author: WIEAND, Judge: CIRILLO, President Judge, BROSKY, Judge,

text:
    580 A.2d 1341
    Concepcion L. RIVERA, Administratrix of the Estate of Frederick L. Rivera, Deceased, v. The PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC. a/k/a St. Charles Seminary and Our Lady of Lourdes Catholic Church. Appeal of the PHILADELPHIA THEOLOGICAL SEMINARY OF ST. CHARLES BORROMEO, INC. a/k/a St. Charles Seminary.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1990.
    Filed Aug. 30, 1990.
    Reargument Denied Oct. 15, 1990.

      Joseph T. Bodell, Jr., Philadelphia, for appellant.
    Jeffrey M. Stopford, Media, for Rivera, appellee.
    Alan R. Kutner and Glenn F. Rosenblum, Korn, Kline & Kutner, P.C., Philadelphia, for Our Lady, appellee.
    Before GRILLO, President Judge, and WIEAND and BROSKY, JJ.
   WIEAND, Judge:

Frederick L. Rivera, age 12, drowned on December 17, 1976, in a pool owned by The Philadelphia Theological Seminary of St. Charles Borromeo, Inc. (the Seminary) while swimming with a group of altar boys from Our Lady of Lourdes Catholic Church (the Church). His mother, Concepcion L. Rivera, who was also the administratrix of his estate, instituted wrongful death and survival actions to recover damages for his death. On May 4, 1981, a jury attributed causal fault as follows: the Church—65%; the Seminary—30%; and the decedent—5%. On appeal, the Superior Court reversed and remanded for a new trial generally. See: Rivera v. Philadelphia Theological Seminary, 326 Pa.Super. 509, 474 A.2d 605 (1984). The Supreme Court, however, modified the award of a new trial by limiting the new trial to the “Seminary’s proportionate liability, if any, in the damage judgment Common Pleas has entered on the jury verdict for plaintiff and the Seminary’s right to indemnity from the Church for any payment it may be required to make.” Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 26, 507 A.2d 1, 14 (1986). The judgment as to the amount of damages was affirmed and reinstated. Thus, upon retrial, the Seminary’s liability could not exceed 31.6 percent of the amount of damages awarded in the first trial (30% divided by the 95% causal negligence of both defendants). As to the new trial between the Church and the Seminary, the Court said, the Church “will have the burden of proving the Seminary’s causal negligence, if any. The plaintiff may participate in the new trial if she so chooses to protect any interest she may have in preserving her right to collect her judgment from the Seminary.”

Following a second trial in 1988, a jury again found the Seminary guilty of causal negligence in the death of Frederick Rivera and determined its portion of the fault to be in excess of the fault found by the first jury. In accordance with the Supreme Court’s direction, however, the trial court molded the verdict according to the Seminary’s degree of fault as found in the first trial. The trial court denied post-trial motions and added damages for delay.

On appeal, the Seminary argues that the evidence failed to show that it had breached a duty owed to the decedent or that any act or failure to act on its part had contributed causally to his death. It also contends that it is entitled to a new trial because of errors occurring during the trial. These alleged errors include: (1) an improper instruction regarding the duty of care owed by the Seminary; (2) excessive participation in the trial by the plaintiff-administratrix; and (3) improper remarks by plaintiff’s counsel during closing argument to the jury. Finally, the Seminary argues that the trial court erred in molding the verdict and in calculating delay damages.

When the evidence is considered in the light most favorable to the verdict winner, as we are required to do, see: Mancini v. Morrow, 312 Pa.Super. 192, 197, 458 A.2d 580, 582 (1983), it is clear that it was sufficient to support the jury’s finding that the Seminary had breached a duty owed to the minor decedent. The Seminary, as owner of the pool, had a duty to exercise those precautions which a reasonably prudent owner would have taken to prevent injury to those persons whom it knew or should have known were using its pool. Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 18-19, 507 A.2d 1, 9-10 (1986). Whether the Seminary breached this duty and whether its negligence, if any, was a substantial factor in causing the decedent’s death were issues for the jury. The jury’s determination can be set aside only if it is clear as a matter of law that reasonable minds could not differ. Alumni Association of Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 369 Pa.Super. 596, 602, 535 A.2d 1095, 1098 (1987); Vernon v. Stash, 367 Pa.Super. 36, 46, 532 A.2d 441, 446 (1987). Here, the Seminary’s alleged freedom from fault was not clear. A jury could have found, in view of the evidence, that the Seminary knew or should have known that its pool was being used by children and that it failed to exercise reasonable care to prevent injury to them.

The trial court did not err when it refused to charge the jury, as requested by the Seminary, that it had no duty to provide a lifeguard. The issue, rather, was whether the Seminary had exercised reasonable care to prevent injury to persons whom it knew or should have known to be using the pool.

The primary duty of a trial judge in charging the jury is to clarify the issues so that the jury may comprehend the questions that they are to decide. Easton Nat. Bank & Trust Co. v. Union Nat. Bank & Trust Co. of Souderton, 237 Pa.Super. 316, 352 A.2d 544 (1975). As long as the trial judge chooses a form of expression which adequately and clearly covers the subject, the judge is not required to use the exact language of a requested point. McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980).

Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 29, 527 A.2d 134, 136 allocatur denied, 517 Pa. 629, 539 A.2d 810 (1987). Instantly, the trial court properly instructed the jury on common law principles of negligence. It was for the jury to determine whether the Seminary had been negligent in failing to take reasonable precautions to prevent access to its pool when a competent lifeguard was not present and whether the Seminary could reasonably rely upon Father Flynn to supervise the activities of the boys while they were using the pool.

The plaintiff-administratrix’s participation in the second trial did not exceed the directions of the Supreme Court or constitute an improper retrial of her claim. The issue, upon retrial, was whether the Seminary had been negligent in causing the decedent’s death and, if so, the degree of such negligence in relation to the negligence of the Church. Under Pennsylvania law, if the Seminary were found guilty of causal negligence, it would become liable jointly and severally with the Church. As such, the plaintiff could proceed against either defendant for the full amount of a judgment recovered against both defendants. It was in recognition of this right that the Supreme Court expressly allowed the decedent’s administratrix to participate in the new trial. When the Supreme Court further stated that the burden of proving the Seminary’s causal negligence would be on the Church, the Court did not limit the plaintiff’s participation in the trial in any way. It did no more than recognize that the Church’s liability had been established finally in the first trial and that it had the burden of shifting a portion of that liability to the Seminary. The evidence to accomplish this was evidence necessary to establish the Seminary’s liability to the decedent’s administratrix. Whether the evidence was produced by the plaintiff or the Church at the second trial, therefore, was of no consequence. So long as the evidence was competent, it was immaterial whether the same was presented by the Church or by the plaintiff-administratrix. The Seminary is not entitled to a new trial merely because the plaintiff-administratrix participated fully in the second trial.

A more troublesome issue is that pertaining to a statement made by counsel for the plaintiff-administratrix during closing argument which told the jury that the jury in the first trial had found the Seminary responsible with the Church for the boy’s death. Not only was there no evidence of this fact, but counsel and the trial judge had agreed pre-trial that no reference would be made to the prior verdict during the second trial. For plaintiffs counsel to violate this agreement and to place before the jury information which was irrelevant and prejudicial and about which no evidence had been produced was indefensible.

Appellees contend that counsel’s remark was a proper, response to a statement by appellant’s counsel that a witness “believes what the first jury in this case concluded, that Fred Rivera drowned because Father Flynn did not perform his job as the lifeguard in a safe and competent manner.” We reject this argument. The statement by appellant’s counsel was consistent with information which had been given to the jury by the court, i.e., that the prior jury had found the Church liable to the plaintiff. The purpose of the action then being tried by the jury was to determine whether the Seminary was jointly and severally liable with the Church for Frederick Rivera’s death, and the jury was so instructed. For counsel to tell the jury that a prior jury had already made this determination was clearly improper.

It appears, however, that counsel’s remark was cured by a careful and thorough cautionary instruction delivered by the learned trial judge. The judge said:

There was, during closing argument, some discussion between counsel concerning what happened at the prior trial with respect to the seminary. This is unfortunate, it’s not something that was supposed to be placed before you, because your decision on this is supposed to be an entirely independent decision. You go on what you heard here, how you sized it up and what you believe the truth of the matter is. You don’t go on what you think someone else might have done. That’s not at all important. It’s quite unusual for a jury at a second trial—and we don’t get that many second trials, by the way. I’ve been a Judge here ten years in the Common Pleas Court, and in another Court before that. This is only about the third or fourth one I’ve had, so they don’t come down for trial that often, back down. Rarely when they do is the same thing done precisely as it was done the first time.
Furthermore, in this case I must tell you that the jury at the first trial was given totally erroneous instructions by the Judge, the Trial Judge at that time who is now a retired Judge, but was a highly respected Judge and an outstanding lawyer before that and very well thought of, but he did have a lapse in instructing the jury on the question of the seminary’s negligence in this matter. Both the Superior Court and the Supreme Court characterized his instructions on that point as incomprehensible and of very little use to the jury. It’s really hard to tell what the jury would have done in that case had they been given a proper charge. Their decision on that point is best dismissed as guesswork because of the inadequate jury charge they received.
So again, that’s another reason why you shouldn’t worry about what was done before. That’s not your mandate, you’re not supposed to worry about that in this case. This case is before you, it’s entirely within your discretion to do whatever you think is proper in the case, provided you do follow the guidelines which I’m going to give you.

The Supreme Court has repeatedly held that “the matter of withdrawing a juror because of [a] line of argument pursued by counsel in addressing a jury or at any stage of the proceeding is subject largely to the discretion of the trial court.” Martin v. Philadelphia Suburban Transportation Co., 435 Pa. 391, 394, 257 A.2d 535, 537 (1969). “Whether a court abuses its discretion in refusing to [declare a mistrial] because of improper remarks of counsel must be determined by the circumstances under which the statement was made and by the precautions taken by the court and counsel to prevent its having a prejudicial effect.” Id. In this case, the trial court denied a motion for mistrial after the improper remark had been made and carefully instructed the jury that the prior jury had been given incorrect instructions on the law and that its finding was not reliable and did not relieve the jury in this case of its duty to make an independent determination of the Seminary’s fault based on the evidence which it had heard. This was adequate to cure the improper statement by plaintiff’s counsel. The trial court did not abuse its discretion by refusing also to declare a mistrial.

The trial court did err, however, in awarding delay damages against the Seminary at the rate of ten (10%) percent per annum. The original verdict had been returned on May 4, 1981. Delay damages were thereafter added, and judgment was entered in favor of the plaintiff and against the defendants in the amount of $1,035,393.40. This judgment bore interest at the legal rate of six (6%) percent. The amount of the judgment was thereafter affirmed by the Supreme Court. A new trial was granted to the Seminary only to determine the portion of the judgment, if any, which the Seminary was required to pay. The burden of proving such liability was placed on the Church and not on the plaintiff. When it was subsequently determined in a second trial that the Seminary’s proportionate part of the liability was to be 31.6% of the judgment previously entered, that part of the judgment should have borne interest at the same rate which was already accumulating against the Church, i.e., six (6%) percent. The amount of the judgment hád been determined—it was not subject to negotiation prior to the second trial—and it was then accumulating interest at the statutory rate of six (6%) percent. The Seminary’s liability was a portion of this amount. The amount of plaintiff’s recovery could not be enhanced by the verdict in the second trial. This amount had been determined; judgment had been entered therefor; and it bore interest at the legal rate.

The purpose of Pa.R.C.P. 238 is, inter alia, to expedite the handling of cases by promoting early settlements. Its applicability must be determined according to whether a pre-trial offer of settlement, if any, was reasonable in light of the verdict subsequently returned by the jury. After a verdict has been returned, it bears interest at the legal rate of six (6%) percent This rate of interest has been established by statute. See: 42 Pa.C.S. § 8101 and Act of January 30, 1974, P.L. 13, No. 6, § 202, 41 P.S. § 202. Here, the amount of the plaintiff’s recovery had been determined on May 4, 1981; judgment had been entered; and the judgment had been affirmed by the Supreme Court. This judgment earned interest at the legal rate of six (6%) percent. When it was subsequently determined that the Seminary’s proportionate part of the liability was 31.6%, the Seminary was required by statute to pay, in addition, interest at the rate of six (6%) percent so long as the judgment remained unpaid. To assess delay damages at the rate of ten (10%) percent was not authorized by statute or by the terms of R.C.P. 238. Not only was it unauthorized, but such an assessment served only to punish the Seminary because it was a defendant which had won a new trial because of error committed by the court during the first trial. Such a result would be unconscionable.

The judgment entered by the trial court is modified by eliminating the award of delay damages at the rate of ten (10%) percent and substituting therefor post-judgment interest at the legal rate of six (6%) percent. As so modified, the judgment entered by the trial court is affirmed.

CIRILLO, President Judge, filed a concurring statement.

BROSKY, J., filed a concurring and dissenting opinion.

CIRILLO, President Judge,

concurring:

I concur in the result reached by my esteemed colleague, Judge Wieand. I write separately to discuss certain issues that the majority opinion does not address. Specifically, the appellant has advanced constitutional challenges to Pennsylvania Rule of Civil Procedure 238. While previously I have dissented to majority opinions concerning Pa.R.C.P. 238, in the interests of uniformity and stability in the law, I will now concur.

My feelings on the constitutional infirmities of Pa.R.C.P. 238 have been duly recorded. See Dietrich et al. v. J.I. Case Co. et al., 390 Pa.Super. 475, 568 A.2d 1272 (1990) (Cirillo, P.J., concurring and dissenting); Schrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 562 A.2d 875 (1989) (Cirillo, P.J. dissenting); Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc) (Cirillo, P.J. dissenting); see also Tindal v. Southeastern Pennsylvania Transportation Authority, 385 Pa.Super. 94, 560 A.2d 183 (1989) (en banc) (Cirillo, P.J., concurring and dissenting); Snelsire v. Moxon, 384 Pa.Super. 85, 557 A.2d 785 (1989) (en banc) (Cirillo, P.J., concurring); King v. Southeastern Pennsylvania Transportation Authority, 383 Pa.Super. 420, 557 A.2d 11 (1989) (en banc) (Cirillo, P.J., dissenting); Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989) (en banc) (Cirillo, P.J., dissenting).

I am aware that we, as Superior Court Judges, may not ignore holdings of our supreme court or en banc decisions of this court. Dietrich, supra; Commonwealth v. Gambal, 522 Pa. 280, 561 A.2d 710 (1989). I am also aware, however, that “disagreement among judges is as true to the character of democracy, and as vital as freedom of speech itself.” Fuld, The Voices of Dissent, 62 Colum.L.Rev. 923, 926 (1962). Moreover, “we may remind ourselves, unanimity in the law is possible in only fascist and communist countries.” Id.

Having vehemently dissented on the constitutional debilities that I feel pervade rule 238, I now enter a reluctant concurrence. See Witkin, Manual on Appellate Court Opinions, § 118 (1977). Justice Traynor advises:

Once [the judge] has dissented ... he has had his day. He should yield to the obligation that it is upon him to live with the law as it has been stated. He may thereafter properly note that he is concurring under compulsion, abiding the time when he may win over the majority, but he should regard dearly enough the stability of the law that governs all the courts in the state not to renew the rataplan of his dissent.

Traynor, Some Questions on the Work of State Appellate Courts, 24 U.Chi.L.Rev. 218, 219 (1957). Although I realize that stability is best served by the entry of an indisposed concurrence, I cannot remain silent. Consequently, I feel compelled to once again “renew the rataplan” of previous dissents.

Initially, appellant contends that because rule 238 makes defendants responsible for delays which they did not cause, it violates due process. The parties in Schrock, King, and Miller, did not engage in any conduct that delayed the trial of their cases. However, because rule 238 does not provide for the exclusion of periods of delay not caused by either party[,]” Miller, 381 Pa.Super. at 241, 553 A.2d at 446, delay damages were assessed against the defendants in each of those cases. Likewise here, a portion of the delay was not the fault of either party, yet rule 238 commands us to assess delay damages against the appellant for such delay when no adequate settlement offer has been made, and none of the delay was the fault of the plaintiff. Pa.R. C.P. 238(b)(1).

By merely subtracting the delay caused by the plaintiff from the overall delay, rule 238 makes defendants responsible for delays caused by neither party. Ceresini, 380 Pa.Super. at 421, 552 A.2d at 260 (Cirillo, P.J., dissenting). This calculation makes defendants culpable simply because they have chosen to defend their case. Id.; Dietrich, 390 Pa.Super. at 491, 568 A.2d at 1280 (Cirillo, P.J., concurring and dissenting).

The appellants additionally contend that, although procedural, rule 238’s application impacts the substantive rights of litigants.

The Pennsylvania Constitution vests in the Supreme Court “the power to prescribe general rules governing practice, procedure and the conduct of all courts ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant ...” Const, art 5, § 10(c) (emphasis added). Pursuant to this power, the Supreme Court appointed a Civil Procedural Rules Committee to assist in the preparation and revision of the Rules of Civil Procedure, which were adopted by the Supreme Court. See, 42 Pa.C.S., Rules of Civil Procedure, at XXV.
The Constitution specifically states that the Rules of Civil Procedure do not enlarge the substantive rights of any litigant.

Svetlik v. Svetlik, 377 Pa.Super. 496, 500, 547 A.2d 794, 796-797 (1988). Because, in my opinion, rule 238 operates to alter the substantive rights of the parties, it exceeds the rulemaking authority of the Pennsylvania Supreme Court, and is therefore unconstitutional. Dietrich, 390 Pa.Super. at 491, 568 A.2d at 1280 (Cirillo, P.J., concurring and dissenting). The supreme court, in Craig v. Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), suspended former rule 238 under the following rationale:

There is no point in contending that a procedural rule may exist that punishes without fault, and is yet consistent with Due Process. Neither is there point in arguing that punishing a defendant qua defendant does not smack of a substantive enlargement of duties owed____ We today suspend the rule because experience shows that the ends sought run too tight a gauntlet through Due Process, by denial of a forum to assess fault for the delay sought to be avoided. In short, Rule 238 has become an [incontestable presumption that all fault lies with a defendant. There are too many reasons why such is not always the case ...

Id., 512 Pa. at 65, 515 A.2d 1353. The concerns that led to the demise of the old rule 238 are still present, albeit to a lesser extent, in the new rule. The current rule 238, in an effort to encourage the settlement of meritorious claims and alleviate court congestion, continues to run too tight a gauntlet through due process, by denying defendants an exclusion for periods of delay that were the fault of neither party. Consequently, rule 238, as previously stated, punishes defendants simply because they have chosen to litigate their case. Dietrich, 390 Pa.Super. at 491, 568 A.2d at 1280 (Cirillo, P.J., concurring and dissenting). It therefore remains clear that punishing a defendant qua defendant in the form of delay damages is a substantive enlargement of duties owed; an enlargement which under the Constitution of this Commonwealth requires legislative action. Id.

Moreover, the current rule 238 has become an “incontestable presumption” that all fault that is not the plaintiffs fault lies with the defendant. The instant matter, as well as Schrock, King, and Miller, illustrate that such is not always the case.

BROSKY, Judge,

concurring and dissenting.

I concur with the majority’s conclusion that the trial court properly charged the jury as to the Seminary’s duty to provide a lifeguard. I also concur in the majority’s discussion of the issues pertaining to the trial court’s assessment and calculation of delay damages. However, I disagree with the majority’s finding that the participation by the plaintiff-administratrix (hereinafter referred to as Rivera) did not exceed the scope of the remand instructions of the Supreme Court. Further, I disagree with the majority’s conclusion that the cautionary instruction given by the trial court was sufficient to cure counsel’s prejudicial remarks pertaining to the jury verdict in Rivera I. Hence, I must respectfully dissent.

Although the majority has correctly recognized that the Supreme Court placed the burden of proving the Seminary’s liability upon the Church, see ante at p. 1345, it nevertheless proceeds to affirm the trial court’s decision to permit Rivera to re-litigate her case. Because I would interpret the remand instructions of the Supreme Court in a different manner, I find that appellee’s participation in this case exceeded the scope of participation permitted by the Supreme Court.

Prior to the beginning of the second trial, both counsel for the Seminary and Rivera’s counsel had a lengthy discussion with the trial court regarding the proper interpretation to be accorded the Supreme Court’s opinion in Rivera I. See N.T., 4/11/88, Volume I. Rivera’s counsel and the trial court appeared to operate under the assumption that if Rivera was not permitted to relitigate her case as to the issue of liability, then Rivera’s cause of action against the Seminary would be eliminated. See N.T., 4/11/88, Volume I at p. 51. Based on this conclusion, the trial court permitted Rivera to relitigate the liability portion of her case against the Seminary and the Church. However, this reasoning was erroneous.

This is a case involving joint tortfeasors. In cases of this type, the plaintiff may collect the judgment against any one of the tortfeasors found to be liable. See 42 Pa.C.S.A. § 7102(b) and Rivera I, 510 Pa. at 23-25, 507 A.2d at 12-13. After the first trial in this case, the Church failed to raise the finding of liability either in its post-trial motions, or in its direct appeal to the appellate courts. As a result, all issues pertaining to the liability of the Church were deemed waived, and the judgment against the Church became binding and enforceable. Consequently, the Church became liable for the entire amount of the judgment. Because the judgment for the full amount of the damages remained intact, there was no need for Rivera to fully participate in the second trial as if the judgment had been eradicated. See Rivera, id. Therefore, the idea that Rivera’s cause of action would be eliminated if she were not allowed to relitigate her case is unfounded.

In Rivera I, the Supreme Court awarded a new trial to the Seminary “solely for the purpose of determining the Seminary’s proportionate responsibility to the Church, if any.” Id., 510 Pa. at 25, 507 A.2d at 13 (emphasis added). In addition, the Supreme Court directed that Rivera should be permitted to participate in the new trial, if she so desired. The permission to participate, however, was not for the purpose of allowing Rivera to relitigate her entire case against the Seminary; rather, the only purpose of the new trial was to determine whether the Seminary’s negligence, if any, caused the death of Rivera’s son, and the burden of proof on this issue was to be allocated to the Church, not Rivera. Id., 510 Pa. at 26, 507 A.2d at 14.

Although the Supreme Court expressly stated that Rivera was permitted to “participate” in the new trial, the extent of Rivera’s participation was not further defined, limited or explained by the Supreme Court. The majority concludes that Rivera’s excessive participation was immaterial and of no consequence, since the same evidence would undoubtedly have been presented by the Church. I disagree with this statement. This case involved the drowning of a teenage boy. Certainly, in comparing his mother to the Church, she appears as a plaintiff with whom the jury is likely to sympathize. Thus, by having Rivera litigate the case instead of the Church, the jury might have been more inclined to find against the Seminary. For this reason, I am unable to conclude that Rivera’s participation was immaterial and of no consequence.

In addition, I believe that if the Supreme Court had intended that Rivera should re-try her case in its entirety against the Seminary, then it could easily have directed that the second trial would be held between Rivera and the Seminary. In the alternative, the Supreme Court could have remanded for a new trial as to all parties. Because it chose neither of these options, I would infer that the Supreme Court envisioned a more limited scope of participation for Rivera. Because the new trial was to be specifically between the Church and the Seminary instead of Rivera and the Seminary, I would find that the trial court erred in failing to comply with the remand instructions of the Supreme Court. Accordingly, I would reverse and remand for a new trial to be held in accordance with those instructions.

The next point on which I disagree with the majority concerns the highly prejudicial remarks made by Rivera’s counsel. Prior to trial, counsel for all the parties agreed upon what information should be provided to or withheld from the jury. See N.T., 4/11/88, Volume I at p. 11-13 and 56-62. Specifically, it was determined that the jury would not be instructed of the result of the first trial. However, in the rebuttal portion of his closing, Rivera’s counsel, Mr. Stopford, discussed the results of the first trial and the fact that the jury found the Seminary to be liable. He stated:

Mr. Penders [counsel for the Seminary] also says that his expert agrees with what the first jury found, that Father Flynn was solely responsible. That’s not what the first jury found. The first jury found they were both responsible. [Emphasis added.]

N.T., 4/18/88, Volume VI at p. 88. These comments, however, were made in response to the closing remarks of Mr. Penders, who stated:

He [Mr. Harris, the expert witness for the Seminary] ... would have been the perfect expert for Mr. Stopford to use ... because he believes what the first jury in this case concluded, that Fred Rivera drowned because Father Flynn did not perform his job as the lifeguard in a safe and competent manner.

N.T., 4/18/88, Volume VI at p. 85.

In his opening charge to the jury, the trial court informed the jury that the Church had been found liable. See N.T., 4/12/88, Volume II at p. 16. Mr. Penders’ closing remarks did nothing more than reiterate this fact; they did not imply that the jury did not find the Seminary to be free from liability. Mr. Stopford violated the parties’ agreement, however, by specifically informing the jury that the jury in the first trial had found the Seminary liable. This statement, although made in response to Mr. Penders’ comments, clearly exceeded the scope of fair argument, and as recognized by the majority, was prejudicial and indefensible. See majority opinion ante at p. 1345. Despite this conclusion, the majority believes that the trial court’s instruction was sufficient to cure any prejudice to the Seminary.

In the charge to the jury, the trial judge admonished the jury that these comments should be ignored. See N.T., 4/18/88, Volume VI at pp. 99-101. Due to the highly prejudicial nature of these remarks, I believe that they exerted some influence upon the jury, even though the trial court admonished the jury to ignore this comment. The jury in this case found the Seminary to be 70% negligent, which is almost twice the amount of liability which the first jury imposed. Thus, it is certainly possible that these remarks, despite the trial court’s charge, influenced the jury’s verdict to some degree. Therefore, I would find that a new trial should be awarded on this basis as well.

      . The trial court charged the jury as follows:
      In determining whether the Seminary was negligent in this case, you may exercise some or all of the following questions ...

        1. Did the Seminary act in a reasonably prudent manner in failing to adequately bar the access of Fred Rivera and the other boys to the pool ... because it did not have a competent lifeguard in its own employ available to supervise those boys in the pool at that time?
      2. In fact did the Seminary adequately bar this access?
      3. In the absence of a competent lifeguard of its own present at the pool, if that's what you find happened, present at the pool to supervise these boys, did the seminary satisfy its duty to act in a reasonably prudent manner by relying on Father Flynn as a person competent to supervise the boys at the pool?
      4. Was Father Flynn a competent lifeguard? ... If Father Flynn was a competent lifeguard, did the Seminary act in a reasonably prudent manner in failing to anticipate that he might have a lapse in his vigilance, and therefore, should the Seminary, in order to have acted in a reasonably prudent manner, have required that Father Flynn have additional competent assistance? In the absence of such assistance, should the Seminary have closed the pool to the boys?
      4. In order to find the Seminary negligent ... it is only necessary for you to determine that someone at St. Charles Seminary failed to act as a reasonably prudent person would have acted under the circumstances.
      8. Reasonable care requires that a pool owner such as the St. Charles Seminary take all precautions and actions that a reasonably prudent pool owner would have taken under the same or similar circumstances to guard against the danger of drowning in its pool. If you find that the St. Charles Seminary did not exercise such reasonable care in this regard, then you may find that it was negligent.
      9. In determining whether the seminary was negligent, you should consider the extent of possible harm that users of the pool could suffer. A defendant’s conduct must be measured against the relative severity of a potential injury. In other words, if you find that there was a risk of a very serious injury or death to those using the pool, you may find that reasonable care required greater precautions than if there was only the risk of a minor injury.
      If you find that the seminary failed to provide a lifeguard at the time of the accident in question ... you may find that the seminary was negligent on that basis. That’s for you to decide.
      No. 5. The seminary did have the legal obligation to exercise reasonable care in the operation and maintenance of its swimming pool.

      . The value, significance and influence of dissenting opinions in the development of the law are well known to the bench, the practicing bar, and the legislature. Musmanno v. Eldredge, 382 Pa. 167, 171, 114 A.2d 511, 512-513 (1955).
      The dissenting opinion in Chisholm v. Georgia, 2 Dali. 419, [2 U.S. 419,] 1 L.Ed. 440 [ (1793) ], was a contributing factor in the passage of the Eleventh Amendment to the Constitution of the United States; the dissenting opinions in Scott v. Sandford, 19 How. 393, [60 U.S. 393,] 15 L.Ed. 691 [ (1857) ], produced the Fourteenth Amendment; the dissenting opinion in Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 15 S.Ct. 673, 39 L.Ed. 759 [ (1895) ], became the law of the land by the Sixteenth Amendment----

        Id., 382 Pa. at 171-172 n. 2, 114 A.2d at 512-513 n. 2.

      . The real problem in this case is not that the cause of action would be eliminated; rather, the difficulty lies in collecting the judgment from the Church. It appears from the record that the limits of the Church’s liability policy were substantially less than the amount of the judgment. Thus, if it had been determined in the second trial that the Seminary had not been negligent, the Church would have been liable for the entire amount of the judgment. Under this scenario, it is probable that Rivera would have been unable to collect the remainder of the judgment once the policy limits had been exhausted. On the other hand, if the Seminary is found to be liable, then it is evident that Rivera’s chances of collecting a greater portion of the judgment are substantially increased.
      Problems of collecting a judgment from a tortfeasor, however, are irrelevant to the question of whether a valid, enforceable judgment is in existence. Rivera successfully obtained a judgment against one of the tortfeasors who was found to have caused the death of her son. Once this event occurred, she was precluded from obtaining a judgment against any of the other tortfeasors for the same cause of action. Consequently, the only question to be resolved in the new trial was whether the Seminary was negligent in causing the death of Rivera’s son, and if so, then in what proportion. Although Rivera’s participation in the Church’s action against the Seminary would certainly be prudent and might enable her to protect and possibly increase her chance of ultimately recovering a larger portion of the judgment, her presence at the second trial was completely unnecessary, since her right to collect the judgment had been previously established.

      . The reason for Rivera's limited role arises out of the fact that Rivera and the Church would stand in a similar position in the second trial, as both parties have an interest in having the Seminary found liable. Due to the identity of interests between Rivera and the Church, there would be no need for each party to present its case since any evidence presented by Rivera would in all likelihood be cumulative to that presented by the Church. Further, the presence and limited participation by Rivera’s counsel would protect Rivera’s interest by decreasing the chance that the Church would not vigorously litigate its case or otherwise appear to be acting in collusion with the Seminary. Therefore, I would interpret the Supreme Court's instructions as limiting Rivera's participation to the cross-examination of witnesses, if necessary, and the presentation of evidence in the Church’s case, if it is not merely cumulative to the evidence presented by the Church. Finally, I would not permit opening or closing statements to be made to the jury, since Rivera’s case was not subject to relitigation. A procedure of this type would enable Rivera to protect her interest, and would be in compliance with the remand instructions of the Supreme Court.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    580 A.2d 1351
    Anna Elisabeth Uta Roeber SCHUBERT a/k/a Uta Schubert, Appellant, v. John Denney SCHUBERT.
    Superior Court of Pennsylvania.
    Argued March 6, 1990.
    Filed Sept. 27, 1990.
    Reargument Denied Nov. 2, 1990.

      David E. Auerbach, Medi, for appellant.
    Alan B. Portnoff, Paoli, for appellee (Submitted).
    Before MCEWEN, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an amended order of the Delaware County Court of Common Pleas dated July 19, 1989. We reverse in part, affirm in part and remand for disposition consistent with this opinion.

On July 6, 1988, the lower court entered an order and opinion determining the equitable distribution of the marital property of appellant Anna Elisabeth Uta Schubert and appellee John Denney Schubert. In an opinion dated July 24, 1989, the lower court dismissed appellant’s exceptions to this order. Appellant files this timely appeal.

The pertinent facts are as follows. Appellant and appellee were married on March 29, 1963 and separated on February 23, 1984. Two children were born to the couple during the marriage. Unfortunately, the parties’ daughter Audrey died as a result of an automobile accident that occurred in July of 1984.

Appellant raises four (4) issues for our consideration. First, appellant states that the lower court erroneously failed to consider certain marital property with regard to its equitable distribution decision. Second, appellant argues that the lower court failed to properly follow the divorce code in determining the equitable distribution of the marital assets. Third, appellant contends that the lower court erred in failing to award her alimony. Finally, appellant argues that the lower court erred in failing to require husband to pay her counsel fees and expenses.

The scope of appellate review of orders concerning equitable distribution, alimony, counsel fees and costs is limited to finding whether there is an abuse of discretion or error of law on the part of the lower court; absent an abuse of discretion by the trial court, the award will not be disturbed. Ganong v. Ganong, 355 Pa.Super. 483, 513 A.2d 1024 (1986). Guided by this stringent standard of review, we shall examine appellant’s contentions seriatim.

First, appellant argues that the lower court failed to consider and include certain marital property with regard to its equitable distribution decision. Appellant also challenges the valuation of other assets considered by the court. The relevant assets are as follows:

Metropolitan Life Insurance Policy;
Bankers Life and Casualty Policy;
Travelers Insurance Policy;
Honeywell Stock Savings Plan;
Retirement Savings Plan;
Honeywell Accrued Vacation;
Assets concealed by appellee.

Our review of the record reveals that the parties received twenty-one thousand five hundred dollars ($21,500.00) in proceeds from the aforementioned Metropolitan Life Insurance Policy. This policy was taken on the life of the parties’ deceased daughter. While the parties agree that the policy constituted marital property, they differ concerning the amount of money that should be deducted for funeral expenses.

Appellant contends that twenty thousand dollars ($20,000.00) of this amount should be considered marital property. Citing the Pennsylvania No-Fault Motor Vehicle Insurance Act, appellant argues that only one thousand five hundred dollars ($1,500.00) may be deducted from the insurance proceeds for funeral expenses. The lower court, however, rejected this argument and deducted the actual costs of the funeral, five thousand two hundred dollars and ninety-six cents ($5,200.96). Reviewing the chronology of this case, we find no merit to appellant’s contention.

Our review reveals that the parties indeed expended a total amount of five thousand two hundred dollars and ninety-six cents ($5,200.96) for funeral expenses prior to the commencement of their divorce proceedings. As noted by the lower court, these expenses were incurred by consensus of the parties. Nevertheless, appellant argues that the lower court erroneously deducted five thousand two hundred dollars and ninety-six cents ($5,200.96) for funeral expenses from the Metropolitan policy since only one thousand five hundred dollars ($1,500.00) could be deducted in accordance with the No-Fault Act. Under the definition section of the No-Fault Act, we find as follows:

“§ 1009.103 Definitions
“As used in this act:
‘Allowable expense ’ means reasonable charges incurred for, or the reasonable value of (where no charges are incurred) reasonably needed and used products, services, and accommodations for:
“(D) expenses directly related to the funeral, burial, cremation, or other form of disposition of the remains of a deceased victim, not to exceed one thousand five hundred dollars ($1,500) ...

The aforementioned statute is not binding upon this Court with regard to an equitable distribution determination. Instead, this No-Fault limitation concerns the total amount an insured may receive from their insurance company. While the parties may have only received one thousand five hundred dollars ($1,500.00) for funeral expenses from the Metropolitan policy in accordance with the No-Fault act, the grieving parents were not bound to limit their spending in memory of the deceased to this amount. Therefore, we find that the sum of sixteen thousand two hundred ninety-nine dollars and four cents ($16,299.04) constitutes the proper valuation of the Metropolitan policy as a marital asset since the parties spent five thousand two hundred dollars and ninety-six cents ($5,200.96) on funeral expenses pursuant an agreement made prior to the equitable distribution process.

Appellant next argues that the lower court erroneously failed to find the proceeds from the Banker’s and Traveler’s policies marital assets subject to equitable distribution. These policies, like the aforementioned Metropolitan Life policy, were taken on the life of the deceased daughter. Each named appellee as the sole beneficiary. Upon the insured’s death, the benefits of these policies accrued to appellee. Appellant contends that these proceeds constituted mutually owned property since the policies were acquired during the marriage and purchased from marital funds. The lower court rejected this contention. While the court found that the cash surrender value of the policies constituted marital assets, it declared that the policies’ proceeds were not marital property since it accrued to appellee subsequent to the parties’ separation. We disagree.

In rendering its decision concerning these insurance policies, the lower court relied heavily upon our decision in Lindsey v. Lindsey, 342 Pa.Super. 72, 492 A.2d 396 (1985). In Lindsey, we stated that only the cash surrender value of the pertinent life insurance policies could be considered marital property. Id., 342 Pa.Superior Ct. at 77, 492 A.2d at 398. Close scrutiny of the Lindsey case, however, reveals the merit of appellant’s contention concerning this issue.

In Lindsey, husband initially purchased two life policies on himself and named wife sole beneficiary. Id., 342 Pa.Superior Ct. at 74, 492 A.2d at 397. Subsequently, husband and wife separated and wife secured an injunction barring husband from disposing of any marital property. Id. Husband then changed the beneficiary designations on the two policies from his wife to another woman. Id. Prior to the final divorce decree, husband died. Id. The lower court, however, held that the changes in beneficiary designations were in violation of the preliminary injunctions and ordered that wife be named beneficiary. Id., 342 Pa.Superior Ct. at 75, 492 A.2d at 397. On appeal, we reversed this decision.

We explained in Lindsey that being named sole beneficiary vested nothing in wife but a mere expectancy during the lifetime of the insured. Id., 342 Pa.Superior Ct. at 76-77, 492 A.2d at 398. When husband changed beneficiary designations, there was no violation of the preliminary injunction since he did not convey any marital assets to a third party. Id., 342 Pa.Superior Ct. at 79, 492 A.2d at 399. Thus, we concluded in Lindsey that the life insurance policy could only be valuated at its cash value. Id., 342 Pa.Superi- or Ct. at 78-79, 492 A.2d at 399. Such is not the case here.

While Section 401(f) of our Divorce Code generally provides that all property “acquired by either party during the marriage is presumed to be marital property,” Section 401(e)(4) excludes “[pjroperty acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets (emphasis added).” This section of the divorce code is applicable here, unlike in Lindsey, because appellee/husband received the proceeds of the policy subsequent to the parties’ separation. In Lindsey, as noted supra, the insurance proceeds were paid to a third party. Furthermore, we find that these proceeds constitute marital property subject to equitable distribution since they were acquired in exchange for marital assets.

In the instant case, appellee received “salary continuation” benefits pursuant to his voluntary early retirement after thirty-seven (37) years of employment with Honeywell Corporation. This “salary continuation” plan consisted of several inducements and benefits designed to entice employees to choose early retirement. During the course of the parties’ marriage, the Banker’s and Traveler’s insurance policies were provided by appellee’s employer and were paid in part from deductions from appellee’s salary. Pursuant to the early retirement plan, paycheck deductions were continued to pay the premiums of the insurance policies.

Our review of the record reveals that the parties were married for twenty-one (21) years. During this time period, appellee was employed with Honeywell and purchased the relevant life policies. One month after the parties separated, appellee retired. Subsequently, the insurance policies premiums were paid pursuant to the salary continuation plan. Five (5) months after the parties separated, the insured died.

While appellant was not a named beneficiary to the policies, we find that she was entitled to a share of the proceeds. Specifically, we note that the proceeds accrued to appellee only because the salary continuation provided for the continued payment of the pertinent insurance premiums. We find that these salary continuation benefits constituted marital assets since they were based upon appellee’s thirty-seven (37) years of service to Honeywell Corporation. Since wife contributed to the family’s household for twenty-one (21) years of this time period, we find that she was entitled to a share of appellant’s salary continuation. Most importantly, we find that appellant is entitled to a share of the proceeds of the aforementioned insurance policies since we find that the policies were not only purchased but maintained with marital funds. Thus, we find that the lower court abused its discretion with regard to the Banker’s and Traveler’s insurance policies proceeds and reverse with regard to this issue.

Turning to appellant’s next allegation of lower court error, we fail to find merit to appellant’s contention concerning appellee’s alleged hidden assets. In contrast, the record reveals that the lower court provided appellant with ample opportunity to unveil any assets concealed by appellee. Since we find no merit to this contention, we affirm with regard to this issue on the basis of the lower court’s July 6, 1988 opinion.

In inter-related arguments, appellant states that the lower court erred in appraising the marital share of the Honeywell Stock Savings Plan and the Retirement Savings Plan. Our review reveals that these plans were also provided pursuant to appellee’s early retirement. Appellant also contends that the lower court erroneously omitted appellee’s accrued vacation pay from the equitable distribution. With regard to the stock savings plan, appellant states that the lower court erroneously found fifty-seven (57) shares of the stocks with a value of ($3,188.48) subject to equitable distribution. Appellant argues that one hundred fifty-seven (157) shares constitute the marital assets of the parties.

Appellant states that the lower court also erred in valuating the savings plan at ten thousand eight hundred forty-five dollars and four cents ($10,845.04). This plan, appellant concludes, should have been valued at fifteen thousand four hundred ninety-two dollars and ninety-two cents ($15,-492.92).

Our careful review of the record reveals that the lower court failed to address these contentions although the issues were raised in appellant’s exceptions to the equitable distribution order. In light of these omissions, we now remand to the lower court so that it may articulate its reasons for rejecting these arguments in accordance with Pa.R.A.P., Rule 1925(a).

Second, appellant contends that the lower court erred in failing to properly follow the dictates of our Commonwealth’s divorce code in determining the equitable distribution of the relevant marital assets. We disagree. Reviewing the record, we find that the lower court properly adhered to the mandates set forth in section 401(d) of the Divorce Code in ascertaining the equitable distribution of the parties’ marital assets. We reject this argument, therefore, on the basis of the lower court opinions dated July 6, 1988 and July 24, 1989. Additionally, we do not agree with appellant’s third contention concerning alimony. We also reject this argument of the basis of the lower court’s opinions.

Finally, appellant argues that the lower court erred in failing to require husband to pay her counsel fees and expenses. We disagree. As noted by the lower court, the purpose of an award of counsel fees is to insure that a financially dependant spouse will be able to maintain or defend against an action for divorce as well as to effectuate economic justice between the parties. Chaney v. Chaney, 343 Pa.Super. 77, 493 A.2d 1382 (1985). We find no abuse of discretion with regard to the lower court’s determination that both parties had ample assets with which to pay their attorney’s fees. Since we find the logic proffered by the lower court convincing concerning this issue, we affirm on the basis of the lower court opinion dated July 6, 1988. We add, however, that appellant should note that counsel fees are not “automatic” and are “only appropriate when necessary to put the parties on a par in defending their rights or in allowing a dependent spouse to maintain or defend an action for divorce.” Johnson v. Johnson, 365 Pa.Super. 409, 415, 529 A.2d 1123, 1126 (1987). Therefore, we reject appellant’s contention concerning counsel fees.

Reversed in part, affirmed in part and remanded to the Court of Common Pleas of Delaware County, Civil Division for preparation and filing of an opinion not inconsistent with this opinion. The Court of Common Pleas is directed to act within forty-five (45) days of the filing date of this opinion. Panel jurisdiction is retained.

McEWEN, J., dissents.

      . Subsequently, the lower court entered a second amended order on October 20, 1988. According to the lower court, this order was provided to correct typographical errors contained in the original order dated July 6, 1988 as well as the first amended order of July 19, 1988. Our review of the orders reveals that the second amended order changed the number of Honeywell stock shares that were to be considered pursuant to the equitable distribution. In the original order, the court listed one hundred and fifty seven (157) shares as marital assets: in contrast, fifty seven (57) shares were listed as marital assets in the second order. Additionally, the second amended order modified its categorization of a fund of ten thousand eight hundred forty-five dollars and four cents ($10,845.04) which had previously been listed as a pension plan. In its order of October 20, 1988, the court listed these funds as a Honeywell savings plan.

      . In her appellate brief, appellant implies that she would not contest the deduction of the actual funeral costs if we were to reverse the lower court and find that the Traveler’s and Banker’s insurance policies' proceeds constitute marital property. Although we find for appellant with regard to the Traveler’s and Banker’s policies’ proceeds, we nevertheless include this discussion to clarify our position on this issue.

      . 40 P.S. §§ 1009.101 etseq., repealed, P.L. 26 No. 11, § 8(a), 2/12/84.

      . In Lindsey, however, wife did not receive any portion of the cash surrender value of the policies due to husband’s death and abatement of the divorce action and its ancillary claims. Id., 342 Pa.Superior Ct. at 79, 492 A.2d at 399.

      . We note, however, the lower court’s inconsistent evaluation of appellant’s prospects for future employment. In its opinion of July 6, 1988, the lower court characterizes appellant’s future prospects for well paying employment as "slim, at best”. In contrast, the lower court states in its July 24, 1989 opinion that appellant could find “suitable employment’’ in the future “since she has a talent that does not circumscribe her employable age.” Nevertheless, we find no abuse of discretion with regard to the lower court’s equitable distribution of the parties assets in light of its award and consideration of the mandates of section 401(d) of the Divorce Code.


author: MONTEMURO, Judge: OLSZEWSKI, Judge,

text:
    580 A.2d 1356
    William SCULLION, Jr., Appellee, v. EMECO INDUSTRIES, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1990.
    Filed Sept. 26, 1990.

      Alfred J. Johnston, Philadelphia, for appellant.
    Albert G. Blakey, York, for appellee.
    Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

Appellee, William Scullion, brought this action for breach of employment contract against appellant, EMECO Industries, Inc. Following a trial, the jury returned a verdict in favor of appellee and awarded damages in the amount of $40,000.00. The trial court denied appellant’s post-trial motions, and appellant brought this timely appeal. On appeal, appellant claims that the trial court erred (1) in refusing to enter judgment n.o.v. on the basis that appellee produced insufficient evidence of additional consideration to rebut the presumption of at-will employment; (2) in admitting irrelevant, immaterial and prejudicial evidence regarding the drinking problem of an employee of appellant; and (3) in admitting speculative and conjectural evidence on the issue of damages. We find appellant’s arguments to be meritless and affirm the order of the trial court.

The trial court summarized the relevant facts of the case as follows:

In March, 1984, Plaintiff Scullion, then a California resident, was interviewed by Defendant’s President, Geiselman, and was told that the job at Emeco was the last job he would ever have. Scullion’s understanding was that he would replace the existing Vice-President of Sales and Marketing, Eugene Roscoe, in the same position, and that he would also receive Roscoe’s membership in the Hanover Count[r]y Club when Roscoe’s contract with Emeco either expired in December 1984, or was bought out by Emeco. Scullion also was told about the generous retirement benefits included as part of his compensation package. The importance of becoming a part of the community was pointed out to Scullion, and he was shown areas in Hanover that would be appropriate for buying or building a home. Scullion accepted the job, turned down an incentive to stay offer from his then current employer, and commenced employment at Emeco on April 2, 1984. There was no written contract.
Scullion sold his house in California, moved his family to Hanover, and purchased a $17,000 building lot in Hanover. On July 17, 1984, Plaintiff was discharged by Defendant and provided six weeks of severance pay. Plaintiff sued for wrongful discharge.
At Trial, Plaintiff offered evidence of Roscoe’s alleged drinking problem to support his claim that he had been hired to replace Roscoe, and also to support his claim that he had been discharged without cause. Plaintiff also offered testimony as to the damages sustained. After Plaintiff presented its evidence, Defendant moved for a compulsory non-suit on the grounds that Plaintiff failed to rebut the presumption of at-will employment. The Motion was denied.
At the end of Trial, the Jury found that Plaintiff was not an at-will employee; that an implied contract of employment for a reasonable time existed; that this reasonable time had not expired before Plaintiff’s discharge; that Plaintiff was discharged without cause; and that damages in the amount of $40,000 should be awarded.

Trial Court Opinion, November 1, 1989, at 2-3.

Appellant first claims that the trial court erred in refusing to grant its motion for judgment n.o.v. because appellee presented insufficient evidence as a matter of law to rebut the presumption of at-will employment. We disagree.

A judgment n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict is improper____ In ruling upon a defendant’s motion for judgment n.o.v., the trial court is required to consider the evidence, as well as all reasonable inferences which may be drawn therefrom, in the light most favorable to the plaintiff who won the verdict____ In determining whether the evidence is sufficient to support the verdict, a reviewing court must consider all the evidence received, whether the trial court’s evidentiary rulings thereon were correct or incorrect. ...

Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989) (citations omitted).

In Pennsylvania, it is presumed that employment is at-will. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). During trial, the appellee in the case sub judice presented evidence relevant to his claim that his employment contract with the appellant, while oral, was not at-will. If the trier of fact finds that a party did provide additional consideration apart from the detriments “commensurate with those incurred by all manner of salaried professionals,” then it may be held that the party has rebutted the at-will presumption. Marsh v. Boyle, 366 Pa.Super. 1, 7, 530 A.2d 491, 494 (1987) (citation omitted). It is a question of fact whether, in a given case, an employee has given additional consideration sufficient to rebut the at-will presumption. The question of the intent of contracting parties is generally a jury question. DiBonaventura v. Consolidated Rail Corp., 372 Pa.Super. 420, 539 A.2d 865 (1988). “However, the presumption created by the additional consideration rule could itself be rebutted by evidence that the parties specifically contracted for employment at-will.” Darlington v. General Electric, 350 Pa.Super. 183, 200, 504 A.2d 306, 314 (1986).

We do not find the facts of the present case so clear that reasonable minds would not differ on its outcome. In Marsh v. Boyle, supra, the appellant claimed that he was assured a position as publisher of the Clarion News for “at least two years.” In reversing the entry of summary judgment and remanding for further proceedings, this Court opined:

In the case before us, the employer’s assurances that Appellant would be working as publisher “for at least two years” was not sufficiently definite to take the agreement out of the at-will presumption. Appellant, nevertheless, relies on the surrounding circumstances, particularly his resignation from the position with the Lewistown paper, his move to Clarion and his act of placing his house on the market as establishing sufficient consideration to rebut the at-will presumption. Appellant seeks to prove that the parties’ discussion as to the terms of his employment, when examined in light of these circumstances, created a contract which could not be terminated at-will but, rather, would continue for a reasonable length of time, or at least two years.

Id. 366 Pa.Super. at 7, 530 A.2d at 494. Cf. Betts v. Stroehmann Bros., 355 Pa.Super. 195, 512 A.2d 1280 (1986).

Following our review of the record in the instant case, we agree with the trial court that sufficient evidence was presented by the appellee to support the jury’s finding that an implied contract for a reasonable time existed between these parties which had not expired at the time appellee was discharged from his employment. “When the exact period for which the parties intended to contract is unable to be determined, an agreement for a ‘reasonable time’ will be inferred.” Marsh v. Boyle, 366 Pa.Super. 1, 7, 530 A.2d 491, 494 (1987) (citation omitted). We note, as did the trial court, that appellee, at the age of fifty-one, accepted a position as Vice-President of Sales and Marketing for appellant Emeco, a position which reflected his years of experience in the area of sales. During the interview process, appellee was told by appellant’s president, Geiselman, that this was the last job he would ever have. R.R. at 37a. Generous retirement benefits were included as part of appellee’s compensation package. After refusing an increased salary from his California employer, the appellee sold his home in California, and made a coast-to-coast move. Id. at 87a. At the urging of Geiselman, appellee purchased a building lot in Hanover across the street from Geiselman’s son. Id. at 51a. Appellee testified that Geiselman wanted him to build a home in Hanover so that the appellee could be part of the community. Id. at 48a. A country club membership for the appellee was also discussed. While one or a few of the surrounding circumstances of appellee’s employment with the appellant may not have been sufficient, as a matter of law, to rebut the at-will presumption, all of the circumstances, when viewed as a whole, adequately support the jury’s verdict.

Appellant relies upon Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986), a decision which we find to be readily distinguishable from the case presently before this Court. In Veno, the employee was discharged eight years into his employment. He claimed that his resignation from a different job, his family’s move from Newark to Pennsylvania, and his refusal of other job opportunities throughout the years took him out of an at-will employment situation. As we specifically noted in Veno, even if these original hardships undertaken by the employee had taken him out of an at-will employment situation, such a contract’s reasonable duration would have “surely passed based on the consideration given” by the time the employee reached his eighth year in the position. Id., 357 Pa.Superior Ct. at 103 n. 4, 515 A.2d at 581 n. 4. Here, appellee sold his home in California and moved from California to Hanover, Pennsylvania where he purchased property on which he planned to build a new home. In return for his hardship, appellee received the benefit of three months employment with appellant. We do not agree that the trial court erred in holding that the jury could properly find, on the basis of this evidence, that an implied contract of employment for a reasonable time existed between the parties, and that this reasonable time had not expired before appellee’s discharge.

Appellant next claims that the trial court erred in allowing appellee to testify at trial that appellant’s employee, Eugene Roscoe, had a drinking problem. Appellant maintains that this testimony was irrelevant, immaterial and prejudicial to its case.

Evidence which “tends to establish facts in issue or in some degree advance the inquiry” is relevant. Seals v. Tioga County Grange Mutual Ins. Co., 359 Pa.Super. 606, 614, 519 A.2d 951, 955 (1986). In setting forth its reasons for allowing appellee to testify as to Mr. Roscoe’s suspected drinking problem, the trial court stated:

In the present case, the Court finds that the evidence of Roscoe’s alleged alcohol problem supports Plaintiff’s contention that the company owner was dissatisfied with Roscoe and was therefore interested in replacing him. Plaintiff testified that he was hired to replace Roscoe. However, upon reporting to work in Hanover, Plaintiff testified that he was told to bide his time until an alternative arrangement could be worked out for Roscoe. The evidence that Roscoe was to be replaced, but was still present when Plaintiff was hired and subsequently fired is essential to Plaintiff’s contention that he was never given a chance to perform and was not dismissed for cause.

Trial Court Opinion at 8. In light of this explanation, we conclude that the trial court did not err in finding that the evidence of the drinking problem was relevant to show the reason for appellant’s hiring of appellee.

Further, we disagree with appellant’s characterization of a drinking problem as a “reprehensible, even immoral and sinful condition” which would unduly influence the jury to render a decision on an improper basis. Brief for Appellant at 22. Appellee testified that the owner and president of Emeco informed him that Mr. Roscoe was being let go for several reasons: a “suspected drinking problem;” overspending of company funds on development of a new product which “never got off the ground;” lack of an increase in sales over the previous few years; and a lack of hard work on the part of Mr. Roscoe. R.R. at 32a-33a, R.R. at 35a. In light of the context in which the evidence was introduced and the qualification of the drinking problem as “suspected,” we cannot agree that this evidence has an “ ‘undue tendency to suggest decision on an improper basis.’ ” Seals, supra, 359 Pa.Superior Ct. at 614, 519 A.2d at 955, quoting Whistler Sportswear v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981). The trial court did not err in concluding that the evidence was admissible.

Finally, appellant requests a new trial on the basis that appellee’s evidence establishing the amount of damages was based on speculation and conjecture.

Although the plaintiff bears the burden of proving damages by a preponderance of the evidence, he is required only to provide the jury with a reasonable amount of information so as to enable the jury fairly to estimate damages without engaging in speculation. Damages need not be proved with mathematical certainty.

Bolus v. United Penn Bank, 363 Pa.Super. 247, 268, 525 A.2d 1215, 1226 (1987). Further, “there should be no doubt that recovery will not be precluded simply because there is some uncertainty as to the precise amount of damages incurred. It is well established that mere uncertainty as to the amount of damages will not bar recovery where it is clear that damages were the certain result of the defendant’s conduct.” Pugh v. Holmes, 486 Pa. 272, 297, 405 A.2d 897, 909-10 (1979).

Here, the evidence of the amount of damages was adequate enough to support the jury’s award. In upholding the damage award, the trial court stated:

In the present case, the Court finds that the Plaintiff presented adequate data upon which to rest his assumptions. The Plaintiff testified that the sales figure upon which he based his projected bonus was derived from his understanding of the volume of Defendant’s sales at the time of his employment. The Plaintiff also stated that his calculation of Defendant’s net profits at six (6%) percent of its sales was based on his more than twenty (20) years of experience in the industry. In regard to the country club membership, Plaintiff did assume a figure, however, once again he supported his assumption by stating that the estimate was based on membership rates at a different country club in the York area. Regarding the cost of living adjustment, Plaintiff gave a figure of five (5%) percent which he testified he believed was the inflation rate at the time. Finally, regarding the interest lost on the money Plaintiff used to buy the building lot, the Plaintiff testified that the money had been in a savings account earning ten (10%) percent interest. Although additional testimony regarding these figures would have been helpful in determining their accuracy, the Court does not find that these figures are so deficient as to warrant a new Trial.
The Defendant was free to challenge the accuracy of these figures and it did so in its cross-examination of the Plaintiff. Having done so, the Defendant placed the burden on the Jury to determine the credibility of the testimony presented.

Trial Court Opinion, November 1, 1989, at 10-11. We find that the trial court did not err in refusing to award appellant a new trial on the basis that appellee’s evidence as to damages was inadequate.

For all of the foregoing reasons, we are unable to discern any reversible error on the part of the trial court, and we affirm the judgment of the trial court.

Judgment affirmed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. I would find that the evidence in this case clearly insufficient to come within the additional consideration exception to the presumption of at-will employment. Accordingly, I would reverse and enter judgment in favor of appellant.

In Pennsylvania, “all employment is considered to be at-will absent: (1) sufficient additional consideration; (2) an agreement for a definite duration; (3) an agreement specifying that the employee will be discharged only for just cause; or (4) an applicable recognized public policy exception.” Id. Instantly, the parties agree that (2), (3) and (4) are inapplicable to this case, and that the only argument centers around exception (1). I limit my review accordingly.

As was stated by the panel in Darlington v. General Electric, 350 Pa.Super. 183, 201, 504 A.2d 306, 315 (1986):

[A] court will find “additional consideration” when an employee affords his employer a substantial benefit other than the services which the employee is hired to perform, or when the employee undergoes a substantial hardship other than the services which he is hired to perform. “If the circumstances are such that a termination of the relation by one party will result in great hardship or loss to the other, as they must have known it would when they made the contract, this is a factor of great weight in inducing a holding that the parties agreed upon a specific period.” 3 A. Corbin, Corbin on Contracts § 684 (1960).

Moreover, “[w]hen sufficient additional consideration is present, an employee should not be subject to discharge without just cause for a reasonable time. The length of time during which it would be unreasonable to terminate, without just cause, an employee who has given additional consideration should be commensurate with the hardship the employee has endured or the benefit he has bestowed.” Veno v. Meredith, 357 Pa.Super. 85, 97, 515 A.2d 571, 578 (1986) (citing Darlington).

The trial court relied on five factors in concluding that sufficient evidence of additional consideration was present to submit the question to the jury: (1) in order to accept the employment offer, appellee had to relocate his family from California to Pennsylvania; (2) appellee’s relocation necessitated the sale of his California home and a subsequent purchase of real estate in Pennsylvania; (3) appellee rejected a higher offer from his current employer prior to accepting the position with appellant; (4) appellant indicated to appellee that “this would be the last job he would ever have”; and (5) the terms of employment included a country club membership for the following year. Appellant contends that at least two of these factors, (4) and (5), are not additional consideration for they do not afford a substantial benefit to the employer nor do they impose a substantial hardship on appellee. I would agree with appellant on this point, and with the remainder of its argument.

In Veno v. Meredith, supra, we were asked whether additional consideration was present where the employee left his former job with a newspaper, moved his family from New Jersey to Pennsylvania, and refused other employment opportunities for eight years before being fired by his current employer. In concluding this evidence insufficient to rebut the at-will presumption, we found no sufficiently detrimental hardship suffered by appellant which would relieve him of at-will status. Id., 357 Pa.Superior Ct. at 101, 515 A.2d at 580. We specifically noted that the detriments alleged by the employee, which are almost identical to those alleged herein, were “commensurate with those incurred by all manner of salaried professionals.” Id. As such, we concluded that no evidence was presented which would “suggest that appellant brought to the employment so substantial a benefit, or incurred so detrimental a hardship in taking the job, that he should be accorded treatment any different from the typical at-will employee.” Id.

Instantly, I find a situation on point with the facts of Veno. Here, though the evidence showed that appellee moved his family from California to Pennsylvania, necessitating a sale of his home and subsequent purchase of property, in addition to refusing a wage increase from his old employer, I would hold, as we did in Veno, that this evidence was insufficient to relieve appellee of at-will status. The type of detriment alleged is identical with that of the majority of today’s salaried professionals. Absent any indication by our Supreme Court or Legislature of a need for altering the existing at-will doctrine, I cannot come to a contrary conclusion. Accordingly, I would conclude that the trial court erred in allowing the jury to decide the issues raised in this case, and in further concluding that judgment n.o.v. was unwarranted herein. I would, therefore, deem it appropriate to reverse and enter judgment in favor of appellant.

      . The at-will doctrine was most recently reaffirmed by our Supreme Court in Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990), wherein the Court refused to create an equitable estoppel exception to at-will employment. Such a holding, I believe, is indicative of a decided preference to leave this matter in the hands of the Legislature and not the courts.


author: WIEAND, Judge:

text:
    580 A.2d 1362
    COMMONWEALTH of Pennsylvania v. Stephen Roy CARR, Appellant.
    Superior Court of Pennsylvania.
    Argued March 8, 1990.
    Filed Sept. 24, 1990.

      Michael George, Gettysburg, for appellant.
    Roy A. Keffer, Asst. Dist. Atty., Gettysburg, for Com., appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal from a sentence of life imprisonment imposed for murder of the first degree, the principal issue is whether the trial court erred when it disallowed evidence of the defendant’s psychosexual history to show the likelihood of a killing in the heat of passion aroused by defendant’s observation of two women engaged in homosexual lovemaking.

On May 13, 1988, Claudia Brenner and Rebecca Wight were hiking along the Appalachian Trail in Adams County, when they found an appropriate campsite and stopped for the night. There, they were resting and engaging in lesbian lovemaking when Claudia Brenner was shot in the right arm. After a short pause, additional shots were fired, as a result of which Brenner was struck four additional times in and about her face, neck and head. Rebecca Wight ran for cover behind a tree and was shot in the head and back. Brenner attempted to help Wight, who was unable to walk, but was unable to rouse her. Brenner thereupon went for help, but by the time help arrived, Wight was dead. Suspicion subsequently focused on Stephen Roy Carr. He was arrested and taken into custody on a fugitive warrant from the State of Florida and made statements which incriminated himself in the shooting. He was subsequently tried non-jury before the Honorable Oscar Spicer and found guilty of murder in the first degree.

Carr defended at trial on grounds, inter alia, that he had shot Brenner and Wight in the heat of passion caused by the serious provocation of their nude homosexual lovemaking. In support of this defense and to show the existence of passion, Carr offered to show a history of constant rejection by women, including his mother who may have been involved in a lesbian relationship, sexual abuse while in prison in Florida, inability to hold a job, and retreat to the mountains to avoid further rejection. This was relevant, he contended, to show that he was impassioned when provoked by the “show” put on by the women, including their nakedness, their hugging and kissing and their oral sex. The trial court refused to allow evidence of Carr’s psychosexual history, finding it irrelevant.

The crime of voluntary manslaughter is defined by the Pennsylvania Crimes Code as follows:

A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation____

18 Pa.C.S. § 2503(a). In Commonwealth v. Copeland, 381 Pa.Super. 382, 554 A.2d 54 (1988), the Court said:

The passion which will reduce an unlawful killing to voluntary manslaughter must be caused by legally adequate provocation. Commonwealth v. Flax, 331 Pa. 145, 155, 200 A. 632, 637 (1938). The test for determining the existence of legally adequate provocation is an objective test. Commonwealth v. Miller 473 Pa. 398, 399, 374 A.2d 1273, 1274 (1977); Commonwealth v. Stasko, 471 Pa. 373, 384, 370 A.2d 350, 356 (1977); Commonwealth v. McCusker, 448 Pa. 382, 389, 292 A.2d 286, 289 (1972).

Id. 381 Pa.Super. at 389, 554 A.2d at 57.

In making the objective determination as to what constitutes sufficient provocation reliance may be placed upon the cumulative impact of a series of related events. The ultimate test for adequate provocation remains whether a reasonable man, confronted with this series of events, became impassioned to the extent that his mind was “incapable of cool reflection.”

Commonwealth v. McCusker, 448 Pa. 382, 389-390, 292 A.2d 286, 290 (1972). See also: Commonwealth v. Voytko, 349 Pa.Super. 320, 326, 503 A.2d 20, 23 (1986). “If and when sufficient provocation is found, then the focus of inquiry shifts to the defendant’s response to that provocation[.]” Commonwealth v. Whitfield, 475 Pa. 297, 304, 380 A.2d 362, 366 (1977) (emphasis in original).

If sufficient provocation exists, the fact finder must also determine whether the defendant actually acted in the heat of passion when he committed the homicide and thus whether the provocation led directly to the killing or whether there was sufficient “cooling” period so that a reasonable man would have regained his capacity to reflect.

Commonwealth v. Rivers, 383 Pa.Super. 409, 417, 557 A.2d 5, 9 (1989), citing Commonwealth v. Galloway, 336 Pa.Super. 225, 485 A.2d 776 (1984).

The sight of naked women engaged in lesbian lovemaking is not adequate provocation to reduce an unlawful killing from murder to voluntary manslaughter. It is not an event which is sufficient to cause a reasonable person to become so impassioned as to be incapable of cool reflection. A reasonable person would simply have discontinued his observation and left the scene; he would not kill the lovers. See and compare: State v. Volk, 421 N.W.2d 360 (Minn. App.1988) (defendant’s revulsion from deceased’s homosexual advances not sufficient legal provocation to elicit heat of passion response; person of ordinary self-control under like circumstances would have left scene); State v. Latiolais, 453 So.2d 1266 (La.App.1984) (defendant’s excessive hostility toward and fear of homosexuals does not render victim touching defendant’s leg sufficient legal provocation); State v. Ritchey, 223 Kan. 99, 573 P.2d 973 (1977) (deceased’s vocal and physical homosexual advances, which were nonviolent and nonthreatening, were insufficient provocation). Whatever a person’s views about homosexuality, the law does not condone or excuse the killing of homosexuals any more than it condones the killing of heterosexuals. Similarly, it does not recognize homosexual activity between two persons as legal provocation sufficient to reduce an unlawful killing of one or both of the actors by a third person from murder to voluntary manslaughter.

A trial court must make an initial determination whether sufficient evidence has been presented of serious provocation. See: Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) (where evidence does not support finding of manslaughter, court need not submit issue to jury); Commonwealth v. Dews, 429 Pa. 555, 239 A.2d 382 (1968) (where no evidence of manslaughter, it is proper to refuse to submit manslaughter issue to jury). In the instant case, the judge was both court and jury. Appellant was permitted to show the nature of the activities in which his victims were engaged when he came upon them in the woods. “In a provocation defense, the actions of the victim establishing provocation are relevant. Those are the victim’s actions on the [day] in question because the provocation must lead directly to the killing.” Commonwealth v. Rivers, supra 383 Pa.Super. at 418, 557 A.2d at 9 (emphasis in original). After it had been determined that these activities were inadequate to provoke a heat of passion response, however, appellant’s rejection by women and his mother’s sexual preference were irrelevant. Appellant’s history of misfortunes are not events which are in any way related to the events which he claims provoked him on May 13, 1988. An accused cannot, by recalling some past injury or insult, establish a foundation for a manslaughter verdict. Commonwealth v. Dews, supra 429 Pa. at 559, 239 A.2d at 385. See also: Commonwealth v. Gelfi, 282 Pa. 434, 128 A. 77 (1925); Commonwealth v. Russogulo, 263 Pa. 93, 106 A. 180 (1919). The trial court did not err when it excluded evidence of appellant’s psychosexual history.

Appellant also contends that his waiver of the right to remain silent following arrest on a fugitive warrant was involuntary because he did not know that he was to be questioned about the shooting of Brenner and Wight. Therefore, he argues, the trial court erred when it refused to suppress his incriminatory statements.

In Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), [the Supreme] Court held that a valid waiver of Miranda rights requires that the suspect have an awareness of the general nature of the transaction giving rise to the investigation. The rationale of this holding was that it is only when such knowledge is possessed by a suspect that he can be said to understand the consequences of yielding the right to counsel. “It is a far different thing to forego a lawyer where a traffic offense is involved than to waive counsel where first degree murder is at stake.” Commonwealth v. Collins, 436 Pa. 114, 121, 259 A.2d 160, 163 (1969) (plurality opinion). It is clear from Richman, however, that the suspect need not have knowledge of the “technicalities” of the criminal offense involved; rather, it is necessary only that he be aware of the “transaction” involved. Commonwealth v. Richman, 458 Pa. at 175, 320 A.2d at 355; see also Commonwealth v. Jones, 460 Pa. 223, 331 A.2d 658 (1975); Commonwealth v. McKinney, 453 Pa. 10, 306 A.2d 305 (1973); Commonwealth v. McIntyre, 451 Pa. 42, 301 A.2d 832 (1973); Commonwealth v. Boykin, 450 Pa. 25, 298 A.2d 258 (1972); Commonwealth v. Swint, 450 Pa. 54, 296 A.2d 777 (1972). Neither does the Richman holding establish a “fifth Miranda warning”; that is, there is no prophylactic requirement that the interrogating officers affirmatively provide information to the suspect as to the crime under investigation. Commonwealth v. Jacobs, 445 Pa. 364, 284 A.2d 717 (1971); Commonwealth v. Cooper, 444 Pa. 122, 297 A.2d 108 (1971), both cited in Richman. Where, however, the defendant has not been furnished with such information and a pre-trial challenge concerning the validity of a confession is made on this ground, the Commonwealth must prove by a preponderance of the evidence that the defendant knew of the occasion for the interrogation. Cf. Miranda v. Arizona, supra, 384 U.S. [436] at 475, 86 S.Ct. 1602 [at 1628], 16 L.Ed.2d [694] at 724 [ (1966) ]. This burden may sometimes be satisfied by the establishment of circumstances attending the interrogation, such as the prior statements of the suspect, see Commonwealth v. Cooper, supra, or the fact that interrogation follows hard upon the criminal episode and there is no circumstance lending ambiguity to the direction and purpose of the questioning.

Commonwealth v. Dixon, 475 Pa. 17, 22-23, 379 A.2d 553, 556 (1977) (footnotes omitted). See also: Commonwealth v. Moss, 518 Pa. 337, 347 n. 1, 543 A.2d 514, 519 n. 1 (1988); Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Commonwealth v. Harris, 359 Pa.Super. 581, 519 A.2d 505 (1986); Commonwealth v. Gotto, 306 Pa.Super. 434, 452 A.2d 803 (1982); Commonwealth v. Reaves, 279 Pa.Super. 581, 421 A.2d 351 (1980); Commonwealth v. Hart, 266 Pa.Super. 190, 403 A.2d 608 (1979).

In Commonwealth v. Moss, supra, however, the Supreme Court observed:

We did not hold in Dixon, and we have never held, that a suspect must be informed of each and every crime under investigation. On the contrary, we have consistently held that the Commonwealth, in meeting its burden of proving a waiver was knowing and intelligent, may establish the circumstances attending the interrogation and the lack of ambiguity as to the questioning’s direction and purpose.

Id. 518 Pa. at 347 n. 1, 543 A.2d at 519 n. 1.

In the instant case, the evidence demonstrated that there had been no ambiguity about the direction and purpose of the interrogation. After appellant had formally waived his Miranda rights, he was asked to account for his whereabouts after he left Florida in December, 1986. He described living in the woods and, when asked how he had survived, said that he had fished, trapped and hunted with his .22 caliber rifle. He volunteered that his rifle had been stolen, along with other belongings, on the afternoon of May 13 while he was napping along the trail. When asked if he had seen anyone on the trail, Carr replied that he had seen two girls kissing near his shelter on the morning of May 13. He said that he spoke with one of them, after which he and the girls went their separate ways. When police told Carr that the items which he had described as missing were found at the scene of a murder, he began crying and said “Why does this happen to me.” Police then told appellant that he had been seen at John Golden’s house on the morning of May 14 and that there had been talk of the killing in the woods. Carr denied that there had been talk of the two girls being shot in the woods. He said that he first had learned of the shooting on the six o’clock news later that evening. When police told Carr that one of the girls had lived through the attack and reported seeing him along the trail on the afternoon of May 13, carrying his rifle across his shoulders, Carr again began crying and stated, “If I tell you what really happened, you’ll put me away for a long time. I should have run.” When asked if the shooting was an accident, Carr replied that he thought he was shooting at a deer until he heard screams.

Carr also led police to the location where he had hid his rifle. Upon return to the barracks, Carr was arrested for murder. After arraignment and while being transported to Adams County, Carr told police, that he had known they were looking for him because he had heard that they were showing his picture to people on May 17.

It is patently clear, therefore, that appellant knew he was a suspect in the shooting on May 13, 1988 and that he was being questioned about it. After being arrested, the interrogation was almost exclusively about the shooting and not about his fugitive status in Florida. “To find under these circumstances that [Carr] was unaware of the general nature of the transaction giving rise to his questioning would be tantamount to treating as fact that which is patently hypothesis and fantasy.” Commonwealth v. Travaglia, supra 502 Pa. at 487, 467 A.2d at 294.

Finally, appellant argues that the trial court erred in refusing him an in camera review of the Commonwealth’s file to determine whether the District Attorney had complied with his discovery requests. However, “[a]n in camera inspection of the Commonwealth’s file is not required unless there is reason to believe that evidence favorable to the defense will be revealed.” Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). See also: Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). In the instant case, appellant did not show and, indeed, did not allege that the police file contained exculpatory material. Moreover, he concedes on appeal that “the defense is unable to indicate what items should have further been disclosed.” Since appellant is unaware of any exculpatory information which has been withheld from him and has failed to show that he was prejudiced in any way, we conclude that appellant was not deprived of adequate pretrial discovery.

The judgment of sentence is affirmed.

      . The trial court did not err when it refused to allow pretrial discovery pertaining to other physical or sexual interaction between Brenner and Wight.