author: HOFFMAN, Judge:

text:
    637 A.2d 300
    Holly VAZQUEZ and Angel Vazquez, Husband and Wife, Appellants, v. M.J. FRIEDBERG, M.D.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1993.
    Filed Feb. 10, 1994.

      Christopher Gittinger, Allentown, for appellants.
    John R. Hill, Allentown, for appellee.
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entered March 8, 1993, granting appellee’s, M.J. Friedberg, M.D., motion for partial summary judgment, thereby striking the second count of appellants’, Angel and Holly Vazquez, complaint and removing appellant, Holly Vazquez, from the action. Appellants present the following issues for our review:

1. Does the law of the Commonwealth of Pennsylvania recognize a cause of action for loss of consortium in a negligence case where the negligent act occurred prior to the date of marriage, but neither the negligence nor any injury or damages were discovered until after the date of the marriage?
2. Did the Court of Common Pleas of Lehigh County commit an error of law in determining that the plaintiff, Holly Vazquez, did not have a valid cause of action for loss of consortium?

Appellants’ Brief at 3. For the following reasons we reverse the order of the trial court.

In reviewing an order granting summary judgment, an appellate court “must accept as true all well pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom.” Askew By Askew v. Zeller, 361 Pa.Super. 35, 37, 521 A.2d 459, 461 (1987) (citation omitted).

Applying this standard of review, the relevant facts are as follows. In late July, 1976, appellee, M.J. Friedberg, M.D., performed surgery on appellant, Angel Vazquez, for an inguinal hernia. During the course of the operation, appellee discovered that Mr. Vazquez’ left testicle was atrophic. Appellee performed the herniography and surgically lowered the testicle.

In May of 1987, appellants, Angel and Holly Vazquez were married. Two -years later, in September of 1989, a cancerous lump was discovered in the location of the surgically lowered testicle. Mr. Vazquez underwent two surgical procedures and chemotherapy in a failed attempt to remove the cancer.

On April 12, 1991, appellants initiated an action against appellee. The first count of the complaint charges appellee with several acts of negligence which appellant, Mr. Vazquez alleges resulted in his contracting cancer, suffering a heart attack, and sterility. Appellant, Mrs. Vazquez, charges appellee with loss of consortium, in the second count of the complaint.

On May 28, 1992, appellee filed a motion for partial summary judgment against Mrs. Vazquez. The court granted appellee’s motion and dismissed Count II of appellants’ complaint on March 9, 1993. Appellants filed a motion for reconsideration which was subsequently denied. This timely appeal followed.

Appellant contends that the trial court erred in determining that appellant, Holly Vazquez did not have a cause of action for loss of consortium where the negligent act occurred before the marriage but was not uncovered until after the marriage. Essentially, the issue before this court is whether a latent or hidden medical malpractice injury giving rise to a claim for loss of consortium is defined at the time of the negligent act or when the subsequent harm occurs.

A claim for loss of consortium cannot lie where the injury is inflicted prior to the marriage. Jackson v. Travelers Ins. Co., 414 Pa.Super. 336, 344, 606 A.2d 1384, 1388 (1992) (citation omitted); Sprague v. Kaplan, 392 Pa.Super. 257, 260, 572 A.2d 789, 790 (1990).

Typically, a cause of action in negligence and a spouse’s loss of consortium claim arise simultaneously with or in close temporal proximity to both the negligent act and the injury. However, where the discovery rule applies to the underlying cause of action, a spouse’s loss of consortium claim is not tolled until the statute of limitation for the underlying cause of action begins to run. Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 44, 482 A.2d 1067, 1071 (1984) (citations omitted). At its core, the discovery rule distinguishes between the negligent act and any possible ensuing injuries. Donnelly v. DeBourke, 280 Pa.Super, 486, 492, 421 A.2d 826, 829 (1980) (citations omitted) (in medical malpractice cases, the discovery rule tolls the operation of the statute of limitations from “the date the injury-causing event occurs [to] the date the injury is or reasonably should have been ‘discovered’ ”). The rule recognizes that although a negligent act and the injury can happen almost simultaneously, there are situations where the injury may manifest itself subsequently. Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959) (“[i]njury is done when the act heralding a possible tort inflicts a damage which is physically objective and reasonable”). See also Corbett v. Weisband, 380 Pa.Super. 292, 309, 551 A.2d 1059, 1068 (1988) (citation omitted); Donnelly, supra.

Although the discovery rule has historically been used to define an injury for statute of limitations purposes, this court, in Giffear, recently discussed the rule in determining whether a negligent act was actionable in light of the prospect of future injury. See Giffear v. Johns-Manville Corp., et al., 429 Pa.Super. 327, 632 A.2d 880 (1993). In Giffear, this court, en banc, reiterated the Ayers, supra, holding that an injury cannot exist without functional impairment. Id. We stated that asymptomatic pleural thickening could not be characterized as a compensable injury, as it did not impair a plaintiffs ability to lead a normal life. The court also held that the proper time to bring an action for damages for developing cancer was when the harm finally occurred. Damages could not be based upon the mere possibility of subsequently developing cancer.

In the instant case, although appellee’s failure to remove Mr. Vazquez’ undescended testis may have been a negligent act it did not constitute an injury. Ayers, supra. The “legal and medical realities” of correcting an atrophic testis by lowering of the testis cannot justifiably give rise to a cause of action without evidence that the procedure had resulted in some harm. See Giffear, supra. Here, there were no discernible physical symptoms nor any functional impairment at the time the procedure had been preformed. The negligent act, therefore, did not ripen into an injury until appellant contracted cancer. Moreover, as the cancer was not discovered until two years after appellants had been married, appellant, Holly Vazquez, was entitled to bring a claim for loss of consortium. Berardi, supra. Accordingly, we reverse the trial court’s order and remand for proceedings consistent with this opinion.

Reversed and remanded.

      . Appellants assert that appellee should have removed the atrophic testicle. See Appellants' Complaint at 3.

      . This rule effectively prevents a person from bringing a cause of action for an injury to her spouse, of which she was or should have been aware at the time of marriage.

      . "[Tjhree independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.” Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 42, 482 A.2d 1067, 1070 (1984) (citation omitted).

      . Appellants, William and Paula Giffear, had brought suit for physical injuries, and fear of as well as increased risk of cancer, following Mr. Giffear’s occupational exposure to asbestos. Mr. Giffear’s initial exposure to asbestos had occurred in 1964 and in the following ten years, he was exposed to asbestos two or three times a week. In 1982, he was told that he had pleural thickening and that his asbestos exposure could lead to cancer.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    637 A.2d 302
    COMMONWEALTH of Pennsylvania v. Anthony ADAMO, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1993.
    Filed Feb. 10, 1994.

      Carol K. Alexander, Asst. Public Defender, Newtown, for appellant.
    Christopher H. Asplen, Asst. Dist. Atty., Doylestown, for Com., appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

In this appeal, Anthony Adamo, Jr., asks that we declare the Child Luring Statute, 18 Pa.C.S. § 2910, inter alia, unconstitutional as void for vagueness and facially overbroad. We decline to do so and we affirm.

On November 11, 1991, Adamo was arrested and charged with criminal attempt to lure a child into a motor vehicle, 18 Pa.C.S. § 901, 18 Pa.C.S. § 2910; bail was set at $25,000. On February 20, 1992, a preliminary hearing was held before the local District Justice, who found sufficient evidence to hold Adamo for trial. Adamo’s trial was scheduled to be held on June 16, 1992. By stipulation of the parties, the evidence to be considered by the trial court sitting without a jury was the transcript of Adamo’s preliminary hearing. The transcript consisted, in the main, of the uncontradicted testimony of the intended victim. The parties also agreed of record that, in lieu of closing arguments, the parties would submit briefs: Adamo’s brief was to be filed in three months, the Commonwealth’s answering brief would be due 30 days later. Adamo’s brief was filed on September 15, 1992; the Commonwealth’s brief was filed on October 22, 1992. On November 10, 1992, Adamo was released on his own recognizance. On November 12, 1992, bail was again set at $25,000 ($2,500 cash), and a bench warrant was issued. On December 8, 1992, oral argument was held, and Adamo presented an oral motion to dismiss with prejudice for failure to comply with Pa.R.Crim.P. 1122. On January 4,1993, the trial court returned a verdict of guilty; two days later, on January 6, 1993, a motion to release Adamo on his own recognizance was denied, however, Adamo was given the right to renew his bail request in the event “an appropriate treatment plan may be devised.” On April 16, 1993, a sentence of time served was imposed, seventeen months, four days. This appeal followed the denial of post-verdict motions.

Adamo charges that the trial court erred in: (1) finding him guilty of the attempt to lure a child into a motor vehicle on the basis of insufficient evidence; failing to declare the Child Luring Statute which sets forth the crime of “luring a child into a motor vehicle” (2) unconstitutional as void for vagueness; as well as (3) unconstitutional as facially overbroad; and, (4) failing to grant his motion to dismiss based on the trial court’s failure to render a timely verdict within seven days of the submission of the case as required by Pa. R.Crim.P. 1122.

First, Adamo contends that the trial court erred in finding him guilty when the Commonwealth’s evidence was insufficient to prove beyond a reasonable doubt that he took a substantial step toward luring a child into a motor vehicle. In reviewing the sufficiency of the evidence, “we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt.” Commonwealth v. Bricker, 525 Pa. 362, 366, 581 A.2d 147, 148 (1990); Commonwealth v. Campbell, 425 Pa.Super. 514, 625 A.2d 1215 (1993). It is the function of the fact-finder to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced at trial. Campbell, supra. The fact-finder is free to believe all, part, or none of the evidence introduced. Id. The facts and circumstances established at trial need not be absolutely incompatible with the innocence of the defendant, but the question of any doubt is for the trier of fact unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Id.

The evidence established that on November 11, 1991, Ada-mo approached the intended victim, then age 16 years, eleven months, in the Neshaminy Mall, and asked him if he were interested in a landscaping job. The intended victim said that he was interested. Following an interruption where both Adamo and the intended victim answered questions for a survey taker, Adamo asked the intended victim if “he would like to make a thousand dollars for a half an hour.” N.T. 2/20/92 at 5. When the intended victim inquired what he would be doing, Adamo responded that his intended victim would find out what he was to do when the intended victim “went out to Adamo’s car.” Id. The intended victim also testified that Adamo told him that “you can’t tell anybody I’m ... I’ll get in trouble. You’re a minor.” Id. at 6. Adamo told the intended victim “[i]f you decide not to do this, then just don’t come back and don’t tell anyone. Just don’t tell anyone.” Id. at 12. Adamo told the intended victim where he would be waiting and the two separated. Id. Previously, Adamo had cautioned the intended victim not to tell his mother if he agreed to do what Adamo requested. Id. at 6. Instead, the intended victim went to the store in the Mall where his mother was employed to tell her about Adamo’s overtures. Upon hearing her son’s story, the mother of the intended victim called the police. When the police arrived at the Mall, Adamo was identified by the intended victim. The intended victim, when asked if he were afraid of what Adamo was going to do to him, responded that he “was afraid of what [Adamo] was going to do to him when we got to the car or outside,” and stated that he thought Adamo was going to try something “sexual.” Id. at 15.

The crime of luring a child into a motor vehicle is defined by statute as follows:

§ 2910. Luring a child into a motor vehicle
A person who lures a child into a motor vehicle without the consent, express or implied, of the child’s parent or guardian, unless the circumstances reasonably indicate that the child is in need of assistance, commits a misdemeanor of the first degree.

Act of 1990, Feb. 2, P.L., 6, No. 4, § 3, effective in 60 days.

Criminal attempt is found where a person, while possessing intent to commit a crime, does an act which constitutes a substantial step toward commission of that crime. 18 Pa.C.S. § 901(a); Commonwealth v. Henley, 504 Pa. 408, 474 A.2d 1115 (1984); Commonwealth v. Humphreys, 367 Pa.Super. 154, 532 A.2d 836 (1987), appeal denied, 518 Pa. 624, 541 A.2d 1136 (1988).

The evidence in this case consisted mainly of the testimony of the intended victim. The intended victim testified that he was approached by Adamo and offered one thousand dollars for one-half hour of work. The intended victim also testified that Adamo would not tell him the kind of work involved unless he accompanied Adamo to Adamo’s car. Thus, the intent of Adamo to lure his planned victim into his car is apparent. By approaching the intended victim and offering one thousand dollars for one-half hour of work, Ada-mo took a substantial step toward the crime of luring a child into a motor vehicle.

Adamo also argues that the Commonwealth failed to prove beyond a reasonable doubt that Adamo did not have the express or implied consent of the intended victim’s parent. This contention is belied by the record. The intended victim’s mother expressly testified that she did not give Adamo permission to take her child into his car. N.T. 2/20/92 at 19. Adamo also contends that “[a]t no place in the statute or the Crimes Code does the legislature define the word ‘child’ for purposes of the Crimes Code or explain to what age the statute applies.” Appellant’s Brief at 14. To the contrary, the word “child” is defined in Kidnapping, Chapter 29 of the Crimes Code. Section 2908(b) defines the term “child” to mean a person under 18 years of age. 18 Pa.C.S. § 2908(b). A like definition appears in 18 Pa.C.S. § 2904(a). All sections of Chapter 29 of the Crimes Code bear upon “kidnapping” and must be read in pari materia. Statutes or parts of statutes are in pari materia when they relate to the “... same class of persons or things.” 1 Pa.C.S. § 1932(a); Commonwealth v. Dodge, 410 Pa.Super. 189, 599 A.2d 668 (1991). We agree with the determination of the trial court that there was evidence to prove each of the elements of attempt beyond a reasonable doubt. We find no error.

Next, we will address Adamo’s attack on the constitutionality of this statute. When reviewing a challenge to the constitutionality of a statute, there is a strong presumption in favor of a finding of constitutionality; an Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution; all doubts are to be resolved in favor of sustaining the legislation. Commonwealth v. Blystone, 519 Pa. 450, 463, 549 A.2d 81, 87 (1988); Commonwealth v. Santiago, 376 Pa.Super. 54, 65, 545 A.2d 316, 321 (1988), appeal denied, 522 Pa. 595, 562 A.2d 320 (1989).

Foremost, Adamo contends that “[t]he trial court erred in failing to declare the statute, ‘Luring a Child into a Motor Vehicle,’ 18 Pa.C.S. § 2910, unconstitutional because it was void for vagueness, both as applied and on its face.” Appellant’s Brief at 16. In support of this contention, Adamo notes that the United States Supreme Court’s test for determining if a statute is void for vagueness is set forth in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Pursuant to the Papachristou test, a statute would be void for vagueness if the statute “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, [or] because it encourages arbitrary and erratic arrests and convictions.” Id., 405 U.S. at 162, 92 S.Ct. at 843, 31 L.Ed.2d at 115 (citations omitted). The Pennsylvania supreme court has observed, however, that the vagueness doctrine is more complex than a mere reiteration of the Papachristou test would indicate:

A statute may be “vague” in the sense that it contains no ascertainable standard of conduct, or it may be “vague” in the sense that the ascertainable standard of conduct may or may not include certain types of conduct. If the statute contains no standard of conduct, or if the standard iOf conduct prohibits conduct which is protected by the first amendment, the statute will be declared unconstitutionally “vague” without regard to the particular conduct of the individual challenging the statute (hereinafter known as “facial vagueness”). If, however, the statute contains an ascertainable standard which does not infringe upon protected first amendment rights, the “vagueness” issue may be finally determined only with reference to the conduct of the person challenging the statute (citations omitted).

Commonwealth v. Mack, 467 Pa. 613, 616-617, 359 A.2d 770, 772 (1976); Appellant’s Brief at 17. Adamo then argues that: (1) the term child is undefined by the statute and fails to give notice as to the age of the child to which the statute applies; (2) the term lure fails to give notice as to its meaning; and, (3) the phrase “implied consent” fails to to give notice of what circumstances imply parental consent. Appellant’s Brief at 16. This argument does not comport with the record.

Initially, it is clear that Adamo, himself, was aware that this statute contained an ascertainable standard. Adamo stated to the intended victim that “you can’t tell anybody I’m ... I’ll get in trouble. You’re a minor.” N.T. 2/20/92 at 6. If the accused actor tells the intended victim that his behavior is proscribed, any argument that the statute does not contain a standard of conduct necessarily fails. Adamo likewise does not argue that this ascertainable standard infringes upon First Amendment rights. Rather, here, Adamo states, without elaboration, that this statute violates First Amendment rights. He provides not a scintilla of support for this proposition in this section of his brief, and we reject Adamo’s argument as summarily as he has made it. Commonwealth v. Shaw, 494 Pa. 364, 370 n. 3, 431 A.2d 897, 900 n. 3 (1981) (failure to elaborate on mere assertion in brief that admission of confession violated fifth amendment results in waiver); Commonwealth v. Badman, 398 Pa.Super. 315, 322-23 n. 2 and n. 3, 580 A.2d 1367, 1370 n. 2 and n. 3 (1990) (issue waived if argument is mere assertion); Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744 (1988) (we will not review issues that are not properly developed by citation to the record and reference to supporting case law); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982) (same); see also Commonwealth v. Chew, 338 Pa.Super. 472, 479 n. 3, 487 A.2d 1379, 1383 n. 3 (1985); Commonwealth v. Ignatavich, 333 Pa.Super. 617, 623, 482 A.2d 1044, 1047 (1984).

Since the argument that First Amendment rights are involved has been waived, as the Papachristou test provides, we look to Adamo’s conduct. On this record, it is unequivocal that Section 2910 is not vague as applied to Adamo since he, himself, articulated to his intended victim that his behavior was proscribed. We again find no error on the. part of the trial court.

Next, Adamo contends that the trial court erred in failing to declare the Child Luring Statute unconstitutional as it is facially overbroad. We disagree. In City of Philadelphia v. Cohen, 84 Pa.Cmwlth. 200, 202, 479 A.2d 32, 35 (1984), the Commonwealth Court stated:

The overbreadth doctrine allows litigants, who have clearly-engaged in unprotected expression, to challenge purportedly overbroad regulations that chill protected expression. The vicarious assertion of First Amendment rights is predicated on the possibility that unconstitutional restriction of expression may deter protected speech by individuals not before the court, and thereby evade judicial review. Because overbreadth adjudication disregards the personal nature of constitutional rights, substantial overbreadth is necessary [to find] facial invalidation. Additionally, [the] invalidation threshold for overbreadth increases when the activity regulated moves from speech to conduct having an incidental impact on First Amendment rights (emphasis in original; citations omitted).

Adamo asserts that Section 2910 has a chilling effect on the exercise of protected speech and assembly, He lists examples where a friend or neighbor offers a ride in a car to an adolescent without first gaining parental consent and contends that these situations would be brought within the ambit of Section 2910. The situations described by Adamo are all innocent “offers” of a ride, where parental consent may be implied. Section 2910 is inapplicable because in none of the situations described by Adamo is the offer to the teenager also accompanied by any kind of an inducement. These simple offers do not involve a “lure.” To “lure,” inter alia, is defined as: to tempt by pleasure or gain. Webster’s New International Dictionary 1347 (3d ed. 1976).

Where Adamo attempts to show that the Commonwealth has failed to establish a “lure,” he misses the point. For this intended victim, the lure was the offer of the one thousand dollars, not the actual money; for a younger child the lure might be a lollypop or a hamburger at McDonald’s. For centuries people have used the prospect of pleasure or financial gain to “lure” others into places, situations and investments without producing a single dollar of currency or a promised treat. On these facts, we determine that Adamo attempted to “lure” his intended victim. The other situations Adamo describes would not fall within the ambit of Section 2910. There is no lure, no promise of pleasure, no enticement nor financial gain involved. Hence, we are constrained to conclude that Adamo has failed to set forth examples wherein Section 2910 would substantially effect constitutionally protected First Amendment rights. This argument is without merit.

In his final issue, Adamo contends that his constitutional right to a speedy trial has been denied by the failure of the trial court to adhere to Pa.R.Crim.P. 1122. Pa.R.Crim.P. 1122, in pertinent part, provides that “[a] verdict shall be rendered in all non-jury cases within seven days after trial.” Adamo asserts that he invoked his right to a speedy trial on December 8, 1992, when he filed a motion to dismiss on grounds that Pa.R.Crim.P. 1122 had been violated.

This Court has explicitly determined that the Sixth Amendment of the United States Constitution grant of the right to a speedy trial, made applicable to the states through the Fourteenth Amendment, applies to excessive delay in rendering a verdict following trial. Commonwealth v. Young, 385 Pa.Super. 136, 560 A.2d 204 (1989). The test to be applied in such cases is the balancing test first applied in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the conduct of both the prosecution and the defendant are weighed. Young, 385 Pa.Super. at 139, 560 A.2d at 206. This test requires that we assess four factors: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice to the defendant. Id.

First it must be determined whether the delay itself is sufficient to trigger further inquiry. Barker v. Wingo, supra; Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). If the delay is sufficient to trigger further inquiry, the reviewing court must balance the length of the delay with the reason for the delay, the defendant’s timely assertion of his right to a speedy trial, and any resulting prejudice to the interests protected by the right to a speedy trial. Barker v. Wingo, supra; Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980).

Since Pa.R.Crim.P. 1122 requires that a verdict in a bench trial “shall be rendered within 7 days of trial,” it is apparent that a verdict rendered some 61 days after a claimed assertion of rights is sufficient to trigger further inquiry. Therefore, we must balance the length of the delay with the reason for the delay.

The Commonwealth maintains that this right has been waived and observes that in the June 16, 1992 hearing, at the time Adamo waived his right to a jury trial, he was also advised that given the nature of his pretrial motions specifically challenging the constitutionality of 18 Pa.C.S. § 2910 and the busy trial schedule of his counsel, the scheduling of his trial and, consequently the verdict, would necessarily be prolonged. N.T. 6/16/92 at 8-9. Adamo’s counsel stated of record that he “would be prepared to submit a brief within a three-month period” with an additional 30 days for the Commonwealth to respond. Id. While the briefs were apparently to be in lieu of oral argument, the trial court requested and heard oral argument in this matter on November 4, 1992. No objection to this request by Adamo is reflected in the certified record. Some 34 days later, on December 8, 1992, Adamo affirmatively asserted his Sixth Amendment rights. The trial court rendered a verdict on January 4, 1993, 27 days after Adamo petitioned to be discharged for violation of his speedy trial rights.

In Young, supra, where the verdict was rendered 40 months after the conclusion of the non-jury trial, finding that the trial court and the Commonwealth were responsible for the delay through oversight and prejudice to appellant’s liberty interests, we vacated the conviction and dismissed the charges. Balancing the factors in the present case, we conclude that the delay was not inordinate and that Adamo bore the responsibility for the bulk of that delay. Since Adamo makes no claim that the delay was the result of deliberate action by the Commonwealth, the next factor we consider is whether Adamo asserted his rights immediately. See Pounds, 490 Pa. at 629, 417 A.2d at 600 (failure to file immediate petition weighs against claim). Adamo’s failure to file a petition asserting that he was aggrieved by the delayed verdict for 34 days cannot be regarded as an immediate assertion of his rights.

The final factor to be considered is prejudice. Our task is to determine whether there has been prejudice in fact. See Commonwealth v. Glass, 526 Pa. 329, 336, 586 A.2d 369, 371-372 (1991). Adamo only claims that he suffered increased anxiety and oppressive incarceration while awaiting the verdict. This claim rings hollow in light of the 34-day delay by Adamo in affirmatively asserting his rights. Here, where the trial court entered a verdict 27 days after affirmative notice of Adamo’s speedy trial rights when Adamo failed to assert these rights until 34 days after they accrued, we are unable to conclude that Adamo suffered prejudice. On these facts, in the absence of a showing of prejudice, the dismissal of charges for failure to comply with Pa.R.Crim.P. 1122 is not required. See Commonwealth v. Glover, 303 Pa.Super. 229, 449 A.2d 662 (1982), aff'd, 500 Pa. 524, 528, 458 A.2d 935, 937 (1983).

Accordingly, for the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.


author: CERCONE, Judge:

text:
    637 A.2d 309
    DOLLAR BANK, FEDERAL SAVINGS BANK v. NORTHWOOD CHEESE CO., INC., Appellant. DOLLAR BANK, FEDERAL SAVINGS BANK v. George L. MYRTER and Eleanor M. Myrter, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1993.
    Filed Feb. 14, 1994.

      Jeffrey T. Morris, Pittsburgh, for appellants.
    B.A. Karlowitz, Pittsburgh, for appellee.
    Before CIRILLO, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal of two orders of the lower court denying appellants’ petitions to open and/or strike judgments by confession. We affirm.

The record reveals the following facts. In April, 1989, appellant Northwood Cheese (Northwood) entered into a loan agreement with appellee Dollar Bank and executed a promissory note in connection with this agreement. Appellants George and Eleanor Myrter (the Myrters) guaranteed payment of the loan to Northwood Cheese by executing with appellee a Guaranty and Suretyship Agreement with Power to Confess Judgment. On May 12, 1992, appellee received two checks from Northwood in payment of the monthly amount which was due under the note and for a reduction of principal on the loan. After appellee presented the checks for payment, they were returned with the notation “freeze on account.” On June 1, 1992, the Myrters delivered two replacement checks but these were returned to appellee marked “account closed.” Then, on June 9,1992, the Myrters presented three post-dated checks to a Dollar Bank employee; however, appellee learned on June 10, 1992 that the Myrters’ account had insufficient funds to cover any of the checks. On June 11, 1992, appellee confessed judgments against Northwood and the Myrters pursuant to the promissory note and the guaranty agreement. On that date, the Myrters made a deposit to their bank account; however, they stopped payment on that account the next day (June 12, 1992).

In July, 1992, appellants each filed petitions to open and/or strike the confessed judgments. On March 31,1993, the lower court entered an order denying Northwood’s petition. The lower court entered a separate order on April 6, 1993, denying the Myrter’s petition. Appellants filed timely notices of appeal. In this consolidated appeal, appellants raise the following issues:

1. Was Dollar Bank, through its acceptance of post-dated checks, precluded from confessing judgment against appellants unless and until the checks were presented and dishonored?
2. Was the occurrence of a default by the appellants a precondition to any right of appellee to confess judgment against them?
3. Did appellee, by its conduct and assurances to appellants, waive any right to confess judgment against them?
4. Did appellee waive any grounds for default, other than a claimed payment default as alleged in its complaint for confession of judgment against Northwood?
5. Was any default which arguably occurred technical, immaterial, and. subject to correction?
6. Can a judgment be properly confessed on an instrument which was not signed by one of the appellants when there was evidence that the appellants did not clearly consent to the warrant to confess judgment?
7. Was the confession of judgment and immediate issuance of garnishment execution against appellants’ bank accounts an impermissible violation of appellants’ constitutional rights to due process of law?
8. Should the judgments have been opened to determine the reasonableness of the counsel fees included therein?

Before addressing these issues, we first set forth our standard of review.

“A judgment taken by confession will be opened in only a limited number of circumstances, and only when the person seeking to have it opened acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury.” First Seneca Bank v. Laurel Mt. Development Corporation, 506 Pa. 439, 443, 485 A.2d 1086, 1088 (1984). “Once a ruling either opening or refusing to open a confessed judgment is appealed, we, as an appellate court, will refrain from reversing a trial court’s decision unless it is shown that the court committed an error of law or manifestly abused its discretion.” Lambakis v. Exar, 340 Pa.Super. 483, 488, 490 A.2d 882, 884 (1985), citing Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967). The standard of sufficiency of .the evidence which a court must employ to open a confessed judgment “is that of the directed verdict — viewing all the evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense while rejecting adverse allegations of the party obtaining the judgment.” Weitzman v. Ulan, 304 Pa.Super. 204, 209, 450 A.2d 173, 176 (1982). A motion to strike a judgment will not be granted unless the fatal defect claimed appears on the face of the record. PennWest Farm Credit, ACA v. Hare, 410 Pa.Super. 422, 600 A.2d 213 (1991); Haggerty v. Fetner, 332 Pa.Super. 333, 481 A.2d 641 (1984).

Turning to the issues appellants have raised in this appeal, we note that the first five issues relate to whether there was a default under the parties’ agreement and alternatively, whether it was necessary for default to occur in order for appellee to properly confess judgment. To determine this, we must examine the warrant of attorney itself for the scope of authority to confess judgment is defined by the terms of the warrant of attorney which authorizes confession of judgment. Park-Main Co. of Penn, Inc. v. Fayette National Bank & Trust Co. of Uniontown, 397 Pa. 75, 152 A.2d 714 (1959). Entry of a valid judgment by confession can only be accomplished if such entry is made in rigid adherence to the provisions of the warrant of attorney; otherwise, such judgment will be stricken. Scott Factors, Inc. v. Hartley, 425 Pa. 290, 228 A.2d 887 (1967). A warrant to confess judgment must be explicit and will be strictly construed, with any ambiguities resolved against the party in whose favor the warrant is given. Lincoln Bank v. C & H Agency, Inc., 500 Pa. 294, 456 A.2d 136 (1982).

The warrant of attorney contained in the note and guaranty agreement provided as follows:

The undersigned hereby irrevocably authorizes and empowers any prothonotary or attorney of any court of record within the United States of America or elsewhere to appear for the undersigned and, with or without complaint filed, confess judgment, or a series of judgments, against the undersigned in favor of the bank or any holder hereof, as of any term, for the unpaid balance hereof together with interest thereon, costs of suit and an attorney’s fee for collection of fifteen percent (15%) of the amount due or five hundred ($500.00) dollars, whichever is greater. The undersigned hereby forever waives and releases any and all errors which may intervene in any such proceedings, waives all right of appeal and stay of execution and waives all laws exempting real or personal property from execution. The undersigned shall not cause any bill in equity to be filed to interfere in any manner with the operation of such judgment, hereby ratifying and confirming all that said attorney may do by virtue hereof. Interest on any such judgment shall accrue at a rate equivalent .to that provided for in this note. No single exercise of the foregoing power to confess judgment, or a series of judgments, shall be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be valid, voidable or void, but the power shall continue undiminished, and it may be exercised from time to time as often as the holder hereof shall elect until such time as the holder shall have received payment in full of the debt, interest and costs.

In interpreting the foregoing warrant of attorney, we are guided by the following authority:

Unquestionably, if a warrant of attorney clause authorizes entry of judgment by confession only after default, a judgment entered prior to default or lacking an averment of default is invalid. Triangle Building Supplies & Lumber Co. v. Zerman, 242 Pa.Super. 315, 363 A.2d 1287 (1976). “However, absent some restriction as to when a judgment may be entered, a judgment may be entered for a full amount prior to the time it is due and payable.” Industrial Valley Bank & Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa.Super. 499, 503, 428 A.2d 156, 159 (1981).

Commonwealth National Bank v. Boetzelen, 338 Pa.Super. 237, 242-43, 487 A.2d 943, 946 (1985). Where the warrant of attorney contains no condition, limitation, or restriction of any kind as to when judgment may be entered, the authority to issue judgment for the full amount of the loan is immediate. Id. However, the right of execution is not immediate. Id., quoting Industrial Valley Bank & Trust Co., supra. and Integrity Title Insurance, Trust & Safe Deposit Co. v. Rau, 153 Pa. 488, 26 A. 220 (1893). Execution cannot issue without default. Id.

The warrant of attorney in the instant case is explicit and unambiguous. It contains no conditions or limitations upon the entry of judgment by confession. Therefore, we must reject as meritless all of appellant’s arguments which are based on the theory that default must have occurred prior to appellee’s entry of judgment against them.

Moreover, execution was proper in the instant case because the evidence of record shows that appellants did in fact default in their payments under the note. There is no dispute that appellants gave post-dated checks for their monthly payment obligation. After a post-dated check is delivered, it constitutes payment only on and after the date of the check. Staff Builders of Philadelphia v. Koschitzki, 989 F.2d 692 (3rd Cir.1993). Thus, appellants’ obligation under the note and guaranty agreements was not suspended by the mere delivery of the checks to appellee. The suspension of those obligations could not occur until June 12, 1992, the date of the post-dated instruments. On June 12,1992, the evidence shows clearly that there were no funds available in appellants’ account to cover the post-dated checks because appellants had stopped payment on them on June 11, 1992. Thus, appellants cannot successfully claim that their delivery of post-dated checks to appellee cured their default under the note. See also Hart v. Sims, 702 F.2d 574 (5th Cir.1983) (section 3-802 of the Uniform Commercial Code does not suspend the underlying obligation if the drawer or maker of the instrument has waived presentment of it expressly or by implication; stopping payment on a check given for an obligation constitutes waiver of presentment). Accordingly, since default existed, execution under the confessed judgment was proper.

Appellant’s next argument on appeal is that the confessed judgment was improper because there was evidence that Eleanor Myrter did not sign the guaranty agreement, and that appellants did not understand the warrant of attorney provisions in the note and guaranty agreement and therefore did not consent to its provisions. Appellants base the first part of this argument on an excerpt from the deposition testimony of Eleanor Myrter, in which she stated that she did not recall signing the guaranty document. However, elsewhere in the deposition, Mrs. Myrter does not deny her signing of the document. Additionally, appellants admit in their pleadings that both Mr. and Mrs. Myrter executed the guaranty agreement. We conclude that the lower court did not err in failing to find a meritorious defense on this basis.

There is also no merit to appellants’ assertion that their purported lack of knowledge and/or understanding of the warrant of attorney provisions in the note and guaranty agreement requires that the judgment be stricken or opened. The failure to read a confession of judgment clause will not justify avoidance of it. Pittsburgh National Bank v. Larson, 352 Pa.Super. 250, 507 A.2d 867 (1986). This is particularly true where the confession of judgment clause is clear and conspicuous and part of a commercial transaction. Provco Leasing Corporation v. Safin, 265 Pa.Super. 423, 402 A.2d 510 (1979). The confession of judgment clauses in the instant case possessed all of these attributes. The lower court did not err in failing to open the confessed judgment on this basis.

Next, appellant contends that the lower court erred in denying their petition to open/strike the confessed judgment because the confession of judgment and immediate execution against appellants’ bank accounts was an unconstitutional deprivation of property without due process of law. Appellants cite Jordan v. Berman, 758 F.Supp. 269 (E.D.Pa.1991) in this regard. In Jordan, the federal district court of the eastern district of Pennsylvania found the garnishment procedure set forth in Pa.R.Civ.P., Rule 2958, 42 Pa.C.S.A., to be unconstitutional because it provides no assurance for a prompt hearing on the merits of a creditors’ claim, and the attachment is preserved under Pa.R.Civ.P., Rule 2959(f) while any proceedings to open judgment are pending. Id. at 280. However, in North Penn Consumer Discount Co. v. Shultz, 250 Pa.Super. 530, 378 A.2d 1275 (1977), the court held that in the context of a judgment confessed on a judgment note, the “hearing” required to comport with due process means simply an opportunity to be heard; it does not require a proceeding comparable to a full trial, but may be satisfied by other procedural opportunities to be heard, such as a petition to open judgment, a stay of execution, a rule to show cause why the judgment should not be opened, depositions to support the allegations in the petition, and oral argument. Id., 250 Pa.Super. at 536, 378 A.2d at 1278.

It is clear that in the instant case, appellants have been afforded many of these procedural opportunities. They have filed the instant petition to open judgment, a petition to enforce stay of execution, numerous depositions in connection with the petition to open judgment, and oral argument of the case. All of these procedural opportunities have provided appellants with a “hearing” sufficient to satisfy the requirements of due process. North Penn Consumer Discount Co., supra. Therefore, the lower court’s entry of confession of judgment against appellants did not constitute a violation of their constitutional rights.

Next, appellants contend that the lower court should have opened the confessed judgments to determine the reasonableness of counsel fees included therein. They assert that counsel fees awarded in accordance with the fifteen percent attorney’s commission specified in the warrant of attorney are excessive.

If a confessed judgment includes an item not authorized by the warrant, the judgment is void in its entirety and must be stricken. Colony Federal Savings & Loan Association v. Beaver Valley Engineering Supplies Company, 238 Pa.Super. 540, 361 A.2d 343 (1976). However, if the judgment as entered is for items clearly within the judgment note, but excessive in amount, the court will modify the judgment and cause a proper judgment to be entered. Id. at 347. If the judgment was entered for an amount which was grossly excessive, the judgment must be stricken in its entirety. Id.

Here, it is clear that attorney’s fees in the amount of fifteen percent were specifically authorized by the warrant of attorney. Appellants claim that the amount of attorneys’ fees is excessive, but they provide no citation to any evidence of record to this effect, and similarly do not make any argument as to why the fees are claimed to be excessive. We note that a voluminous record accompanies the instant case. In light of the fact that the warrant of attorney permits the fee to which appellants object, and in the absence of any specific argument concerning the alleged excessiveness of the fee, we find this argument meritless.

Orders affirmed.


author: TAMILIA, Judge:

text:
    637 A.2d 314
    William J. FILIPOVICH, Appellant, v. J.T. IMPORTS INC., Formerly J.T. Racing U.S.A. and A.T.Y.S., A French Corporation.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1993.
    Filed Feb. 15, 1994.

      Joseph S. Bielecki, Pittsburgh, for appellant.
    Rhonda J. Sudina, Pittsburgh, for appellees.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

William J. Filipovich appeals from the June 22, 1993 Order sustaining the preliminary objections of defendant, J.T. Imports Inc., formerly J.T. Racing U.S.A., a California corporation, as to jurisdiction. Appellant, a Pennsylvania resident stationed in Japan with the U.S. Navy, was injured when the helmet he was wearing, allegedly manufactured and sold by the appellee, failed when appellant was thrown from his motorcycle. Appellee’s preliminary objections, which challenged the Pennsylvania courts’ jurisdiction over this matter, were sustained, the trial court reasoning Pennsylvania had neither in personam nor general jurisdiction over appellant’s personal injury suit. This appeal followed.

Appellant argues because appellee fills special orders placed by Pennsylvania customers at cycle shops and advertises in national magazines which may be subscribed to or seen by Pennsylvania residents, J.T. Imports Inc., is subject via the Pennsylvania long arm statute, 42 Pa.C.S. § 5322, to the in personam jurisdiction of Pennsylvania courts. We disagree.

On an appeal from an Order sustaining preliminary objections, we accept as true all well-pleaded material facts set forth in the appellant’s complaint and all reasonable inferences which may be drawn from those facts. Muhammad v. Strassburger et al., 526 Pa. 541, 587 A.2d 1346 (1991), reargument denied, 528 Pa. 345, 598 A.2d 27 (1991), cert. denied, — U.S. —, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991); Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). Whether a state may exercise in personam jurisdiction over a nonresident defendant must be tested against the state’s long arm statute and the due process clause of the fourteenth amendment of the United States Constitution. Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992). If jurisdiction may be conferred by the state’s long arm statute, a tribunal must next determine whether the defendant has established minimal contacts with the forum state. Finally, it must be established the assertion of in personam jurisdiction would not violate the “traditional notions of fair play and substantial justice.” Id. quoting International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). While Pennsylvania’s long-arm statute, 42 Pa.C.S.A. § 5322(a)(l)(iii), provides that ‘[t]he shipping of merchandise directly or indirectly into or through this Commonwealth’ is a basis for personal jurisdiction, “ ‘the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum state.’ ” Kachur v. Yugo America, Inc., 534 Pa. 316, 632 A.2d 1297 (1993), quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528, 542 (1985). Moreover, we must consider whether J.T. Imports had sufficient contact with Pennsylvania to justify the exercise. of in personam jurisdiction; that is to say, was its connection with Pennsylvania “such that [it] should reasonably anticipate being haled into court there.” Kubik, supra, 532 Pa. at 17, 614 A.2d at 1114, citing Burger King Corp., supra. We find appellant’s allegations did not show the assertion of in personam jurisdiction would have comported with the concepts of fair play and substantial justice.

The ‘substantial connection’ ... between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state.... Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.

Kachur, supra, 534 Pa. at 324, 632 A.2d at 1301, quoting Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County, 480 U.S. 102, 112, 107 S.Ct. 1026, 1032, 94 L.Ed.2d 92, 104 (1987).

Appellant did not purchase the offending helmet in Pennsylvania. The accident did not occur in Pennsylvania. Although it was averred helmets could be purchased from appellee by placing special orders with Pennsylvania cycle shops, and appellee’s advertisements appeared in magazines available nationwide, those facts, without more, do not establish the California corporation targeted or considered Pennsylvania residents prime consumers. Moreover, there was no assertion as to the percentage of business appellee did in Pennsylvania and no basis for in personam jurisdiction was established.

Additionally, although not argued by appellant, we also find Pennsylvania may not exercise general jurisdiction over appellee as J.T. Imports’ activities in Pennsylvania were neither continuous nor substantial. See Skinner v. Flymo, 351 Pa.Super. 234, 505 A.2d 616 (1986).

Based on the foregoing reasons of law and fact, we affirm the Order sustaining appellee’s preliminary objections and dismissing it from this lawsuit.

Order affirmed.

      . The Order sustaining appellee's preliminary objections and dismissing appellee was entered May 24, 1993. Since it was an Order dismissing less than all defendants in the action, it was not final and appealable. Pa.R.A.P. 341. Appellant petitioned the court for a determination of appealability under Rule 341(c) and the court, acting on that request, incorrectly entered language certifying the legal issue as a controlling issue for appeal relying on Pa.R.A.P. 1311, Interlocutory Appeal by Permission. It is obvious that the trial judge intended to certify her Order as final. We will treat it as such and not allow the judge's oversight to preclude appellate review.

        Recently, this Court in McKinney v. Albright, 429 Pa.Super. 440, 632 A.2d 937 (1993), addressed the application of Rule 341. There, we admonished the trial courts that certification under Rule 341(c) should not be granted where less than all parties are dismissed from a law suit, unless postponing review of that decision will cause a right to be lost,
      In the instant case, while the dismissal of J.T. Imports, Inc., was a dismissal of less than all parties, the record clearly reflects that A.T.Y.S., A French Corporation, has not been served and in all probability can never be served. Therefore, the dismissal of the appellee in this matter effectively terminates the litigation, and to deny Rule 341(c) certification would effectively end the plaintiff's claim without any chance of subsequent review.

      . Although counsel for appellee advised this Court during oral argument the case was captioned incorrectly, because counsel failed to provide us with appellee's correct name and, in fact, counsel’s brief lists her client as J.T. Imports Inc., the caption remains unchanged.

      . Defendant, A.T.Y.S., although served by registered mail on September 24, 1992, has not filed an appearance in this matter.


author: OLSZEWSKI, Judge:

text:
    637 A.2d 317
    Thomas H. HOLLORAN and Edith Holloran, H/W v. Alberto J. LARRIEU, M.D., David M. Masiak, D.O., Metropolitan Hospital, Parkview Division and Carl G. DiJoseph, D.O., and Bruce S. Margolis, D.O., and Crown Cork and Seal Company, Inc. Appeal of CROWN CORK AND SEAL COMPANY, INC.
    Superior Court of Pennsylvania.
    Submitted Dec. 15, 1993.
    Filed Feb. 15, 1994.

      Joseph R. Glancey, Philadelphia, for appellant.
    Shanin Specter, Philadelphia, for Holloran, appellees.
    Frederick J. DeRosa, Jr., Philadelphia, for Larrieu, appellee.
    John F. O’Brien, III, Plymouth Meeting, for Masiak, appellee.
    James L. Griffith, Philadelphia, for Metro. Hosp., appellee.
    Adrian R. King, Philadelphia, for DiJoseph & Margolis, appellees.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Thomas Holloran, a long-time employee of appellant Crown Cork and Seal Co., Inc. (Crown), suffered brain damage from allegedly negligent medical treatment he received at appellee Metropolitan Hospital, Parkview Division. Pursuant to his union contract, Crown paid Holloran’s medical expenses resulting from the incident, which now total over $200,000. About four years ago, Holloran began a malpractice action against Metropolitan Hospital and the allegedly negligent doctors. In addition to pain and suffering, loss of life’s pleasures, loss of consortium, and other compensable damages, Holloran’s complaint sought to recover medical expenses from the hospital and doctors.

The case before us stems from Crown’s petition to intervene, pursuant to Pa.R.C.P. 2327. Crown argues that since it has paid Holloran’s medical expenses, it is equitably subrogated to Holloran’s right to recover these medical expenses from the malpractice defendants.

This issue was briefed and then argued before the Honorable Gene D. Cohen on July 7, 1993. The trial court ruled from the bench that Crown had no right of equitable subrogation, and denied Crown’s petition to intervene. The trial court has designated the transcript of this oral argument and bench ruling as its opinion in this case.

Crown argues that Pennsylvania law recognizes a right of equitable subrogation in situations such as Holloran’s, based upon the doctrine of unjust enrichment. While no case is precisely on point, the nearest cases have involved situations where cities or counties have paid medical expenses of injured police officers or fire fighters, and then sought reimbursement when the injured employees filed suit against the third-party tortfeasors, for damages, including medical expenses.

In Philadelphia v. Philadelphia Rapid Transit Co., 337 Pa. 1, 4, 10 A.2d 434, 435 (1940), our Supreme Court held that “[wjhatever right the city has to recover the payments made by it must of necessity be based upon the equitable doctrine of subrogation.” Our high court did not squarely address the issue of whether equitable subrogation did in fact apply, being diverted by procedural matters.

The Superior Court picked up where Philadelphia Rapid Transit, supra, left off in Potoczny v. Vallejo, 170 Pa.Super. 377, 85 A.2d 675 (1952), holding that a city was indeed entitled to equitable subrogation. The Potoczny court offered a particularly lucid and relevant discussion of the doctrine of equitable subrogation:

“The doctrine of subrogation is based “on considerations of equity and good conscience * * * to promote justice * * * [and] is granted as a means of placing the ultimate burden of the debt on the person who should bear it.” It is not a matter of contract or privity. It “may be invoked in favor of persons who are legally obligated to make good a loss caused by the negligent or tortious acts of another.” It is a device adopted by equity to compel the ultimate discharge of an obligation by him who in good conscience ought to pay it.” ... “Where the property of one person is used in discharging an obligation owed by another * * *, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee.”

Potoczny, supra at 380-81, 85 A.2d at 677 (citations omitted).

Our Supreme Court later adopted this rule in Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 352, 180 A.2d 414, 420 (1962) (“There can be no question of the right of the County to recover by way of subrogation from a third party tortfeasor all the salary, medical and hospital expenses paid to or for Topelski.” (emphasis in original)). In a footnote, our Supreme Court quoted an A.L.R. citation noting that Pennsylvania is the only jurisdiction which recognizes a city or county’s right to equitable subrogation in this situation, absent an express statute. Id. at n. 3.

Crown acknowledges that the collective bargaining agreement with Holloran’s union which obligated it to pay Holloran’s medical expenses is silent regarding subrogation rights. But the right of equitable subrogation is an established principle of law in Pennsylvania, Crown argues, and is thus available to Crown since the union contract does not state otherwise. Applying this principle, Crown urges that it would be inequitable to allow Holloran double recovery for his medical expenses.

The Hollorans argue that our courts have never applied the doctrine of equitable subrogation to a situation where a private employer pays for an employee’s medical expenses. Contending that this precise issue has never been addressed in Pennsylvania, they cite caselaw from several other jurisdictions which allows such a double recovery for policy reasons. The most thorough and eloquent of these cases is Frost v. Porter Leasing Corp., 386 Mass. 425, 436 N.E.2d 387 (1982), which the Hollorans excerpt at length in their brief.

Frost distinguishes the policies which underlie property indemnification contracts from personal injury insurance. Property insurance coverage usually involves liquidated amounts comparable to the actual damages suffered. Here, the doctrine of equitable subrogation can be applied accurately and efficiently. Personal insurance is thought of less as an indemnity contract than as a form of personal investment. The injured is more likely to have sustained intangible losses, and is less likely to be made truly whole by an award. An insured who pays a premium for coverage is entitled to be completely reimbursed before the insurer’s equitable right of subrogation is activated. Also, a subrogee’s intervention could conceivably make settling a case more difficult.

In Frost, the insured had already negotiated a lump-sum settlement with the third-party tortfeasor, so the court was loath to expend more resources in determining what part of that recovery could be earmarked as medical expenses. Hence, the Frost court saw fit to withhold the doctrine of equitable subrogation, and allow a personal injury victim possible double recovery. Frost, supra at 427-32, 436 N.E.2d at 389-91.

The trial court heard these arguments, and ruled from the bench in the Hollorans’ favor, denying Crown’s petition to intervene. While we ordinarily appreciate brevity in briefs and opinions, this “opinion” leaves us with very little to go on. The trial court held:

There are two issues involved here. One, whether Crown Cork had negotiated away its rights to recover [via] subrogation. Because apparently in the briefs it is stated that some other contracts with other locals had left the right of subrogation in the medical plan.
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[Two:] [T]here is no equitable right of subrogation in this type of case. The reasoning behind this reluctance to extend implied rights of subrogation from the limited sitúation is well explained in many cases. However, the court will base its decision as follows: Some Pennsylvania common law does not recognize a right of equity subrogation for medical and salary benefits absent a contractual agreement providing for subrogation. In the instant case the contract between Crown and Holloran is silent regarding rights of subrogation.
Furthermore, Crown apparently negotiated that right away in exchange for which it can be safely said that the union gave him other benefits.
For these two reasons the court will not permit intervention.

Trial court opinion (from oral argument transcript) 7/7/93 at 13--14, appellant’s brief at 23-24.

As an appellate court, we will not disturb a trial court’s ruling on a petition to intervene absent an abuse of discretion or an error of law. Wilson v. State Farm Mutual Auto Ins. Co., 512 Pa. 486, 517 A.2d 944 (1986). Because we find the trial court’s decision is neither supported by the facts of record, nor by what little Pennsylvania law there is on this subject, we must reverse.

I.

We would agree with the trial court that if Crown had explicitly discussed and surrendered subrogation rights in its union contract negotiations, then Crown should not be granted an equitable right of subrogation in this case. Unfortunately, there is not one iota of evidence in the record which supports this conclusion. The company handbooks detailing medical coverage make no mention of subrogation rights. See Handbook, “Your Employee Benefit Plan at Crown,” R.R. 36-42. If subrogation rights were a point of negotiations, then we would expect to see a statement somewhere in this handbook, the union contract or medical plan stating whether Crown is or is not subrogated to medical expense claims which it has paid on behalf of employees. The parties have not brought any such evidence to our attention.

According to its opinion, the trial court based its conclusion on the arguments in the parties’ briefs, which contain correspondence between the Hollorans’ attorney and Crown’s attorney on this topic. The first letter is from the Hollorans’ attorney, confirming a conversation in which Crown’s attorney allegedly admitted that Crown had bargained away subrogation rights. Crown’s attorney sent a reply letter stating that he had never said any such thing; rather, Crown’s attorney acknowledged that other union contracts contain subrogation language, but that he had no idea if subrogation was even mentioned in contract negotiations with Holloran’s union. See appellant Crown’s reply brief to Hollorans’ brief at 4-5. Since we can find no other evidence in the record on this issue, we must assume that the argument in the parties’ briefs about Crown negotiating away subrogation rights is based on this exchange.

As a general principle of law, an appellate court does not substitute its interpretation of the evidence for the trial court’s. “Where the record adequately supports the trial court, the trial court has acted within the limits of its judicial discretion.” Thompson v. City of Philadelphia, 507 Pa. 592, 599, 493 A.2d 669, 673 (1985) (discussing weight of the evidence review). Here, however, the record does not support the trial court’s finding that Crown had negotiated away its subrogation rights. The exchange between the Hollorans’ and Crown’s attorneys is not evidence. The record simply contains no genuine evidence on this matter, so the trial court has no basis for its conclusion. Hence, we must conclude that the trial court abused its discretion in finding that Crown has no right of subrogation for this reason.

II.

The other reason the trial court offered for its decision is that “Some Pennsylvania common law does not recognize a right of equity subrogation for medical and salary benefits absent a contractual agreement providing for subrogation.” Trial court opinion (from oral argument transcript) 7/7/93 at 14, appellant’s brief at 24. Sadly, the trial court does not tell us what cases so hold. Both parties acknowledge that there is no Pennsylvania law directly on point. Hence Crown analogizes to the cases recognizing a city’s or county’s right of equitable subrogation, while the Hollorans cite caselaw from other jurisdictions which is on point. Since the trial court does not offer us the benefit of its reasoning and research, we must conduct our own. After reviewing the cases and the policies underlying them, we believe that Crown should enjoy an equitable right of subrogation in this case.

The Hollorans argue that our courts have never recognized that a private employer or insurer is entitled to subrogation for medical expenses paid on behalf of an employee absent an express subrogation agreement (i.e., an equitable right of subrogation). The Hollorans claim that the closest our courts have come to addressing this issue was in the case of Associated Hospital Service of Philadelphia v. Pustilnik, 262 Pa.Super. 600, 396 A.2d 1332 (1979) vacated on other grounds, 497 Pa. 221, 439 A.2d 1149 (1981). Contrary to the Hollorans’ reading of Pustilnik, we find that this case contains broad language recognizing an equitable right of subrogation.

The issue in Pustilnik was whether an insurer which had a contractual (hence legal) right to subrogation could sue in equity for the same purpose. We began by quoting the principles of equitable subrogation outlined in Potoczny, supra. We then concluded that when a contract provides for subrogation, it merely declares rights which already exist in equity. “Because Blue Cross’ subrogation right existed in equity whether or not that right was recognized in its subscription agreement with Pustilnik, equity could hear Blue Cross’ claim.” Pustilnik, supra at 609, 396 A.2d at 1336.

The Hollorans offer no reason for distinguishing between the insurer in Pustilnik and the private employer in the present case. We must therefore agree with Crown that Pennsylvania law provides an equitable right of subrogation here. Since Mr. Holloran’s employment contract did nothing to alter this right, it should apply in the present case, unless sound policy considerations dictate otherwise.

III.

The Hollorans do offer contrary policy considerations as set forth in the Frost case from Massachusetts. We agree that the Frost decision is well reasoned, but disagree with the Hollorans’ contention that their situation “is exactly the kind of case that the Frost Court was talking about.” N.T. 7/7/93 at 8, appellant’s brief at 18. In Frost, the plaintiff had already negotiated a lump-sum settlement with the third-party tortfeasor when the insurer sought to recoup what it had paid to the plaintiff in medical expenses through subrogation. No amount of this lump sum had been earmarked as representing medical expenses. The Supreme Court of Massachusetts weighed the plaintiffs interest in full compensation against the insurer’s right to reimbursement through subrogation. The court felt that the cost of determining what portion of the settlement represented subrogable medical expenses would probably consume any excess recovery, and thus leave the plaintiff less than fully compensated. See Frost, supra.

The Hollorans’ situation is quite different from the plaintiff in Frost. The medical expenses in question here are already liquidated — we know exactly how much Crown has paid out on behalf of Mr. Holloran. By recognizing Crown’s equitable right of subrogation at this point, we are simply saying that Crown stands in the Hollorans’ shoes for purposes of recovering these medical expenses. The malpractice defendants are on notice that Crown holds this particular claim, instead of the Hollorans.

Allowing this subrogation will not discourage settlement. Any settlement can either include Crown, or the malpractice defendants can negotiate with and defend against Crown and the Hollorans separately. If the Hollorans want to settle, they may do so independently; Crown may pursue or settle its claim for the medical expenses independently of the Hollorans.

We also must reject the Hollorans’ argument from Frost that they can never truly be made whole, hence double recovery for medical expenses would not be unjust enrichment. The Frost court recognized that a pre-trial lump-sum settlement was less likely to represent full compensation to the plaintiffs than what they might have hoped to receive from a jury. Here, the Hollorans still have the opportunity to make their case to a jury and be compensated for specific elements of damage: pain and suffering, loss of life’s pleasures, loss of consortium, etc. If they are successful in their malpractice action, then the jury will return a verdict which makes them whole. But the Hollorans do not need to recover the medical expenses in question to make themselves whole, because they never paid them. Allowing the Hollorans to obtain double recovery, when they have the best opportunity which our legal system provides to recover all damages properly due them, would be classic unjust enrichment.

The trial court did express some concern over the footnote in Topelski, supra, which acknowledged that Pennsylvania is the only jurisdiction which allows a city or county a right of equitable subrogation for medical expenses paid on behalf of its employees. Trial court opinion (from oral argument transcript) 7/7/93 at 12, appellant’s brief at 22. We do not share the trial court’s concerns. Our Supreme Court does not hesitate to take Pennsylvania law in directions different from our sister jurisdictions, when a situation justifies it. In Topel ski, our Supreme Court merely noted that Pennsylvania law was unique in this respect — our high court expressed neither approval nor concern over its application of equitable subrogation principles, but merely endorsed it with its decision in the case. Similarly, we feel that the facts in this particular case favor a right of equitable subrogation, and even if Pennsylvania stands alone in this regard, we would not retreat from our holding.

IV.

Metropolitan Hospital, one of the malpractice defendants, has filed a brief urging us to deny Crown’s petition to intervene because Crown has waited four years since the Hollorans filed their original suit to bring its petition. Metropolitan Hospital argues that the statute of limitations has lapsed with respect to Crown, and that the Hospital should not have to incur more litigation costs while Crown “catches up” in discovery matters.

Metropolitan hospital is mistaken as to its first argument for denying Crown’s petition. Since Crown stands in the Hollorans’ shoes for subrogation purposes, its timeliness in petitioning to intervene is measured by the statute of limitations as it accrues against the Hollorans, the subrogors. Insurance Company of North America v. Carnahan, 446 Pa. 48, 49-51, 284 A.2d 728, 729 (1971). As to the second argument, Metropolitan Hospital did not raise this at the trial, and has thus waived it for appeal. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

It is, of course, a time-honored principle that he who seeks equity must do equity. Crown should not be permitted to enter the litigation at this point without bearing its proportional share of the litigation costs. If Metropolitan Hospital can prove that it has incurred costs which it would not have otherwise incurred had Crown intervened promptly, then these costs may be properly charged to Crown. Since the court’s equity jurisdiction has been invoked by Crown’s petition to intervene, we would have litigation costs distributed equitably in this case.

The order denying Crown’s petition to intervene is reversed, and this case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

McEWEN, J., concurs in the result.

      . We presume the trial court is referring here to the many cases from other jurisdictions cited in the Hollorans’ brief, particularly Frost, supra.

      . The Hollorans offer the employee benefit handbook and the letter of their attorney to support their contention that “[a]s part of contract negotiations, Crown Cork & Seal agreed not to pursue any subrogation claims such as the one involved in this case.” Appellees’ brief at 16. As noted before, the handbook is entirely silent on subrogation; the letter, without its response from Crown denying its claims, is self-serving.

      . On appeal, our Supreme Court affirmed the .principle of equitable subrogation adopted by the Superior Court, but vacated and remanded to recalculate the amount which Blue Cross was due as subrogee. Our Supreme Court noted that Blue Cross could not claim as subrogee any more- money than it had actually paid out on behalf of its insured. Associated Hospital Service v. Pustilnik, 497 Pa. 221, 225-27, 439 A.2d 1149, 1151 (1981).

      . We note that our present holding is not contrary to the well-reasoned Massachusetts case of Frost, supra, because of the considerable factual differences.

      . While malpractice litigation is often quite costly, the presentation of medical expenses is usually the simplest part of the case.


text:
    637 A.2d 322
    MOLAG, INC. v. CLIMAX MOLYBDENUM COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1993.
    Filed Feb. 7, 1994.

      Kenneth Ficerai, Greensburg, for appellant.
    David B. Buerger, Pittsburgh, for appellee.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Appellant, Climax Molybdenum Company (Climax), appeals from the judgment entered after denial of its motion for post-trial relief following a nonjury trial in which a verdict was entered in favor of appellee, Molag, Inc., in the amount of $397,150.

The parties originally entered into a mining lease on December 6, 1982 for Molag to remove slag from Climax’s premises. Through the years, several addenda were entered into with the final contract for three years being signed December 1, 1990. In May 1991, Molag removed 113 tons of slag from a pile appellant claims was outside the permitted mining area. Accordingly, appellant exercised its right under the contract to terminate the lease. Appellee filed a successful suit for breach of contract which resulted in the judgment now being appealed.

Appellant argues Molag breached the mining lease by removing slag from an area outside of the area delineated in the lease. Specifically, Climax contends Molag removed “uncrushed” slag when the lease only permitted the removal of “crushed” slag and in support of this argument, introduced into evidence a map which allegedly designated the permissible area for Molag to remove slag. This map was used in conjunction with the lease to obtain a Pennsylvania Department of Environmental Resources (DER) mining permit, which was required to remove the slag. Therefore, by going outside the permitted area, appellant contends appellee breached the lease.

The trial court found both the map and contract ambiguous. The map contained no directions, legend, metes, bounds or landmarks which clearly defined the alleged designated area. Furthermore, the contract permitted the removal of “slag” and did not specify “crushed” or “uncrushed.”

When interpreting a contract, the trial court must determine the intention of the parties. Where; an ambiguity exists, the courts are free to construe the terms against the drafter and to consider extrinsic evidence in so doing. Raiken v. Mellon, 399 Pa.Super. 192, 582 A.2d 11 (1990). In the instant case, the lease is not entirely clear on its face. The term “slag” is neither defined nor limited to “crushed” slag, and the map does not specifically delineate the permissible mining areas. As such, the trial court was free to consider other evidence and construe the document against the drafter, Climax. In so doing, the court also considered the fact the appellant’s plant manager witnessed the removal of the slag and made no effort to halt or question the slag in question. Also, uncrushed slag had been previously removed with the consent of appellant. Accordingly, the trial court found appellee did not breach the lease. Upon review, we cannot disagree and we find the lease construction as interpreted by the trial court entirely reasonable under the circumstances.

Climax also claims the removal of the slag from the allegedly prohibited area was “surface mining” which requires a DER permit, and since appellee did not have a permit for this area, it violated the lease, which required appellee to abide by all DER regulations and Pennsylvania laws. In contrast, the trial court found Molag did not engage in “surface mining” in violation of DER regulations since 52 P.S. § 3303 Definitions, exempts handling or processing slag on the premises of a manufacturer. Specifically, “[t]he term (surface mining) does not include any of the following: ... (3) The handling, processing, or storage of slag on the premises of a manufacturer as a part of the manufacturing process.” 52 P.S. § 3303(3) “Surface mining.” The plain language of the statute clearly exempts the activity engaged in by appellee. However, to support its contention, appellant relies on the expert testimony of a Pennsylvania DER inspector’s supervisor.

The DER official was called to testify regarding the statute in question. His testimony was based on the premise that slag from the manufacturing process which sits for a predetermined period of time in a pile ceases to be considered such and thus requires a DER mining permit. However, the official could point to no statute or regulation to support his premise. He simply relied on a general understanding among DER officials. Furthermore, the official testified that appellee was never cited by the DER for any violations.

In a nonjury trial, the trial judge sits as the finder of fact. In a case such as this, where the credibility of a witness is at issue, the weight to be assigned the testimony of the witness is within the exclusive province of the fact-finder. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986). The trial court, as sole assessor of credibility, may believe all, part or none of the evidence presented. Commonwealth v. Blystone, 421 Pa.Super. 167, 617 A.2d 778 (1992). From the record, it is apparent the trial court found the expert’s testimony not persuasive and, therefore, of little assistance. Accordingly, we find the trial court did not abuse its discretion in finding a permit was not required to remove the slag, and the lease was not breached in this respect.

Climax also argues appellee has failed to prove any actual damages. Appellant contends the alleged damages are mere conjecture and speculation as appellee presented no evidence of contracts for the sale or use of the slag nor that it bid and lost contracts for which the slag was to be used.

The determination of damages is a factual question to be decided by the fact-finder. This duty of assessing damages is within the province of the fact-finder and should not be interfered with unless it clearly appears that the amount awarded resulted from partiality, caprice, prejudice, corruption or some other improper influence. The fact-finder must assess the worth of the testimony, by weighing the evidence and determining its credibility, and by accepting or rejecting the estimates of the damages given by the witnesses. In reviewing the award of damages, the appellate courts should give deference to the decisions of the trier of fact who is usually in a superior position to appraise and weigh the evidence.

Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 117-18, 464 A.2d 1243, 1257 (1983).

Generally, under Pennsylvania law, damages need not be proved -with mathematical certainty, but only with reasonable certainty, and evidence of damages may consist of probabilities and inferences. Although the law does not command mathematical precision from the evidence in finding damages, sufficient facts must be introduced so that the court can arrive at an intelligent estimate without conjecture. Where the amount of damage can be fairly estimated from the evidence, the recovery will be sustained even though such amount cannot be determined with entire accuracy. It is only required that the proof afford a reasonable basis from which the fact-finder can calculate the plaintiffs loss.

Id. at 119, 464 A.2d at 1257-1258 (citations omitted). In the instant case, the trial judge, sitting as the trier of fact, awarded appellee $397,150 based on the remaining years of the contract, a minimum removal requirement stated in the contract, and an average quantity of slag removed over the previous five years. Using these figures, the court performed a detailed computation for replacement costs using fair market values. Accordingly, we find these computations not to be speculative or conjecture. Furthermore, according to the record, appellee did not make contracts to sell the slag, but made contracts for pavinjg in which the slag was used. In this respect, appellee had shown that it had used all of the previous slag removed from the lease premises. Accordingly, it is entitled to damages for the additional costs of replacing the slag which appellant no longer will supply.

Finding appellant’s arguments devoid of merit, we affirm the judgment of the trial court.

Judgment affirmed.


author: WIEAND, Judge:

text:
    637 A.2d 331
    COMMONWEALTH of Pennsylvania, v. Richard Gleason KNOWLES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 25, 1993.
    Filed Feb. 3, 1994.

      Gregory S. Fox, Ellwood City, for appellant.
    William M. Panella, Dist. Atty., New Castle, for Com., appellee.
    Before WIEAND, KELLY and MONTGOMERY, JJ.
   WIEAND, Judge:

Richard Gleason Knowles was tried by jury and was found guilty of indecent assault and endangering the welfare of a child in connection with conduct directed toward his teenage step-granddaughter. Post-trial motions were denied, and Knowles was sentenced to a term of imprisonment. On direct appeal from the judgment of sentence, Knowles argues that the trial court erred when it allowed the alleged victim to testify to incidents of sexual abuse by appellant while the parties were living in Texas several years before the offenses charged in this case. This is a difficult issue and requires our careful review.

The evidence was that during the summer of 1989 or 1990, when Amy J. K. was either 13 or 14 years of age, she went to live with Knowles and his wife, who was Amy’s grandmother. Amy’s grandparents had recently moved to Pennsylvania from Texas and had established a home in close proximity to where Amy lived. Thereafter, during the period between Thanksgiving and Christmas, while Amy and Knowles were alone in the latter’s home, Knowles called to Amy as she stepped from the shower to sit with him on the couch. When she did so, Knowles moved the towel which was around her and inserted two fingers in her vagina. He told her she was “being good” and shouldn’t say anything to anyone about what had happened.

During the following spring, according to the Commonwealth’s evidence, appellant entered Amy’s bedroom while Amy’s grandmother was away and told Amy to remove her clothes. When she refused, appellant removed the child’s pants and penetrated her digitally in the same manner as before. He told her again that she was a good girl and should not say anything because if she did people would be disappointed in her. There was also testimony that appellant would ask Amy to hug and kiss him; whereupon, he would fondle her breasts through her clothing. At some time thereafter, Amy moved back with her mother and father. Amy ran away in the fall of 1991. Upon her return, she stayed with an aunt and uncle. The alleged abuse stopped once Amy went to live with her relatives.

Over a defense objection, Amy was allowed to testify to events which had occurred in Texas when she was seven or eight years of age. At that time, Knowles was divorced from Amy’s grandmother and was living alone. Amy stayed with appellant for a week when her parents, who were also living in Texas, made a trip to Pennsylvania. She testified that appellant had told her there were two beds in his bedroom and she was expected to sleep with him. On the first night, appellant asked her to come into his bedroom and give him a good night kiss. According to Amy, when she went in, appellant was undressed. He then removed her pajamas and told her to “sit on top of him.” When she did so, according to her testimony, appellant had sexual intercourse with her. He told her she was a good girl and should not say anything to anyone. This conduct was repeated for the next five nights. Amy was also asked to “put [her] mouth on his private part” and did as she was requested. When her family returned from Pennsylvania she said nothing of these events to them. Amy’s family moved to Pennsylvania the following year.

In general, evidence of other wrongful conduct not charged in the information on which the defendant is being tried is inadmissible at trial except in certain limited circumstances. Commonwealth v. Kramer, 389 Pa.Super. 136, 140, 566 A.2d 882, 884 (1989); Commonwealth v. Campbell, 342 Pa.Super. 438, 442, 493 A.2d 101, 104 (1985); Commonwealth v. Rodriguez, 343 Pa.Super. 486, 494, 495 A.2d 569, 573 (1985). One such exception arises in the prosecution of sexual offenses. Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (1895); Commonwealth v. Rodriguez, supra; Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979). Evidence of prior sexual relations between defendant and his or her victim is admissible to show a passion or propensity for illicit sexual relations with the victim. Commonwealth v. Kramer, supra 389 Pa.Super. at 140, 566 A.2d at 884. See also: Commonwealth v. Dunkle, 529 Pa. 168, 186, 602 A.2d 830, 839 (1992); Commonwealth v. Buser, 277 Pa.Super. 451, 455, 419 A.2d 1233, 1235 (1980); Packel and Poulin, Pennsylvania Evidence § 405.1, at 171 (1987). This exception is limited, however. See: Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955). The evidence is admissible only when the prior act involves the same victim and the two acts are sufficiently connected to suggest a continuing course of conduct. Commonwealth v. Kramer, supra 389 Pa.Super. at 141, 566 A.2d at 884. The admissibility of the evidence is not affected by the fact that the prior incidents occurred outside of the statute of limitations. See: Commonwealth v. Bell, supra; Commonwealth v. Buser, supra.

At the time of the prior incidents in Texas, Amy was seven or eight years of age. At the time of the events for which appellant was being tried in Pennsylvania, Amy was thirteen or fourteen years of age. The several incidents, therefore, were separated by a period of at least five years, and possibly by as many as seven years. Remoteness, however, is only one factor to be considered when determining the admissibility of the evidence. Packel and Poulin, Pennsylvania Evidence § 405.1, at 172. Whether evidence is too remote in time to be probative, moreover, is largely within the discretion of the trial court. Commonwealth v. Gibson, 363 Pa.Super. 466, 469, 526 A.2d 438, 440 (1987).

Appellant’s conduct in Texas was not a single, isolated act. He and Amy were alone every night for a week, and the sexual assaults continued over a six day period. They were committed by one who normally did not have the opportunity to become intimate with Amy. The acts stopped when Amy returned to her parents and, of course, after she moved with her parents to Pennsylvania. After appellant also moved to Pennsylvania, however, the sexual abuse was resumed when appellant had an opportunity to be alone with Amy. We conclude, therefore, that the evidence was relevant to show that appellant had a continuing passion for illicit sexual contact with Amy and acted on that passion when the opportunity arose. See: Vogel v. State, 315 Md. 458, 554 A.2d 1231 (1989); State v. T.W., 220 Mont. 280, 715 P.2d 428 (1986); State v. Schut, 71 Wash.2d 400, 429 P.2d 126 (1967); Sanford v. State, 76 Wis.2d 72, 82, 250 N.W.2d 348, 352 (1977).

The prior conduct need not be precisely the same conduct as that giving rise to the criminal charges. Commonwealth v. Dunkle, supra, 529 Pa. at 186, 602 A.2d at 839. It is enough that a reasonable inference can be drawn of “a passion or propensity for illicit sexual relations with the particular person concerned in the crime” for which the defendant is being tried. Id. See: McCormick, Evidence § 190, at 803 (4th ed. 1992). Here, the conduct of appellant toward his wife’s granddaughter was sufficiently similar, and the evidence was that it occurred whenever appellant had an opportunity to engage therein.

The Superior Court’s decision in Commonwealth v. Campbell, supra, does not require a different result. There, where the charges were statutory rape and incest, the court held irrelevant and inadmissible a prior assault by the defendant against his daughter, the alleged victim, which had occurred three or four years before the incident for which the defendant was being tried. In that case, the defendant and his daughter had been living continuously in the same household during the intervening period, and the prior assault had occurred only once. The trial court told the jury that the testimony was to demonstrate the propensity or inclination of the father to commit this kind of a crime. This was clearly improper, and the Superior Court, therefore, awarded a new trial. See: Commonwealth v. Boulden, supra.

In the instant case, the evidence did not refer to a single, prior incident but to a series of incidents between appellant and his wife’s granddaughter when the two were alone. Moreover, there is no complaint about the trial court’s jury instructions. The evidence established, in effect, a design, a passion which appellant had for sexual contact with his step-granddaughter.

After careful consideration, therefore, we conclude that the trial court’s evidentiary ruling did not constitute an abuse of discretion.

The judgment of sentence is affirmed.

      . Knowles and Amy’s grandmother were subsequently remarried.