR SIEGLER DIVERSIFIED HOLDING CO., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Westinghouse Electric Corp., Appellees. Glover HENCE, Appellant, v. CARLISLE CORPORATION, Cleaver-Brooks, Inc., Lear Siegler Diversified Holding Company, Owens-Corning Fiberglas Corp., Westinghouse Electric Corp., Appellees. John BOARDMAN and Betty Boardman, H/W, Appellants, v. CARLISLE CORPORATION, Lear Siegler Diversified Holding Co., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Westinghouse Electric Corp., Appellees. Mildred JOHNSON, Appellant, v. FIBREBOARD CORPORATION, Owens-Illinois, Inc., Appellees. James LORD and Jean Lord, H/W, Appellants, v. CARLISLE CORPORATION, Flintkote Co., Lear Siegler Diversified Holding Co., Owens-Illinois Inc., Westinghouse Electric Corp., Appellees. Roger WEST and Novella West, H/W, Appellants, v. CARLISLE CORPORATION, Fibreboard Corporation, Lear Siegler Diversified Holding Co., Owens-Corning Fiberglas Corp., Westinghouse Electric Corp., Appellees. James McNICHOL and Laura McNichol, H/W, Appellants, v. ASBESTOS CORPORATION, LTD., Atlas Turner Ltd., Fibreboard Corporation, Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1996.
    Filed March 28, 1996.

      Robert E. Paul, Philadelphia, for appellants.
    Matthew Reber, Philadelphia, for Carlisle Corp., appellee.
    Eric J. Kadish, West Cherry Hill, New Jersey, for Flintkote, appellee.
    Before KELLY and POPOVICH, JJ. and MONTEMURO *, Senior Judge.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying appellants’ motion for a new trial and entering judgment in favor of appellees on September 7, 1994. The above-captioned consolidated cases involved claims for alleged personal injury resulting from exposure to asbestos. At the completion of the damages portion of this reverse bifurcated trial, the jury returned a verdict for the defense stating that appellants James Alexander, Cleopheus Benton and James Lord did not sustain an asbestos related injury. The jury further found that appellants Glover Hence, John Boardman, Mildred Johnson, Roger West and James McNichol did not suffer compensable injuries due to asbestos exposure. Appellants herein raise the following issues for our review:

1. Whether appellee counsel deliberately used peremptory challenges to remove African-Americans from the jury;
2. Whether appellee counsel’s conduct, in toto, requires a new trial;
3. Whether a fair trial was denied when appellee counsel elicited testimony concerning appellant Alexander’s alcohol history;

* Retired Justice assigned to Superior Court.

4. Whether the court committed an error of law when it refused to grant a new trial on damages in the five cases where the jury determined the appellants had contracted an asbestos-caused disease but awarded no damages;
5. Whether Giffear was erroneous; and
6. Whether Giffear should be applied prospectively only.

Upon careful analysis of the issues raised by appellants in conjunction with the record, the parties’ briefs and pertinent caselaw, we find no error in the trial court’s denial of appellant’s request for a new trial. Accordingly, we affirm.

Appellants’ first claim is that appellees were permitted to use their peremptory challenges to remove African-Americans from the jury panel. Following appellants’ objection at trial, the court conducted a pretrial hearing to investigate any wrongdoing in appellees’ peremptory strikes. Pursuant to the rule set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), appellees were required to give racially neutral explanations for their use of peremptory challenges. See also, Commonwealth v. Dinwiddie, 529 Pa. 66, 601 A.2d 1216 (1992) (evidence that prosecutor used five of six peremptory strikes to exclude blacks from jury panel established prima facie case of racial discrimination requiring racially neutral explanation); Edmonson v. Leesville Concrete, 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (applying Batson to civil cases).

The trial court found that appellee counsel gave sufficiently neutral justification for exercising peremptory challenges. The reasons given by appellee counsel were summarized by the trial court as follows: “One African-American juror was stricken from the panel because he had a seventh grade education level, and responded to the jury questionnaire he would have difficulty with the coverage of money damages for pain and suffering. One juror was stricken for lack of respect for the jury selection process, who wore sunglasses throughout the entire selection process. Another juror was stricken because of her occupational background as an employee of a pulmonary doctor who was unsure she could put aside her knowledge she acquired in this profession.” Trial Court Opinion, 4/95, p. 2-3. As the trial court was in the best position to judge the sincerity of counsel’s explanation, we concur with its conclusion that the above reasons were sufficiently race neutral.

Appellants’ second issue contains five assertions of appellee counsel’s misconduct. Appellants contest the following statements made by appellee counsel during closing argument: that appellants law firm was profiting from the “overall hysteria” surrounding asbestosis; that appellees’ expert witness, Dr. Akers, took care of indigent patients in Camden, New Jersey; that appellants did not call their treating physicians as witnesses;. that appellees’ expert witness, Dr. Lapayowker, would not continue to do health screenings for SEPTA if he was not objective; and that the jury’s decision will affect the employees of appellees’ companies.

When reviewing objectionable remarks made by trial counsel in closing argument, they must not be viewed in isolation, but, rather in the context of opposing counsel’s closing argument. Aiello v. Ed Saxe Real Estate Inc., 327 Pa.Super. 429, 439-40, 476 A.2d 27, 33 (1984). Furthermore, a new trial is not required where the remarks made by counsel were neither inflammatory or prejudicial. Devine v. Johns-Manville Corp., 434 Pa.Super. 671, 640 A.2d 476 (1994). In light of appellant counsel’s closing remarks, we find that appellee counsel’s statements were either in response to appellant counsel’s closing argument or were not of a nature to influence the jury unduly.

Appellee counsel commented on the hysteria surrounding asbestosis while reminding the jury that the true focus of the case was whether appellants were sick due to asbestos exposure. This statement was in direct response to appellant counsel’s closing remark that appellees never warned appellants o'f the danger of asbestos. Appellee counsel brought up Dr. Aker’s work -with indigents in response to appellant counsel’s repeated referral to the expert as a “company doctor.” The fact that it was brought to the jury’s attention that appellants did not call the treating doctors as witnesses was neither inflammatory nor prejudicial since it was obvious to the jury that no treating doctor was presented. The comment that Dr. Lapayowker would no longer be doing screenings for SEPTA was, once again, in response to appellant’s assertions that the defense experts were all “company doctors.” Finally, the reference to the employees of appellee companies was in response to appellant’s attempt to invoke sympathy for themselves. Appellee counsel was merely trying to personalize what appellants referred to as big corporations. Therefore, when viewed in the context of appellants’ closing arguments, we see no error in the trial court’s refusal to grant a new trial.

In their third issue, appellants assert that a new trial is necessary because appellees elicited testimony regarding appellant Alexander’s history of alcohol consumption. Absent an abuse of discretion, the trial court’s conclusion regarding the admissibility of evidence will not be disturbed. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). In the present case, all medical conditions and their causes were necessary to ascertain the affect asbestos exposure had on the appellants. Testimony regarding Alexander’s history of alcohol consumption was elicited for the purpose of explaining the cause of his liver cirrhosis and was, therefore, properly admitted into evidence.

Appellants next contend that a new trial is warranted since the jury found asbestos-related disease in five appellants yet did not award any damages. The court instructed the jury that they must answer two questions during their deliberations. First, to permit recovery, they must find an objective asbestos-related injury such that damage exists which is physically objective and ascertainable. N.T., volume 2, p. 191. Second, the court said that there must be damage for which the appellant can claim compensation. In addition, the court advised the jury that, if appellants never develop asbestos-related cancer, this will be their only day in court. However, if they should develop asbestos-related cancer in the future, they would be permitted to file another lawsuit at that time.

Appellants claim that once an asbestos-related injury is established, damages must necessarily be awarded. We do not find this rationale consistent with recent caselaw. This court in Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 334-35, 632 A.2d 880, 884 (1993), concisely explained the condition suffered by appellants herein, pleural thickening, as follows:

Asbestos-related pleural thickening is basically, the formation of calcified tissue on the membranes surrounding the lungs; such condition may be objectively determined in the sense that it shows up on an x-ray. Pleural thickening may occur independent of or in conjunction with asbestosis. When the pleural thickening is asymptomatic, as in Mr. Giffear’s case, plaintiffs are able to lead active, normal lives, with no pain or suffering, no loss of an organ function, and no disfigurement due to scarring.

Id. (citations omitted).

Since pleural thickening can be present and not cause ill health, Pennsylvania law has never defined it as a compensable injury. Manzi v. H.K Porter Co., 402 Pa.Super. 595, 598-99, 587 A.2d 778, 780 (1991). Further, “in the face of medical disagreement, whether pleural thickening is a compensable injury in any given case is a factual question.” Id. In Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), we held that the “separate disease rule” applies in asbestos exposure cases. Pursuant to this rule, a plaintiffs cause of action for asymptomatic pleural thickening would not trigger the statute of limitations for a subsequent cause of action for asbestos-related cancer. Id. Thus, eliminating jury speculation as to the possibility of asymptomatic pleural thickening developing into asbestos-related cancer. Id.

Following Marinari, this court held in Giffear that pleural thickening without disabling or manifest physical symptoms is a non-compensable injury. Giffear, 632 A.2d at 884; See also, DiDio v. Philadelphia Asbestos Corp., 434 Pa.Super. 191, 199-200, 642 A.2d 1088, 1092 (1994). We recognized in Giffear that although the plaintiff exhibited a physical and ascertainable change in his lung lining, that alone was not sufficient to be considered a compensable injury. Giffear, 632 A.2d at 885. In support of this holding, the court distinguished harm from injury stating that “there is no rule of law that gives a person with an actionable injury the right to recover damages.” Id., at 885 n. 7.

In the present case, the jury, as finder of fact, found that appellants Hence, Boardman, Johnson and McNichol sustained an asbestos-related injury which was not compensable. As stated by this court in Giffear, absent evidence of reduced physiological functions, we can find no basis on which to award damages for pleural thickening. To do so would be to permit recovery for fear of contracting cancer which is clearly improper. See, Giffear, 632 A.2d at 888; DiDio, 642 A.2d at 1093. Furthermore, it is well settled that, should appellants develop a clear asbestos-related injury in the future, a separate action may be brought at that time. Therefore, the jury verdict finding that appellants had suffered asbestos-related injury yet awarding no damages was well within its province.

In appellants’ fifth issue, they argue that Giffear is erroneous in that it contradicts our Supreme Court’s decision in Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). In Martin, the Supreme Court stated that, although testimony that a plaintiff may suffer certain future harm from a past injury is admissible, the possibility of future harm is not admissible. Id. at 1093-1094, n. 5. The Court continued that damages are not to be awarded based on speculation or conjecture, but, rather with “competent evidence from which the jury can reasonably determine the degree to which future consequences of a present injury are probable and, accordingly, what the amount of any damages award should be.” Id.

We interpret Giffear similarly to hold that without competent evidence such as reduced physiological functions, a jury should not be permitted to speculate on the possibility that a plaintiff might develop asbestos-related cancer when calculating damages. Instead, Giffear instructs that, if and when such symptoms actually arise, a proper claim for damages may be instituted. We therefore find no merit in appellants’ claim that Giffear defies Supreme Court precedent.

Appellants’ final issue asserts that Giffear should be applied prospectively only. Although the present case preceded Giffear,

“[w]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.”

Murray v. Philadelphia Asbestos Corp., 433 Pa.Super. 206, 212, 640 A.2d 446, 449 (1994); DiDio, 642 A.2d at 1092, n. 7. As the retroactive applicability of Giffear was settled in Murray and DiDio, appellants’ final issue must fail.

Having found no merit in any of appellants’ arguments, we affirm the order of the trial court denying appellants’ request for a new trial.

Order affirmed.

      . We note that Giffear was argued before the Supreme Court on October 23, 1995, wherein the issue of whether asymptomatic pleural thickening is a compensable injury was addressed. The Supreme Court has not yet filed its decision in this matter.


author: CIRILLO, President Judge Emeritus.

text:
    674 A.2d 273
    Patrick J. LENIHAN and Lisa Pupo Lenihan, Appellants v. John F. HOWE, III and Karen C. Howe.
    Superior Court of Pennsylvania.
    Argued Feb. 29, 1996.
    Filed April 1, 1996.

      Lisa P. Lenihan, Pittsburgh, for appellants.
    John A. Tumolo, Pittsburgh, for appellees.
    Before CIRILLO, President Judge Emeritus, and SAYLOR and EAKIN, JJ.
   CIRILLO, President Judge Emeritus.

This is an appeal from an order of the Court of Common Pleas of Allegheny County granting Defendants’ prehminary objections and dismissing Plaintiffs’ complaint. We affirm.

Plaintiffs, Patrick J. Lenihan and Lisa Pupo Lenihan, filed a complaint against defendants, John F. Howe, III and Karen C. Howe, alleging breach of contract and violation of the Unfair Trade Practice and Consumer Protection Law. The Lenihans alleged in their complaint that they negotiated with the Howes for the purchase of land owned by the Howes, that they believed the land contained a valid sewage permit, and that the Howes confirmed this assumption by stating that the land had recently passed a percolation test. The Lenihans also averred that after purchasing the property, they inquired and determined that no valid sewage permit existed.

The trial court, in passing on the Howes’ preliminary objections, noted that the contract was drafted by the Lenihans (purchasers) and that it contained an integration clause. The court granted the Howes’ preliminary objections and dismissed the Lenihans’ complaint. This appeal followed. The Lenihans raise the following two issues for our review:

1. Did the trial court err as a matter of law in not allowing plaintiffs leave to amend their complaint to attach the agreement of sale as an exhibit to the complaint?
2. Did the trial court err in determining that the appellants did not have a cause of action at the preliminary objections, before discovery was completed, and before appellants could fully develop the record, to determine whether the defendants’ actions constituted fraud and misrepresentation such that the application of the parol evidence rule would be avoided or, in the alternative, that the parol evidence rule was inapplicable to the facts at hand?

In an appeal from an order sustaining preliminary objections in the nature of a demurrer the appellate court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. Kyle v. McNamara & Criste, 506 Pa. 631, 633-34, 487 A.2d 814, 815 (1985). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Any doubt should be resolved in favor of overruling the demurrer. Kyle, supra; Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 191-93, 500 A.2d 470, 472 (1985).

The Lenihans’ first claim is moot. Although the Lenihans failed to attach the contract of sale to their complaint, acknowledging that it was an oversight, the Howes attached the contract to their preliminary objections. Consequently, the court, in passing upon the preliminary objections, had the benefit of the contract at issue.

In their second claim, the Lenihans contend that the parol evidence rule should not apply to preclude evidence that they were defrauded by the Howes with respect to the existence of a sewage permit. Our review indicates that the law states with certainty that no recovery is permitted. Kyle, supra; Baker, supra.

The contract, drafted by the Lenihans, clearly indicates that option (c) of Paragraph 23 was checked. Option (c) states:

(c) Buyer is hereby advised that there is no currently existing community sewage system available to the Property and that a permit for an individual sewage system will have to be obtained from the appropriate local agency pursuant to the Pennsylvania Sewage Facilities Act. Buyer should contact the appropriate local agency which administers the Pennsylvania Facilities Act, ... before signing this Agreement to determine the procedures and requirements for obtaining a permit for an individual sewage system.

(emphasis added).

The Lenihans contend that the Howes represented to them that the land contained a valid sewage permit, inasmuch as the Howes stated that the land had recently passed a percolation test. These allegations simply do not amount to an allegation of fraud. As such, the parol evidence rule operates to bar evidence of any prior agreement or representations. Where parties, “without any fraud or mistake have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of this agreement!)]” Gianni v. Russell & Co., Inc., 281 Pa. 320, 323, 126 A. 791, 792 (1924). “All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract ... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence.” Union Storage Co. v. Speck, 194 Pa. 126, 133, 45 A. 48, 49 (1899).

Our analysis is braced by the existence of an “as is” clause in ¶ 19, which reads:

19. Inspection of Property. It is hereby understood by the parties hereto that the Property has been inspected by Buyer or his agent, that the same is being purchased solely in reliance upon such inspection and that there have not been and there are no representations or warranties, express or implied, with respect to the physical condition of the property, made by Seller or Broker, except those provided in this Agreement or those set forth in this paragraph.

In Myers v. McHenry, 398 Pa.Super. 100, 580 A.2d 860 (1990), this court recently stated:

Where buyers allege that they were fraudulently induced to purchase a property through fraud and misrepresentation, the applicability of the parol evidence rule is determined by balancing “the extent of the party’s knowledge of objectionable conditions derived from a reasonable inspection against the extent of the coverage of the contract’s integration clause in order to determine whether the party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.” [citations omitted].

Id. at 107, 580 A.2d at 864. See also Bardwell v. Willis Company, 375 Pa. 503, 508, 100 A.2d 102, 105 (1953) (the parol evidence rule may not be circumvented by raising fraud); Bowman v. Meadow Ridge, Inc., 419 Pa.Super. 511, 615 A.2d 755 (1992).

We must hold the promisor to the reasonable meaning of his or her words in order to protect the needs of society and trade as well as the promisee’s justified reliance upon a promise. See 1 Williston, Contracts §§ 21, 35 (3d ed. 1957); see also Jamison v. Concepts Plus, Inc., 380 Pa.Super. 431, 438-40, 552 A.2d 265, 269 (1988). As the eminent Justice Musmanno has pronounced:

If this change of horses in the middle of the stream of contractual obligations were to be permitted, simply because one of the parties was dissatisfied with what he had agreed to do, very few contracts would reach the other side of the stream dry and staunch enough to carry on with the rest of the legal journey. There would be no stability to covenants, no reliability to promises, no assurance of regularity in business dealings, if this were to be permitted. As nature abhors a vacuum the law abhors unreliability in compacts and understandings solemnized in writing or by any other method which expresses a meeting of the minds.

Sun Oil Company v. Traylor, 407 Pa. 237, 243, 180 A.2d 235, 238 (1962).

The parties here intended a contract for the sale of real estate. The contract language placed Buyers on notice that no current sewage system was available to the property; the language also placed upon Buyers the obligation to contact the appropriate local agency to determine the procedures and requirements for obtaining a permit for a sewage system. The Lenihans essentially implore this court to ignore the language to which they have set their signatures. To do so would render the words of the contract meaningless. Jamison, supra. Buyers, in failing to reserve the procurement of a sewage permit as a contingency of the sale, did not protect themselves in the event that a sewage system was not attainable. This alone, however, does not render the agreement unenforceable.

We have balanced the applicable factors, including the plain language of the contract, the fact that Mrs. Lenihan is an attorney, the fact that the Lenihans drafted the contract, and the fact that the Lenihans, having drafted the agreement of sale, could have easily insisted upon further protection or clarification of paragraphs 19 and 23. Our balancing weighs in favor of application of the parol evidence rule. Myers, supra. We conclude, therefore, that the law states with certainty that evidence of prior representation or negotiations is not admissible. As such, no recovery is possible. Kyle, supra; Baker, supra.

Order affirmed.

      . Mrs. Lenihan is an attorney who represented herself and her husband during the trial court proceedings. She represents herself and her husband on appeal.

      . Both parties and the trial court refer to ¶ 26 of the contract — an integration clause. The contract in both the reproduced and original records, however, does not contain the last page of the contract, which apparently contains ¶ 26. This court may consider only those facts which have been duly certified in the record on appeal. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974). We, therefore, admonish counsel for neglecting to include in the record on appeal the entire contract at issue.


author: TAMILIA, Judge:

text:
    674 A.2d 276
    COMMONWEALTH of Pennsylvania v. Dennis W. BECKWITH, Appellant. COMMONWEALTH of Pennsylvania v. Dennis W. BECKWITH, Appellant. COMMONWEALTH of Pennsylvania v. Dennis W. BECKWITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1995.
    Filed April 1, 1996.

      Donald E. Speice, Public Defender, Hollidaysburg, for appellant.
    Elizabeth A. .Doyle, Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.
    Before CIRILLO, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge:

Dennis W. Beckwith appeals from the March 21, 1995, twenty-one (21) to forty-two (42) month judgment of sentence imposed after he was found guilty of terroristic threats, simple assault, recklessly endangering another person, harassment, defiant trespass and indirect criminal contempt. Appellant was acquitted on charges of burglary, one count of simple assault and criminal trespass. The charges levied against appellant, which arose from a single incident yet were prosecuted separately, stemmed from appellant’s violation of a Protection From Abuse (PFA) Order and his attack on the investigating police officer. For the purpose of appeal, the cases have been consolidated sua sponte.

Appellant raises several issues for this Court’s consideration, at least two of which require a detailed recitation of the events preceding appellant’s arrest. On May 11, 1994, Sandra Miller, on behalf of her sixteen year-old daughter Jessica Miller, obtained a PFA Order prohibiting appellant from contacting Jessica, his girlfriend and the mother of his child, Samantha. The consent Order was signed by Jessica, her mother and the appellant. However, despite the Order, appellant and Jessica continued to live together until a day or two before July 18, 1994, the date of the incident in question. On that evening, at approximately 10:00 p.m., Jessica, her new boyfriend Shaun and daughter Samantha arrived at the second floor apartment Jessica shared with her mother, her younger brother and her mother’s boyfriend. Shortly thereafter appellant knocked at the front door and, upon being rebuffed by Jessica, climbed through the bathroom window and began fighting with Shaun. Shaun ran out the front door, down the steps to the street, and appellant and Jessica followed him. Upon hearing the ruckus, the landlady, who lived in the first floor apartment, joined Jessica and appellant and informed appellant if he did not leave she would call the police. Appellant left and Jessica returned to her apartment. Appellant soon returned, however, and, upon once again being turned away, entered through the living room window. When a reconciliation conversation between the two proved futile, appellant forcibly carried Jessica into a bedroom while attempting to muffle her screams with his hand. The victim’s pounding on the floor alerted the landlady who called the police. Jessica testified that when appellant heard Officer Ann Walstrom knocking at the door he became enraged, grabbed a knife and chased the officer backwards down the stairs to the street. Officer Walstrom testified that as appellant rushed at her wielding the knife, he repeatedly shouted “I’m going to f — ing kill you.” When a second officer arrived on the scene, appellant fled, only to be apprehended the following day.

Appellant was tried before a jury on charges which included, among others, defiant trespass and harassment. At a bench trial conducted six weeks later, allegations of indirect criminal contempt were addressed. Appellant contends the latter prosecution for indirect criminal contempt constituted double jeopardy since the charge alleged violation of the May 11,1994 Order prohibiting him from contacting the victim, and the charge of defiant trespass had been previously been adjudicated. In other words, appellant argues prosecuting him for criminal contempt was a duplication or repetition of the defiant trespass and harassment charges prosecuted during the jury trial. Accordingly, appellant prays the conviction and related three-month term of imprisonment imposed consecutive to the eighteen (18) to thirty-six (36) months imposed on the terroristic threats conviction be vacated.

As stated supra, appellant was acquitted at trial of criminal trespass but found guilty of defiant trespass, receiving for the latter conviction an eight-month period of probation to be served consecutive to the incarceration for terroristic threats. The court found harassment merged with terroristic threats and imposed no further incarceration. Accordingly, we are faced with the query whether a violation of the PFA Order is a lesser included offense of defiant trespass, requiring vacation of the three-month sentence. To. determine whether a defendant’s protection against multiple punishments for the same offense has been violated, this Commonwealth applies the test set forth in Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932): where the same act constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. See Commonwealth v. Caufman, 541 Pa. 299, 662 A.2d 1050 (1995); Commonwealth v. Decker, 445 Pa.Super. 101, 664 A.2d 1028 (1995). To be found guilty of defiant trespass, a person must, knowing he is not licensed to do so, enter or remain in a place as to which notice of trespass has been given by actual notice to the actor, posting of the property or fencing or enclosure to exclude intruders. 18 Pa.C.S. § 3503(b). To be found guilty of indirect criminal contempt, violation of the PFA Order in question, appellant must have had any contact, verbal or physical, with the victim. Mere overlap in proof between the two prosecutions doesn’t establish a double jeopardy violation. Caufman, supra.

To be found guilty of defiant trespass appellant had to have entered and remained on victim’s property, knowing he was not licensed to do so. Whether victim was at home at the time would be immaterial. Jessica was present at the time of the intrusion, however, providing the additional material element necessary to thereby trigger a violation of the existing PFA Order, resulting in indirect criminal contempt. This distinction was recognized in Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), wherein it was found criminal trespass and indirect criminal contempt were separate offenses for double jeopardy purposes. While the PFA Order issued herein prohibited any contact whatsoever with the petitioner, to be found guilty of defiant trespass appellant must have knowingly entered or remained in a place as to which notice against trespass was given; to wit: Jessica’s apartment. The interests protected are distinct; the PFA Order protects the person while the crime of defiant trespass goes to the premises. The facts before us are distinguishable from those present in Commonwealth v. Decker, 445 Pa.Super. 101, 664 A.2d 1028 (1995), wherein this Court fpund double jeopardy barred prosecution of defendant for simple assault based on the same facts underlying his prior conviction for criminal contempt for violating a PFA Order enjoining him from physically abusing his wife and her children. Under the facts in Decker, the court found simple assault to be a lesser included offense of criminal contempt, the former offense containing no elements not included in the contempt charge. Each crime in Decker, assault and violation of the PFA Order proscribing abuse, went to the victim personally and contained the same elements necessary for conviction. Such is not the case here. Due to the different elements encompassed in each offense, we find double jeopardy did not attach and prosecution of the PFA Order violation following criminal prosecution for defiant trespass was not precluded.

Next, appellant argues the court erred by denying his motion in limine to preclude reference to the existing PFA Order, where violation of same was not at issue during the jury trial.

A judge has broad powers concerning the conduct of a trial, particularly with regard to the admission or exclusion of evidence. Commonwealth v. Kunkle, 424 Pa.Super. 499, 623 A.2d 336 (1993). Evidence is relevant and therefore admissible if it tends to make the existence of a fact material to the case more or less probable, tends to establish facts at issue or, to some degree, advances inquiry and thus has probative value. Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984).

Evidence of the existence of the PFA Order was necessary to explain the police course of conduct in responding to the disturbance on the evening in question. See Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987). Also, the defense chose not to take advantage of the January 25, 1995 Order wherein the court offered a curative instruction, if requested, worded to advise the jury the PFA Order was not indicative of a prior bad act but a civil remedy precluding defendant from contacting the victim. Appellant endured no undue prejudice as a result of the reference to the civil Order.

Appellant argues next that the court erred by imposing the deadly weapons enhancement on the charge of terroristic threats.

Deadly weapon enhancement shall be imposed when the court determines a deadly weapon, as defined by 18 Pa.C.S. § 2301, has been used during the commission of the convicted offense. 42 Pa.C.S. § 9721; 202 Pa.Code § 303(4). There shall be no such enhancement for convictions of an offense for which the possession of a deadly weapon is an element of the statutory definition. Id. Such is not the case here. Appellant charged toward Officer Walstrom, flailing a kitchen knife with a six to eight inch blade, and screaming “I’m going to f — ing kill you.” The court properly enforced the deadly weapons enhancement provision, see Commonwealth v. Magnum, 439 Pa.Super. 616, 654 A.2d 1146 (1995) and, therefore, the eighteen (18) to thirty-six (36) month judgment of sentence imposed, solidly within the standard range guidelines, was proper, see Commonwealth v. Gee, 394 Pa.Super. 277, 575 A.2d 628 (1990).

Next, appellant contends the court erred by denying his motion for a mistrial and/or to strike the jury panel on the basis it was wrongly informed there was a PFA Order in effect at the time of the incident, and there was a pending complaint charging violation of that Order. Applying the reasoning set forth in our previous discussion, without further discussion, we find this argument devoid of merit.

Appellant also argues the prosecutor’s comments during closing argument so prejudiced the jury as to prevent the panel from rendering a true verdict. The remarks in question allegedly misquote a purported stipulation between the parties and statements made by the defense during its opening. Appellant also takes objection to a chart employed by the Commonwealth during summation, on which it listed the charges with which appellant was charged and the word guilty penned next to each charge. Appellant argues the statements and chart improperly appealed to the emotions of the jurors and reflected the prosecutor’s personal opinion.

Without benefit of opening statements, this Court can only concur with the trial court’s finding the statements made and the use of the chart were in proper response to defense arguments, were reflective of the evidence presented, and appellant was not unduly prejudiced. See Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993); Commonwealth v. Brawner, 381 Pa.Super. 265, 553 A.2d 458 (1989); Commonwealth v. Durah-El, 344 Pa.Super. 511, 496 A.2d 1222 (1985).

Lastly, appellant argues the harassment and indirect criminal contempt guilty verdicts were against the weight of the evidence. Specifically, appellant contends the Commonwealth failed to establish he was aware of the PFA Order, and his telephone contact did not constitute contact prohibited by the Order.

A true “weight of the evidence” claim contends the verdict is a product of speculation or conjecture. Such a claim requires a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Ables, 404 Pa.Super. 169, 590 A.2d 334 (1991). A decision regarding the weight of the evidence is within the sound discretion of the trial judge whose decision will not be reversed on appeal absent an abuse of that discretion. Commonwealth v. Fox, 422 Pa.Super. 224, 619 A.2d 327 (1993). The record indicates the court took unobjected-to judicial notice of the PFA Order. On this basis, there was no error. Moreover, appellant’s position throughout the trial was the PFA Order was a consent decree. Accordingly, we are curious why he now avers no knowledge of said Order, signed by him, which prohibited all contact, verbal or actual, with Jessica. (Commonwealth Exhibit A, paragraphs 2 & 6.) We find the verdicts to be consistent with the evidence presented.

Having found each of appellant’s arguments devoid of merit, we affirm the judgment of sentence entered March 21, 1995.

Judgment of sentence affirmed.

      . On March 25, 1995 appellant was sentenced to eighteen (18) to thirty-six (36) months’ imprisonment after a jury found him guilty of terroristic threats. After a bench trial, in which he was found guilty of indirect criminal contempt, appellant was sentenced to an additional three month period of incarceration to be served consecutive to that imposed for terroristic threats. This Court reasonably interprets the aggregate sentence imposed to be twenty-one (21) to forty-two (42) months.

      . 18 Pa.C.S. § 2706.

      . Id. § 2701.

      . Id. § 2705.

      . Id. § 2709.

      . Id. § 3503.

      . Id. § 5110.

      . Nos. 00835, 00908 and 00909 Pittsburgh, 1995.

      . While the Allen Court consistently refers to the crime in question as criminal trespass, not defiant trespass, we believe the facts and reasoning are analogous to that before us. We acknowledge Judge Del Sole’s Opinion in Commonwealth v. Decker, 445 Pa.Super. 101, 664 A.2d 1028 (1995), infra, finding the result reached in Allen is no longer valid in the Commonwealth, but note his finding does not refer to defiant trespass, but to subsequent prosecution for simple assault following a conviction for criminal contempt for violating a PFA Order.