author: BECK, Judge:

text:
    586 A.2d 441
    Peter B. BRUDER, v. John L. CARLIN and Jay R. Carlin. Appeal of Jay R. CARLIN. Peter B. BRUDER, Appellant, v. John L. CARLIN and Jay R. Carlin.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1990.
    Filed Feb. 15, 1991.

      Thomas 0. Malcolm, West Chester, for appellant (at 149) and appellee (at 314).

      John M. Sheridan, Media, for appellant (at 314) and appellee (at 149).
    Before BECK, KELLY and POPOVICH, JJ.
   BECK, Judge:

This is an appeal and cross-appeal from a judgment entered on a jury verdict in a personal injury suit. The issue we address is whether the trial court erred in refusing to award plaintiff delay damages on the basis of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.A. App. §§ 501-591 (1981) (the Act), because defendant was in military service for a portion of the time prior to the trial of this action.

We affirm the judgment of the trial court insofar as it awards compensatory damages to plaintiff, but reverse the trial court’s refusal to award delay damages and remand for calculation of those damages under the Act and new rule 238.

The parties were involved in an accident on July 14, 1983 in which plaintiff appellee, Peter B. Bruder, a pedestrian, was struck by an automobile operated by defendant appellant, Jay R. Carlin. Suit was instituted by writ of summons in mid-1985, followed by the filing of a complaint on January 17, 1986. The case was tried to a jury on June 15—17, 1988 and resulted in a substantial verdict for plaintiff. Plaintiff’s petition for delay damages was denied and judgment on the verdict was entered.

On cross-appeal, plaintiff raises an important question regarding delay damages. The trial court denied plaintiff delay damages for the reason that defendant was in the military for a portion of the time between the filing of the complaint and the trial of this action. The court found that the Act precluded the imposition of any penalty on a defendant in the military service. In so concluding, the trial court applied the standard enunciated by the Supreme Court in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1987), and not new rule 238. At the time plaintiff filed his petition for delay damages, new rule 238 was not yet in effect. The new rule did not become effective until three months after the trial court denied delay damages.

The precise chronology of events was as follows. Plaintiff petitioned for delay damages on June 22, 1988, within ten days of the jury’s verdict. Defendant opposed the petition and the court entered its opinion and order denying delay damages on August 17, 1988. Within ten days thereafter, plaintiff filed a post-trial motion contending that the denial of delay damages was in error.

Several months later, on May 1, 1989, plaintiff also sought reconsideration of the denial of delay damages. On December 12, 1989, the trial court denied plaintiff’s motion for reconsideration.

Plaintiff contends that the Act does not preclude delay damages and that new rule 238 applies under this court’s decision in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988), (overruled on other grounds in King v. SEPTA, 383 Pa.Super. 420, 557 A.2d 11 (1989)). This court now must decide two questions: 1) whether the Act precludes delay damages and; 2) if the Act does not preclude delay damages, is the applicable standard Craig or new rule 238. We conclude that the Act does not totally preclude delay damages and that the applicable standard is new rule 238. We first address the applicable standard for delay damages.

New rule 238 became effective on November 7, 1988 and was specifically made applicable to “actions pending on or after the effective date of this rule in which damages for delay have not been determined.” Pa.R.C.P. 238(f). Thus, the new rule became effective after the trial court had decided the delay damages question, but before the court decided plaintiff’s post-trial motions.

We conclude that new rule 238 applies. Since case law has established that new rule 238 applies to cases pending on appeal as of November 7, 1988, where the issue has been preserved, Ceresini, supra, it is clear the new rule applies to active cases in the pre-appeal stage. At the time the new rule was promulgated, the trial court in this case had not yet decided the post-trial motions. Cf. Jistarri v. Fentress, 390 Pa.Super. 209, 213, 568 A.2d 618, 621 (1989). Therefore, the trial court had not yet made its final determination on the issue, and the new rule is applicable.

Having determined that the new rule applies, we next address the effect of appellant’s military service on the award of delay damages. The question of whether appellant’s military service precludes an award of delay damages must be resolved by construction of both the rule and the Act. The new rule and the case law limits the circumstances under which a defendant may reduce or avoid delay damages. We must decide whether military service should be included in the list of limited circumstances.

Under the new rule, defendants are excused from liability for delay damages for the time after they make a written settlement offer where the plaintiff does not recover more than 125 percent of the offer and where the offer is kept open for the time specified in the rule. In addition, no delay damages accrue for the period of delay where the plaintiff has caused the delay of the trial. Schrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 216, 562 A.2d 875, 876 (1989) allocatur granted, 577 A.2d 891 (1990). The rule has also been construed to allow avoidance of delay damages where the defendant has made a settlement offer that exhausts his resources. Id. 386 Pa.Super. at 217, 562 A.2d at 877 (citing Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986)). We now decide whether defendants’ military service excuse their liability for delay damages.

The trial court would have permitted the defendant to avoid delay damages because of his military service. The court found that where, as in this case, the delay is “largely” due to the defendant’s military service, the Act precluded the imposition of delay damages. The court based this conclusion not on any specific provision of the Act, but rather on a general sense that the intent of the Act was to preclude any adverse consequences for one who serves in the military. Trial Court Opinion, at 1—2. We do not wholly agree with the trial court’s interpretation.

We have carefully examined the Act and find that it aims at a suspension of the enforcement of civil liabilities and legal proceedings involving those in military service so as to avoid any prejudice to their rights while they are serving. The Act so states in its initial statement of purpose:

In order to provide for, strengthen, and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable the United States the more successfully to fulfill the requirements of the national defense, provision is made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act ... remains in force.

50 U.S.C. App. § 510.

Although this statement of purpose could be read to require the automatic suspension of legal proceedings against persons in military service, the Act itself does not so provide. Rather, the specifics of the Act are permeated with the overriding requirement that the military service of the defendant be shown to have prejudiced the defendant’s ability to defend himself before special relief can be granted to him under the Act. See Keefe v. Spangenberg, 533 F.Supp. 49 (D.Okla.1981). For example, section 520 of the Act allows for the opening of a default judgment entered against a defendant during his military service, but only if it appears that the defendant was prejudiced in making his defense thereto as a result of his military service. 50 U.S.C.A. App. § 520(4). Similarly, section 523 permits a court to stay the execution of a judgment against a serviceperson unless the court finds that the ability of the person to comply with the judgment is not materially affected by his military service. Id. § 523.

These provisions demonstrate that the Act is not intended to provide automatic relief from the normal progress of civil litigation to defendants in the military, but rather to provide such relief only where warranted under the circumstances. Id.; Rebar v. Rebar, 165 Pa.Super. 341, 67 A.2d 598 (1949) (period of time in military service may be counted in computing time of desertion by husband of wife, thus providing grounds for divorce under prior law, where continuation of desertion was not due to military restraint); Pokrzywnicki v. Kozak, 353 Pa. 5, 44 A.2d 247 (1945) (chancellor should have allowed filing of exceptions nunc pro tunc where excepting party was in military service and, therefore, ten day filing deadline was difficult for him to meet).

Applying this general intent to the issue of the propriety of awarding delay damages under new rule 238 in cases brought against military defendants, we find that the fact that the defendant was in the military should be cause for reduction or avoidance of delay damages only in those cases where it is demonstrated that the military service of a defendant was responsible for the delay of the trial. The delay damages award should be reduced only to account for those periods of delay where the defendant was demonstrably prejudiced in his ability to participate in the proceedings and that inability to participate resulted in a delay of the trial.

This standard adequately takes account of the special protections guaranteed to servicepersons by the Act, while remaining faithful to the requirements of rule 238. It fulfills the purposes of the Act by protecting military personnel from the effect of rule 238 where they are unable to participate in the case because of their service and this causes the delay of the trial. Clearly where the defendant is in the military and this prevents his full involvement in the conduct of his defense, he cannot be held to the requirement of rule 238 regarding the making of an adequate settlement offer. On the other hand, this standard also furthers the purposes of the rule because it does not exempt military personnel from the effect of the rule where they are able to participate and, presumably, to fulfill their responsibility to make the requisite settlement offer which will stop the accumulation of delay damages.

Having so concluded, we find that we must remand this case to the trial court for application of the standard set forth above and for calculation of delay damages under new rule 238. Here the trial court made only a general finding that the delay was “largely” due to the military service of the defendant, noting specifically that defendant’s deposition had to be postponed due to his military service. However, our review of the record reveals that the deposition was delayed for only a few months and the trial court did not consider whether this short delay in the deposition actually delayed the trial of this matter. Furthermore, there is no indication that defendant’s military service impacted on his ability to defend or participate in any other way or caused any other delay of the trial. We note that defendant was represented by counsel throughout these proceedings and defendant appears to have participated in the case through his attorney at several times while he was in the military. We also point out that defendant was discharged from military service in December 1987 and the jury did not return its verdict until mid-June 1988. Thus, a substantial portion of the time period during which delay damages were accruing under new rule 238 was time after defendant’s discharge. All of these factors must be considered by the trial court on remand and only the time during which the delay of the trial of this action was directly caused by defendant’s military service should be excluded from the delay damages calculation.

Judgment affirmed in part and reversed in part. The judgment is affirmed as to the compensatory damages awarded on the verdict of the jury. The judgment is reversed insofar as it did not include any award of delay damages. The case is remanded for a calculation of delay damages in accordance with new rule 238 and this opinion.

      . On direct appeal defendant raised a single issue which we find waived. He asserts that the trial court erred in permitting defense counsel in his closing argument to refer to life expectancy statistics published by the United States Department of Health, Education and Welfare where no such evidence was introduced at trial. The issue is waived because it falls squarely within the mandate of Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981). The issue we address was raised on cross appeal.

      . The trial court also relied in passing on two Pennsylvania statutory provisions, Pa.Cons.Stat.Ann. tit. 18, § 7323 (Purdon 1973) and Pa. Cons.Stat.Ann. tit. 51, § 7309 (Purdon 1982). The court stated that the spirit of these sections also precluded any adverse consequences for a person serving in the military. Neither statute is apposite to the issue presented.

      . The Act is specifically made applicable to all proceedings in the courts of the several states. 50 U.S.C.App. § 512.

      . Of course, on remand the trial court should engage in a thorough application of all of the criteria of new rule 238, including an inquiry into whether any period of delay of trial was caused by plaintiff. If such is shown, this period must also be deducted from the time during which delay damages were accruing. Pa.R.C.P. 238(b)(2).


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    586 A.2d 446
    COMMONWEALTH of Pennsylvania, Appellee, v. Stephen SKIBICKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 29, 1990.
    Filed Feb. 15, 1991.

      David G. Ridge, Erie, for appellant.
    Joseph P. Conti, Asst. Dist. Atty., Erie, for Com.
    Before KELLY, HUDOCK and FORD ELLIOTT, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant, at the conclusion of a jury trial, after he was found guilty of one count of Attempted Homicide, two counts of Aggravated Assault, one count of Reckless Endangerment, one count of Possessing an Instrument of a Crime, and one count of Carrying a Firearm Without a License. Timely filed post-verdict motions were denied by the trial court and Appellant was sentenced to an aggregate term of ten to twenty years incarceration. This direct appeal followed. We affirm.

The facts from which these charges arose may be summarized as follows: Appellant and Timothy Horton (“the victim”) were at the Hickory Cafe in Erie on November 18, 1988. Although they did not arrive together, the two men were seen talking to each other at the bar. At some point Appellant walked away from the victim toward the front door of the bar. Appellant then allegedly turned around, pulled a gun from his pants, and fired one shot at the victim. This first shot struck the victim in the right arm.

The victim then ran to the back of the bar and, in an attempt to reach safety, tried to exit another door of the bar. When the victim then attempted to exit the bar by frantically kicking at an interior kitchen door, Appellant fired three more shots at him: Two of those shots struck the victim, one shot hitting the victim’s leg and one shot hitting him directly below his right eye. After being struck by the third bullet, the victim lay on the floor in an attempt to look as though he were dead. Appellant then turned around and walked out of the front door of the bar.

Appellant’s first claim on appeal is that the trial court erred in refusing to allow the victim to be cross-examined concerning his cocaine use and psychiatric history. Appellant claims that since his version of the facts demonstrate that he acted in self-defense, and that he had had a prior altercation with the victim over a cocaine deal, such issues were relevant for cross-examination. Appellant also claims that the victim’s psychiatric history was an appropriate basis for cross-examination, since the victim’s ability to recall the events of November 18 was at issue. However, this issue was not raised pre-trial or at trial, but was raised for the first time in post-trial motions. It is therefore waived on appeal. Commonwealth v. Schneider, 386 Pa. Super. 202, 562 A.2d 868 (1989), alloc. den’d in 525 Pa. 598, 575 A.2d 564 (1989).

Even if this issue was not waived, we would find it to be without merit. The scope and manner of the cross-examination of witnesses lies within the sound discretion of the trial court and we will not overturn such rulings absent an abuse of discretion or a mistake of law. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984). When the obvious purpose of cross-examination is to develop a defendant’s own defense, the trial court does not abuse its discretion when limits are placed upon its scope. This rule is especially true when the defendant is not ultimately precluded from presenting the relevant testimony at some other point during the course of the trial. Commonwealth v. Lobel, 294 Pa.Super. 550, 440 A.2d 602 (1982).

A review of the record indicates that much time and consideration was given by the trial court as to the relevancy and admissibility of this information. As to the victim’s psychiatric history, the trial court ruled that any information within the victim’s mental health records which was relevant to Appellant’s claim of self-defense could be presented at trial. The trial court, however, found that the records did not contain any such information. Appellant was further allowed to question the victim as to his use of cocaine on or near the date of the shooting and his ability to recall the events which occurred prior to the incident. In order to support his claim of self-defense, Appellant was permitted to introduce the victim’s prior conviction of simple assault. Finally, Appellant was permitted to demonstrate the victim’s prior assaultive behavior, consistent with the dictates of Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), by presenting his own testimony, along with that of another defense witness, regarding a prior altercation between the victim and Appellant during a drug transaction. Thus, the trial court did not abuse its discretion in limiting the scope of cross-examination of the victim to these matters.

Appellant next claims that the trial court erred in not declaring a mistrial when the Commonwealth improperly referred to Appellant’s constitutionally protected right to remain silent. The decision to grant or deny a mistrial is within the sound discretion of the trial court and its decision will not be reversed on appeal absent a manifest abuse of discretion. Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985). Every inappropriate remark by the prosecution does not necessitate a new trial; a new trial will only be granted when the remark prejudices the jury to such a degree that it prevents the jury from weighing and rendering a true verdict. Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984). In making this determination, we must evaluate the remarks in the context in which they occurred. Commonwealth v. Martin, 307 Pa.Super. 118, 452 A.2d 1066 (1982). With these standards in mind, we shall review Appellant's claim.

At trial, Appellant’s version of the events which occurred on November 18, 1988, briefly, are as follows: Appellant claims the victim approached him in the Hickory Cafe and asked if he had any cocaine. After responding in the negative, Appellant then claims that the victim became belligerent, called him a liar and threatened to take cocaine from him. In an attempt to avoid trouble, Appellant then decided to leave the bar and, as he was doing so, he was pushed out of the bar by the victim and was then grabbed by two men. Appellant then saw a pistol in the waistband of the pants of one of these men, grabbed it, and then proceeded to reenter the bar to tell the barmaid to call the police. Before he could get to the area where the barmaid was located, he noticed the victim running toward the back of the bar and attempting to open a door. When the victim could not open the door, Appellant next claimed that the victim turned around and pointed a gun at him. When Appellant saw the victim do this he “just raised the gun and fired.” (N.T. at p. 392).

Appellant claims the following remarks by the Commonwealth, during its summation, were improper:

The defendant tells you that he gets this pistol off two guys, so-called “muggers.” He doesn’t tell you that either one of those guys had been apprehended, but he does tell you he recognized one of them. He recognized one of them from the bar. But he doesn’t tell you that he ever went to the police after that, tried putting together an investigation, tried to work it out, went to the police in any way and said, “Hey, I recognize the guy. I think I can see him again. Let’s work on it. Let’s get this guy who attacked me.” No, he doesn’t do anything like that. (N.T. at p. 466)

Appellant admits that these statements are not an explicit direct reference to his Fifth Amendment right to remain silent. He claims, however, that the Commonwealth’s reference to the police and the potential police investigation violated the rule against comment on a defendant’s right to remain silent. Appellant further argues that when considering the specific nature of the offense and the overall circumstances of the case, the comment was improper, inflammatory and prejudicial. We do not agree.

Appellant’s silence to which the Commonwealth referred occurred prior to his arrest for the November 18 shooting. This Court has recognized that the United States Supreme Court has held that the use of pre-arrest silence to impeach the credibility of a defendant does not violate the Fifth or Fourteenth Amendments to the United States Constitution. Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). As stated above, at trial Appellant claimed that his conduct occurred in self-defense. Defense counsel, during his summation, repeatedly attacked the credibility of the victim and his version of the events leading to the shooting. Defense counsel also attempted to bolster the credibility of Appellant’s version of what occurred by demonstrating the fact that the latter’s testimony was consistent with testimony given by Commonwealth witnesses. Thus, the above comment by the Commonwealth was merely an attack upon the credibility of Appellant’s version of what had transpired prior to the shooting. Since there is no dispute that the silence referred to occurred prior to his arrest, Appellant’s claim is without merit.

Appellant’s final claim is that the trial court erred when it refused to exclude from evidence a letter that Appellant had written, while incarcerated, to his wife and which referred to the criminal case at issue. This letter was received by the Commonwealth after a used car salesman found it in the glove compartment of a car which had been recently traded-in by Appellant’s mother-in-law. Appellant claims that this letter was protected by operation of the confidential communications statute which prevents testimonial disclosure of confidential marital communications over the objection of either spouse. Appellant states that this privilege was neither waived by him or his wife nor extinguished by its discovery by a third party and, therefore, that the letter was inadmissible. We do not agree.

This spousal privilege provides:

Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.

42 Pa.C.S.A. § 5914. A similar factual pattern to the case sub judice was presented in Commonwealth v. Fisher, 221 Pa. 538, 70 A. 865 (1908). In Fisher, the defendant, while incarcerated and awaiting trial, sent two incriminating letters to his wife. These letters were received by the district attorney and admitted into evidence at trial by the Commonwealth and over defense counsel’s objection. The defendant was found guilty of murder in the first degree. Upon a subsequent appeal to the Pennsylvania Supreme Court, defendant argued that the admission of the letters had the effect of the giving of testimony by the wife against the husband, testimony which was prohibited by statute. The court agreed, stating:

It is true the evidence does not show how the district attorney got possession of the letters, but the wife having received them, the reasonable presumption is that she gave them to the prosecuting officer ... For the purposes of the present case it is not necessary to consider or determine whether the letters were such confidential and privileged communications as not to be admissible in evidence at all under any circumstances, but we do hold that they cannot be produced by the wife and offered into evidence as coming from her because this was in effect permitting the wife to testify against her husband and as to confidential communications made by one to the other, which cannot be done under our statute.

Id., 221 Pa. at 544, 70 A. at 867.

Unlike the facts in Fisher, however, in the present case it is known that the district attorney did not receive the letter at issue from Appellant’s wife but from a third party. In this situation we hold that letters or correspondence from one spouse to another may be produced in evidence by a third person where the third person came into possession of the letters under circumstances which did not involve an agency relationship with one spouse or the other and where it is not obtained through the connivance of the spouse to whom the correspondence or letter was addressed. See Commonwealth v. Bishop, 285 Pa. 49, 131 A. 657 (1926). The letter at issue was properly acquired by the Erie Police Department during the course of a criminal investigation. Although the letter had been addressed to Appellant’s wife, it was not obtained by the Commonwealth through connivance with her. Thus, the letter is not protected under § 5914 and Appellant’s claim to the contrary is without merit.

Judgment of sentence is affirmed.

      . The statute then in force, and containing language similar to § 5914, was found at 19 P.S. § 684.


author: CIRILLO, President Judge:

text:
    586 A.2d 450
    COMMONWEALTH of Pennsylvania v. Ricki Lynne BLEIGH, Appellant. COMMONWEALTH of Pennsylvania v. Virginia Lee SHIPE, Appellant. COMMONWEALTH of Pennsylvania v. John Andrews THOMPSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1990.
    Decided Jan. 9, 1991.
    Reargument Denied Feb. 15, 1991.

      Michael E. Brunnabend, Public Defender, Allentown, for Bleigh, Shipe and Thompson, appellants.
    Syndi L. Norris, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Before CIRILLO, President Judge, and JOHNSON and BROSKY, JJ.
   CIRILLO, President Judge:

Ricki Lynne Bleigh, Virginia Lee Shipe, and John Andrews Thompson appeal from judgments of sentence entered on January 11, 1990 in the Cumberland County Court of Common Pleas. We affirm in part and vacate in part.

On October 13, 1988, Detective Michael Strine entered an adult bookstore. Upon entry, Detective Strine observed an array of sexually oriented materials including magazines, movies, and various devices. Additionally, the bookstore had booths available where patrons could view sexually explicit movies or, if they desired, a live female dancer. The booths contained a telephone, a waste can, and a roll of toilet paper. The patrons and the dancers were separated by a pane of glass. As such, they communicated by phone.

Detective Strine entered a booth and placed money into a machine which opened a curtain and exposed Shipe draped in lingerie. Shipe informed Detective Strine that the curtain would remain open for five minutes and that if he placed five dollars through a slot in the wall marked “tips,” she would take off her top, for ten dollars she would remove all her clothing and for twenty dollars she would put on a “show.” Detective Strine placed twenty dollars through the slot and Shipe removed all of her clothing and masturbated.

Later that same evening, Chief Barry Sherman of the Middlesex Township Police went to the same establishment, entered a private booth, placed twenty dollars through the slot and viewed Bleigh masturbate in the nude. Based upon this information, the police obtained a search warrant authorizing the seizure of “any and all sexually oriented materials, including magazines, movies, sexual devices, records of ownership/occupancy/employment, any cash monies or proceeds derived from the sale of said material, and/or sexual activity.” On October 14, 1988, the police executed the search warrant. Upon entering the building, which was open to the public at the time, they immediately arrested Thompson, who was working at the front counter. The police also arrested Shipe who was found in one of the booths, and Bleigh who was in the basement with her husband. A search of Shipe’s pocketbook revealed the marked twenty dollar bill paid to her by one of the officers, a quantity of cocaine and drug paraphernalia. Additionally, a search of Bleigh’s pocketbook following her arrest revealed the marked twenty dollar bill which had been paid to her by Chief Sherman the previous day. The police also observed Thompson’s briefcase, and after searching it, discovered, among other things, a quantity of cocaine.

After a jury trial Bleigh was convicted of prostitution. Shipe was convicted of prostitution, unlawful possession of a controlled substance, and unlawful possession of drug paraphernalia. See 35 P.S. § 780-113. Thompson was convicted of promoting prostitution, unlawful possession of a controlled substance, and unlawful possession of drug paraphernalia. The defendants’ post-verdict motions were denied, sentence was imposed and this timely appeal followed.

The appellants’ advance the following issues for our review:

I. (a) Does self-masturbation or simulated self-masturbation for hire constitute “prostitution” pursuant to 18 Pa.C.S. Section 5902(a); and if so, is Section 5902 constitutionally valid as applied in this case?
(b) Was the evidence sufficient to sustain the Trial Court’s failure to quash and/or dismiss the charge of promoting prostitution ... against Mr. Thompson?
II. Was the search warrant which permitted the search and seizure of various items located in an adult bookstore invalid due to vagueness or overbreadth?
III. (a) Did the police, in executing a search warrant, commit an illegal search by failing to “knock and announce” as required?
(b) Did the police illegally search and seize various personal property from individuals pursuant to a search warrant?

We are called upon once again to clarify what actions constitute the crime of prostitution in this Commonwealth. Specifically, we must determine if self-masturbation for hire with no physical contact between patron and performer constitutes prostitution. The legislature has provided:

(a) Prostitution—a person is guilty .of prostitution; a misdemeanor of the third degree, if he or she:
(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business; ...

18 Pa.C.S. § 5902(a) (emphasis added). Section 5902(f) states that sexual activity includes homosexual and other deviate sexual relations. 18 Pa.C.S. § 5902(f). Clearly, however, the conduct described in section 5902(f) is not the only activity that constitutes prostitution. See Commonwealth v. Cohen, 371 Pa.Super. 558, 538 A.2d 582 (1988); Commonwealth v. Robbins, 358 Pa.Super. 225, 516 A.2d 1266 (1986).

Since the term “sexual activity” is neither specifically nor exhaustively defined in the prostitution statute, we must construe the term according to its common and approved usage. 1 Pa.C.S. § 1903(a); Robbins, 358 Pa.Super. at 230-32, 516 A.2d at 1269. Consequently, it is necessary to trace the history and development of the prostitution statute. See Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127 (1983).

In Commonwealth v. Lavery, 247 Pa. 139, 142, 93 A. 276, [277-78] (1915), our Supreme Court said that prostitution was “not mere fornication or adultery confined to one man, but indiscriminate illicit intercourse for hire with any man seeking it,” but in Commonwealth v. Stingel, 156 Pa.Super. 359, 361, 40 A.2d 140, 141 (1944), this Court held that “indiscriminate cohabitation” was no longer necessary, since “the Legislature ha[d] broadened the compass of the term” by the Act of June 24, 1939, P.L. 872, § 103; 18 Pa.C.S. § 4103. “Prostitution” was there defined as “offering or using of the body for sexual intercourse for hire.” Also, in this Commonwealth’s statutes (e.g., the Act of June 30, 1923, P.L. 982 and the Act of June 24, 1939, P.L. 872), the word “fornication” was dropped from the language of the sections relating to similar offenses. Commonwealth v. Robertson, 178 Pa. Super. 281, 286, 116 A.2d 224, 227 (1955); Commonwealth v. Dougan, 5 D. & C.3d 406, 408 (1978).
In the present Act [18 Pa.C.S. § 5902], the Legislature did not eradicate the commonly understood definition of prostitution but merely clarified it to include “homosexual and other deviate sexual relations.” Id.; see Commonwealth v. Miller, 469 Pa. 24, 28, 364 A.2d 886, 887 (1976).
It cannot be gainsaid that “prostitution” has persisted since Biblical times, and, as such, has acquired a traditional meaning, i.e. “indiscriminate illicit intercourse for hire.”

Potts, 314 Pa.Super. at 270-71, 460 A.2d at 1134 (citations omitted, emphasis added). In Potts, this court concluded that section 5902 was not unconstitutionally vague; rather, the court found it provided an ascertainable standard of conduct directed at a defined evil—the commercial exploitation of sexual gratification. Id., 314 Pa.Superior Ct. at 273-75, 460 A.2d at 1136. Other evils designed to be eradicated by the criminalization of prostitution are the spread of venereal disease; the corruption of law enforcement agencies; the incentive to coerce and exploit women; and criminal organizations living on the proceeds of prostitution. See Commonwealth v. Dodge, 287 Pa.Super. 148, 429 A.2d 1143 (1980).

As the court in Potts stated, prostitution or sexual activity as a business, “has traditionally meant sexual intercourse for hire.” Id. Sexual intercourse, however, is not the only sexual activity proscribed by section 5902.

In Cohen and Robbins, this court held, after examining the statute’s purpose, that the masturbation of a male by a female for money was sexual activity as a business and therefore prostitution. Cohen, 371 Pa.Super. at 560-62, 538 A.2d at 583; Robbins, 358 Pa.Super. at 228-30, 516 A.2d at 1268. In both cases, as in Potts, the court also found that section 5902 was not unconstitutionally vague. Cohen, supra; Robbins, supra.

Here, the Commonwealth argues that because Shipe and Bleigh engaged in self-masturbation for the sexual gratification of their customers, it was sexual activity as a business and therefore prostitution. We disagree.

Having examined the evolution of the term prostitution, and the cases interpreting it, we conclude that self-masturbation for hire without any physical contact between performer and viewer is not the type of conduct intended to come within the purview of section 5902. Further, the definition of sexual activity in section 5902(f) states that it “includes homosexual and other deviate sexual relations.’’ 18 Pa.C.S. § 5902 (emphasis added). This clarification, while not controlling, indicates that sexual activity requires the physical interaction of two or more people. Here, there was no physical interaction between the dancers and the patrons. As such, this conduct is more akin to commercial voyeurism; it is not, however, prostitution. Consequently, Bleigh’s and Shipe’s judgments of sentence for prostitution must be reversed.

Likewise, since Thompson’s conviction for promoting prostitution was based upon the actions of Bleigh and Shipe, his judgment of sentence is also reversed. See 18 Pa.C.S. § 5902(b). Clearly, if the activities promoted do not amount to prostitution, Thompson cannot be guilty of promoting prostitution.

The appellants next claim that the officers violated the “knock and announce” rule by simply entering the premises. See Pa.R.Crim.P. 2007; Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987). However, since the appellants did not include this issue in their post-verdict motions, it is waived. Pa.R.Crim.P. 1123(c)(3).

Lastly, we will simultaneously address the appellants’ contentions that the search warrant was impermissibly vague and overbroad, not based upon probable cause, and that the searches of Shipe’s pocketbook and Thompson’s briefcase were invalid.

The Fourth Amendment of the United States Constitution requires that “no warrants shall issue, but upon probable cause ... and particularly describing the place to be searched and the persons or things to be seized.” U.S. Const, amend. IV. Similarly, the Pennsylvania Constitution states that “no warrant to search a place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause.” Pa. Const, art. 1 § 8. The major purpose of the particularity requirement is to prevent general searches. “This requirement ensures that the search will be carefully tailored ... and will not take on the character of the wide-ranging exploratory searches the Framers [of the United States Constitution] intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72, 80 (1987).

Commonwealth v. Reese, 520 Pa. 29, 32, 549 A.2d 909, 910 (1988). Probable cause exists for the issuance of a search warrant where there is a reasonable belief that objects related to suspected criminal activity will be discovered at the place to be searched. Commonwealth v. Barba, 314 Pa.Super. 210, 215-16, 460 A.2d 1103, 1106 (1983). Here, based upon the affiant’s personal observations, it is clear that a reasonable belief existed that objects related to prostitution, the suspected criminal activity, would be discovered at the named premises. Therefore, the issuance of the search warrant was based upon probable cause. Reese, supra; Barba, supra. Further, our review of the search warrant leads us to conclude that it adequately described the place to be searched and things to be seized. Reese, supra.

We now must decide whether the searches of Shipe’s pocketbook and Thompson’s briefcase were valid. While the officers were executing the instant search warrant, they discovered drugs and drug paraphernalia in Shipe’s pocketbook and Thompson’s briefcase. It is clear that

[w]here a search warrant adequately describes the place to be searched and the persons and/or things to be seized, the scope of the search “extends to the entire area in which the object of the search may be found” and properly includes containers and other receptacles where the object may be secreted. United States v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 2170-71, 72 L.Ed.2d 572 (1982).

Reese, 520 Pa. at 33, 549 A.2d at 911. Here, since the warrant was sufficiently particular and because sexual materials and proceeds of sexual activity, namely marked currency, could have been contained in Shipe’s pocketbook and Thompson’s briefcase, the police had authority to search those items. Id. We therefore conclude that the searches of Shipe’s pocketbook and Thompson’s briefcase were valid, id, and that the drugs and drug paraphernalia discovered in those containers were in the plain view of the officers. “For the plain view doctrine to apply three elements must be satisfied: 1) the initial intrusion must be lawful; 2) observation of the item must be inadvertent; and 3) there must be probable cause to link the observed property with criminal activity.” Commonwealth v. Davidson, 389 Pa.Super. 166, 175, 566 A.2d 897, 901 (1989) (quoting Commonwealth v. Pine, 370 Pa.Super. 410, 419, 536 A.2d 811, 816 (1988)).

The initial intrusion into the respective containers was lawful pursuant to the valid search warrant. The officers inadvertently observed the drugs and drug paraphernalia while searching the containers for sexual devices, materials or proceeds which could have been secreted in the respective receptacles. Reese, supra. Lastly, since the mere possession of drugs is a criminal activity, probable cause existed to link the drugs and drug paraphernalia to criminal activity. Davidson, 389 Pa.Super. at 174-75, 566 A.2d at 901. Thus, the drugs and drug paraphernalia found in Shipe’s pocketbook and Thompson’s briefcase were clearly admissible at trial pursuant to the plain view doctrine. Id.

Since Shipe was sentenced to concurrent terms for prostitution, unlawful possession of a controlled substance, and unlawful possession of drug paraphernalia, we vacate the judgment of sentence for prostitution and affirm the judgments of sentence for possession of a controlled substance and for possession of drug paraphernalia. Likewise, since Thompson was sentenced to concurrent terms of imprisonment for promoting prostitution, possession of a controlled substance, and unlawful possession of drug paraphernalia, we vacate the judgment of sentence for promoting prostitution and affirm the judgments of sentence for unlawful possession of a controlled substance and unlawful possession of drug paraphernalia. See Commonwealth v. Johnston, 348 Pa.Super. 160, 501 A.2d 1119 (1985); Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980).

Affirmed in part; vacated in part.

      . Having concluded that the instant prostitution convictions must be reversed, we need not determine whether, under the circumstances of this case, the application of section 5902 is constitutionally valid.


author: MONTEMURO, Judge:

text:
    586 A.2d 455
    Michael I. HINELINE, Appellant, v. STROUDSBURG ELECTRIC SUPPLY COMPANY, INC. and Stephen F. Sullivan and Sidney Friedman, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1990.
    Decided Jan. 29, 1991.
    Reargument Denied Feb. 28, 1991.

      John B. Dunn, Stroudsburg, for appellant.
    Sandor Yelen, Wilkes-Barre, for Stroudsburg Elec., appellee.
    Gerard J. Geiger, Stroudsburg, for Sullivan, appellee.
    Before McEWEN, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

Appellant, Michael I. Hineline, brought this action against appellees, Stroudsburg Electric Supply Company, Inc., Stephen F. Sullivan and Sidney Friedman, alleging invasion of privacy, violations of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S.A. § 5701 et seq., and violations of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520. The trial court granted appellees’ preliminary objections in the nature of a demurrer and dismissed the complaint, concluding that pursuant to Pennsylvania Rule of Civil Procedure 1020(d), appellant was required to join the instant causes of action in his previous action for wrongful termination, and therefore had waived the present causes of action. The issue on appeal is whether the trial court erred in concluding that appellant’s causes of action for invasion of privacy and wiretap violations arose out of the same transaction or occurrence as his cause of action for wrongful discharge, thereby requiring compulsory joinder under Pa.R.C.P. 1020(d)(1). We affirm.

Initially, we note that in reviewing a grant of a demurrer, we view the demurrer to the complaint as an admission of all well pleaded facts and inferences reasonably deducible therefrom. “In order to sustain a demurrer it must be certain that the law will not permit recovery upon the facts pleaded, all of which are to be taken as true.” Daniel Adams Associates v. Rimbach Pub. Inc., 287 Pa.Super. 74, 76, 429 A.2d 726, 727 (1981), citing Tanenbaum v. Sears, Roebuck & Co., 265 Pa.Super. 78, 401 A.2d 809 (1979).

Under Pa.R.C.P. 1020(d)(1) and (4),

(d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.
******
(4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action.

Pa.R.C.P. 1020(d). Rule 1020(d)(1) requires a plaintiff to join in one action all causes of action which arise from the same transaction or occurrence, regardless of the nature of the claim. Failure to join a cause of action as required by Rule 1020(d)(1) results in waiver of that claim. Jones v. Keystone Insurance Co., 364 Pa.Super. 318, 528 A.2d 177 (1987) (appeal denied 518 Pa. 613, 540 A.2d 535 (1988)).

Rulé 1020(d) is to “be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding” to which it is applicable. Pa.R.C.P. 126. The purpose of Rule 1020(d) is to avoid multiplicity of suits, thereby ensuring the prompt disposition of all rights and liabilities of the parties in a single suit.

The few cases which apply Rule 1020(d) provide little guidance as to how we are to determine whether separate causes of action arise out of the same transaction or occurrence. The trial court relied upon the case of Jones, supra. A careful reading of Jones reveals that the case involved the application of the earlier version of Rule 1020(d) which only required joinder of causes of action in trespass and assumpsit which grew out of the same transactions or occurrences. In Jones, the plaintiff had raised two separate causes of action in assumpsit and therefore did not have to join the two claims in her prior action. 364 Pa.Super. at 326, 528 A.2d at 181. Thus, the Jones Court never reached the question of whether the two claims arose out of the same transaction or occurrence. In Epstein v. State Farm Mutual Insurance Co., 312 Pa.Super. 542, 459 A.2d 354 (1983), this Court applied the pre-1983 version of Rule 1020(d) which required joinder of causes of action arising out of the same transaction or occurrence or series of transactions or occurrences. In Epstein, the plaintiff filed an action against the insurer of his motor vehicle to recover uninsured motorist benefits for injuries resulting from a motor vehicle accident. Plaintiff brought a second action in tort, seeking general and punitive damages for the insurance company’s refusal to pay the uninsured motorist benefits. This Court held that because the two causes of action arose from the same occurrence, that is, the insurance company’s refusal to provide the uninsured motorist benefits, the plaintiff was required to assert the two claims in the same action under the old version of Rule 1020(d). The Epstein case is of little help to us, as the decision provides no explanation for its conclusion that the two causes of action arose out of the same occurrence.

Several cases interpret the phrase “same transaction or occurrence” in the context of other Rules of Civil Procedure which permit joinder of complaints where the cause of action arises out of the same transaction or occurrence as the original complaint. These cases provide some direction to us here, as there is no reason to believe that different interpretations are to be given to the phrase “same transaction or occurrence,” subject to the particular Rule of Civil Procedure which uses the phrase. In Stokes v. Local Order of Moose Lodge No. 696, 502 Pa. 460, 466 A.2d 1341 (1983), the supreme court interpreted Pa.R.C.P. 2252(a)(4) which permits joinder of additional defendants in cases where the cause of, action against the additional defendant arises out the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based. The Court held that complaints arise out of the same transaction or occurrence where they involve “a common factual background or common factual or legal questions.” Stokes, supra, 502 Pa. at 467, 466 A.2d at 1345. Where the evidence that would establish one complaint is distinct from the evidence that would establish the other complaint, the complaints do not arise from the same transaction or occurrence. Id. Similarly, in United National Insurance Co. v. M. London, Inc., 337 Pa.Super. 526, 487 A.2d 385 (1985), this Court adopted the following definition of “transaction” within the meaning of Pa.R.C.P. 2256(b) (permitting additional defendant to bring counterclaim based on same transaction, occurrence or series thereof giving rise to original cause of action):

A “transaction” within the statutes as to counterclaims is defined as the act of transacting or conducting any business, negotiation, management, or proceeding. The word, as used in counterclaim statutes, is broad and comprehensive, and is construed liberally and according to its natural and ordinary signification. In other words, the term is not a technical one and must be construed according to the context and approved usage. It is broader in meaning than “contract” or “tort,” and it may include either or both. It means any act as affecting legal rights or obligations, and properly embraces an entire occurrence out of which a legal right springs or on which a legal obligation is predicated, although it has been held that the term is not synonymous with “accident” or “occurrence.”

United National, supra, 337 Pa.Superior Ct. at 543, 487 A.2d at 393, (quoting 80 C.J.S., Set-Off and Counterclaim, § 36b at 48-50) (emphasis added).

We recognize that Rules 2252(a) and 2256(b) differ from Rule 1020(d) insofar as they permit joinder of complaints where the causes of action arise out of the same transaction or occurrence or series of transactions or occurrences, whereas Rule 1020(d) is limited to causes of action which arise out of the same transaction or occurrence. We nevertheless find the analysis in Stokes and United National to be applicable here, as the discussion in Stokes is limited to what constitutes the same transaction or occurrence, and the language quoted from United National simply defines the term “transaction.”

Thus, we must examine the factual underpinnings of appellant’s two complaints and determine whether the causes of action for wrongful discharge, invasion of privacy and wiretap violations arose from the same transaction or occurrence, that is, whether the claims involve a common factual background or common legal questions.

The first complaint alleges the following facts. From October 1, 1977 until December 17, 1986, appellant was an employee of appellee, Stroudsburg Electric Company (“Stroudsburg”). Appellee, Stephen F. Sullivan, was both the president of Stroudsburg and appellant’s supervisor. Sometime prior to December 17, 1986, Stroudsburg installed four cameras with audio hookup which were used for visual and aural monitoring of Stroudsburg’s employees and customers; the surveillance equipment was used without the knowledge of the employees and customers, and without the approval, acquiescence or authority of appellant. On December 17, 1986, upon discovering that the monitoring system was in full use as both an audio and visual monitor, appellant disconnected the equipment so as to prevent further audio monitoring of Stroudsburg’s customers and employees, including appellant. When appellee Stephen Sullivan learned of appellant’s disconnection of the equipment, he immediately fired appellant.

On the basis of these facts, appellant filed the first complaint on June 18, 1987. The first complaint set forth six counts, including a claim for wrongful discharge from his employment with appellees in which he alleged that the termination of his employment was contrary to public policy as the surveillance system was illegal. The first complaint was dismissed on the basis of preliminary objections, and the dismissal was ultimately affirmed by this Court. See Hineline v. Stroudsburg Electric Supply Co., Inc. (Hineline I), 384 Pa.Super. 537, 559 A.2d 566 (1989), allocatur denied 524 Pa. 628, 574 A.2d 70 (1989).

On October 7, 1988, appellant filed the present action for invasion of privacy and violations of the Pennsylvania and federal wiretap laws. The second complaint sets forth the identical or substantially the same factual allegations as the first complaint regarding appellees’ installation and operation of audio and video equipment, appellant’s disconnection of the system and appellee Sullivan’s immediate firing of appellant. The only difference between the first complaint and the instant complaint is the legal theories upon which relief is sought. The trial court therefore concluded that the two complaints arose out of the same transaction or occurrence, and under Rule 1020(d), appellant was required to join his claims for invasion of privacy and wiretap violations in the first action involving wrongful discharge.

We agree with the trial court that appellant’s causes of action for wrongful discharge, invasion of privacy and wiretap violations arose out of the same transaction and occurrence, that is, appellees’ installation and operation of the surveillance equipment and appellant’s disconnection thereof. All of the asserted causes of action share a common factual background and legal issues, as they are based on the premise that appellees acted illegally in using the video cameras with audio capabilities at appellees’ place of business.

To make out his prior action in wrongful discharge, appellant would have had to prove the illegality of appellees’ conduct under the wiretap statutes, as his wrongful discharge case was based on the theory that the termination was due to appellant’s disconnection of the allegedly illegal electronic surveillance system. See Hineline I, supra, 384 Pa.Super. at 539, 542 n. 2, 559 A.2d at 568-69 n. 2 (“Specifically, appellant asserts that appellees were violating 18 Pa.C.S.A. § 5703(1) by the ‘secret taping of a customer’s or an employee’s conversation in a retail establishment____’ ”). Likewise, in establishing the elements of the instant causes of action, appellant would have to establish that appellees’ conduct violated the wiretap statutes. Thus, the cases involve common legal questions.

From a factual standpoint, both cases require proof as to the installation of the equipment, the aural monitoring of appellant, appellees’ customers and other employees, and appellant’s disconnection of the equipment. The most telling factor here is that appellant alleged the identical or nearly identical facts in support of both of his complaints. The same occurrence brought about the causes of action for wrongful discharge, breach of privacy and wiretap violations. Thus, appellant’s evidentiary proof would be the same in both cases, with the exception of his proof of damages.

Should these two cases have gotten past the preliminary objection stage, the same pretrial discovery would have taken place in both cases and the same witnesses, including the parties, would be required to appear at two separate trials. Two separate juries would have had to be impanelled to hear virtually the same evidence and resolve many of the same legal questions. This kind of repetition is precisely what Rule 1020(d) was intended to avoid. We note that this is the third appeal to this Court arising out of appellees’ operation of the illegal surveillance system.

Given the interrelatedness of the factual and legal issues posed by the two cases, we hold that appellant’s causes of action arose out of the same transaction or occurrence and therefore should have been joined in the same complaint. Our conclusion is consistent with the purpose of Rule 1020(d) to prevent the imposition of a heavy burden on defendants and the judicial system to defend and resolve multiple suits arising out of the same occurrence.

Appellant argues that his two complaints are based upon two separate transactions or occurrences: the firing of appellant for his disconnection of the monitoring equipment and the illegal surveillance of appellant. This argument overlooks the fact that appellees’ termination of appellant’s employment did not occur in a vacuum. But for appellees’ use of the illegal equipment, appellant would not have a cause of action for wrongful discharge. We disagree that the phrase “same transaction or occurrence” within the meaning of Rule 1020(d) should be so stringently interpreted as to mean a single fact or instantaneous event, rather than a combination of acts and events giving rise to a right to judicial relief. As the Court in United National stated, the term transaction “properly embraces an entire occurrence out of which the legal right springs or on which a legal obligation is predicated.” 337 Pa.Super. at 543, 487 A.2d at 393. Thus, we do not agree that the causes of action are based on distinct transactions or occurrences simply because appellees’ use of the illegal surveillance system precipitated the further harm of appellees’ termination of appellant’s employment.

For all of the foregoing reasons, we affirm the order of the trial court dismissing this case pursuant to Rule 1020(d). In doing so, we make no determination as to the validity of the merits of this case; we recognize the seriousness of appellees’ conduct under both the criminal and civil provisions of the wiretap statutes.

Order affirmed.

      . Prior to July 1, 1984, Rule 1020 read:
      (d)(1) If a transaction or occurrence or a series of transactions or occurrences gives rise to causes of action in assumpsit and trespass against the same person, including causes of action in the alternative, they shall be joined in an action against any such person in separate counts____
      Following the Supreme Court’s abolishment of the procedural distinctions which had existed between assumpsit and trespass and their creation of the single, unified action known as "civil action” in 1983, the Court amended Rule 1020 to read as the current version. Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 528 A.2d 177 (1987).

      . The other counts set forth claims for intentional interference with contractual relationship, breach of covenant of good faith and fair dealing, punitive damages, and breach of fiduciary duty by Stroudsburg and Sidney Friedman.

      . A first appeal from the first complaint was quashed as interlocutory, as the trial court had permitted appellant to amend his count for breach of contract. See Hineline v. Stroudsburg Electric Supply Co., No. 42 Philadelphia 1988 (memorandum filed September 7, 1988) 383 Pa.Super. 671, 550 A.2d 254 (table). After the appeal was quashed, appellant withdrew his breach of contract count and filed another notice of appeal from the order dismissing his wrongful discharge claim. In this second appeal, this Court held that appellant had failed to state a cause of action in wrongful discharge based on a violation of public policy. See Hineline I, supra.


author: HOFFMAN, Judge:

text:
    586 A.2d 924
    Anthony S. WILLIAMS, Appellant, v. OFFICE OF the PUBLIC DEFENDER COUNTY OF LEHIGH, F.E. Charles, Esq. & Chief Public Defender, Michael E. Brunnabend, Esq., Aaron Matte, Esq., Dennis G. Charles, Esq., Robert J. Magee, Esq., E.R. Eidelman, Esq. and the Attorney General Office of Pennsylvania, Mr. Leroy Zimmerman.
    Superior Court of Pennsylvania.
    Submitted Aug. 20, 1990.
    Filed Dec. 18, 1990.
    Reargument Denied March 4, 1991.

      Anthony S. Williams, pro se.
    Thomas M. Caffrey, Allentown, for Office of the Public Defender, appellees.
    Robert J. Magee, Allentown, pro se.
    Calvin R. Koons, Deputy Atty. Gen., Harrisburg, for Atty. Gen. Office, appellees.
    Before ROWLEY, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a February 19, 1990 order granting appellees’ preliminary objections and dismissing appellant’s action for damages sustained as a result of appellees’ alleged negligent representation of him in a criminal action. Appellant argues that the trial court erred in granting appellees’ preliminary objections because appellees were properly served, and appellees are not entitled to local government agency immunity. We agree and, accordingly, we vacate the trial court’s order and remand for proceedings consistent with this Opinion.

Appellant, who is incarcerated and proceeding pro se, filed a legal malpractice complaint against the Public Defender’s Office of Lehigh County on June 1, 1987. In his complaint, appellant alleged that the above-mentioned parties had acted negligently in their representation of him in the criminal case which resulted in his incarceration. On November 30, 1989, in response to appellant’s complaint, appellees filed preliminary objections averring that they had not been properly served, and that appellant had failed to state a cause of action. The court below agreed that appellees had not been properly served, and also held that appellees were entitled to immunity from appellant’s suit under the Political Subdivision Tort Claims Act (the “Act”). On February 20, 1990, the court entered its order granting appellees’ preliminary objections and dismissing appellant’s cause of action. This timely appeal followed.

Appellant first argues that the trial court erred in holding that he failed to properly serve appellees. Specifically, appellant argues that service of his complaint upon the, secretary of the Public Defender’s Office constituted adequate service upon the individual members of that office named in the complaint. We agree.

Pa.R.C.P. 402(a)(2)(iii) provides that:

(a) Original process may be served
(2) by handing a copy ...
(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

Id. Rule 402(a)(2)(iii) is a recodification of prior Rule 1009(b)(2)(iii) which was rescinded on June 20, 1985 (effective January 1, 1986). See Disposition Table, reprinted preceding Pa. R.C.P. 400. In interpreting prior Rule 1009(b)(2)(iii), we have noted that:

When Rule 1009(b)(2)(iii) refers to an office or place of business “of the defendant,” it requires that the defendant have more proprietary responsibility and control over the business than that possessed by the average employee.

Martin v. Gerner, 332 Pa.Super. 507, 516, 481 A.2d 903, 908 (1984). The purpose of the Rule is “to assure that the defendant will actually get knowledge of the commencement of the action against him and of his duty to defend....” Cohen v. International Org’n Masters, et al., 247 Pa.Super. 83, 87, 371 A.2d 1337, 1339-40 (1977). We have carefully reviewed the Explanatory Comment which precedes Rule 402, and find no evidence that its purpose is different from that of Rule 1009. Finally, we note that, in determining whether a defendant possesses sufficient proprietary interest or control over the place at which service was made, cases interpreting Rule 1009 consistently looked to the totality of the circumstances surrounding the defendant’s contact with the place of service. See Martin, supra; Cohen, supra (defendant Secretary-Treasurer of union did not possess sufficient control over operation of Pennsylvania branch of union for service upon union office to be effective as to him) (citations omitted); see also Pincus v. Mutual Assur. Co., 457 Pa. 94, 321 A.2d 906 (1974) (trustee of corporation possessed requisite proprietary interest for effective service at corporate office); Sharp v. Valley Forge Med’l Center, 422 Pa. 124, 221 A.2d 185 (1966) (though defendant doctor had office at hospital where service attempted, he did not possess adequate interest as he worked in intern capacity and did not know of action until judgment entered against him); Branch v. Foort, 397 Pa. 99, 152 A.2d 703 (1959) (defendant maintenance employee did not possess sufficient proprietary or management interest in business for effective service); Slater v. Goldberg, 266 Pa.Super. 52, 402 A.2d 1073 (1979) (defendants had sufficient minimum contacts to allow effective service where corporate office wholly owned by them).

Here, the defendants whom appellant sought to serve (appellees) are all members of the Public Defender’s Office of Lehigh County. The work product of that office is directly produced by its attorneys. Thus, unlike the defendants in Cohen, Sharp and Branch, who were held not to have sufficient proprietary interest and control over the business to have been effectively served, it appears that appellees here were regularly present at the office where service was made, and formed an integral part of its functioning and management. Furthermore, this case is distinguishable from those cases because of the unique nature of the office in question. Appellees possess a high degree of legal knowledge and sophistication; they are members of an office that handles legal documents such as notices of service on a regular basis. Finally, the record reveals that service was made upon the secretary of their office, and that defendants responded to appellant’s complaint before judgment could be entered against them for failure to reply. See Sheriff’s Return of Service, June 5, 1987; Defendants’ Preliminary Objections, November 30, 1989. Thus, there can be no question that they actually received notice of the action pending against them. In light of the totality of the circumstances, we conclude that service in this case was adequate, and the court’s order is not affirmable based on inadequate service.

Appellant’s second argument is that the trial court erred in determining that the Public Defender’s Office of Lehigh County is entitled to immunity under the Political Subdivision Tort Claims Act. We agree.

The concept of immunity originally was a judicial creation, and gradually was expanded to encompass the judiciary, and both high and low level governmental officials. See generally Ayala v. Phila. Bd. of Pub. Educ., 453 Pa. 584, 588-92, 305 A.2d 877, 879-81 (1973). The rationale for immunity was obvious. If a person in public office or service was required to answer in tort for routine acts performed in the public interest, he or she might be deterred from the performance of those duties. Cf. Ferri v. Ackerman, 444 U.S. 193, 203-04, 100 S.Ct. 402, 408-09, 62 L.Ed.2d 355 (1979). (“The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion.”) (construing federal law). Over the years, however, the concept was overexpanded, and came under increasing criticism. Finally, in Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978), our Supreme Court abrogated the common law doctrine of immunity altogether. Then, in 1978, our Legislature promulgated 53 P.S. 5311.101 et seq., a narrower statutory form of immunity. The present Act, 42 Pa.C.S.A. §§ 8541 et seq., is directly derived from that section, and provides as follows:

Governmental Immunity Generally

Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.

42 Pa.C.S.A. § 8541. Our research reveals no cases, and the parties have cited none, concerning whether Public Defenders are entitled to statutory sovereign immunity under either of the Acts. We note, however, that the issue of their immunity under common law was addressed by our Supreme Court in Reese v. Danforth, 486 Pa. 479, 406 A.2d 735 (1979). That case is instructive here.

The lead opinion in Reese, authored by JUSTICE (now CHIEF JUSTICE) NIX, opined that:

In order to be public officers, [the Public Defenders] would have to occupy public offices.... In Finley v. McNair, 317 Pa. 278, 281, 176 A. 10, 11 (1935), we said that [T]he question of whether an individual is a public officer
.....must be determined by a consideration of the nature of the service to be performed by the [officeholder], and of the duties imposed upon him and whenever it appears that those duties are of a grave and important character, involving in the proper performance of them some of the functions of government, the officer charged with them is clearly to be regarded as a public one____

Id. 486 Pa. at 483, 406 A.2d at 738. With regard to the specific issue of the status of public defenders, Justice Nix noted that:

In comparing the office of the public defender to that of county solicitor, it is apparent that the public defender’s function is more akin to the role of the privately employed attorney____ This is because the defender’s duty is to represent his clients even as against the interests of the county____
******
The relationship between the county and the public defender is similar to that between an independent contractor and the party contracting for his services. The County has no control over the manner of representation given indigents by the defender. The nature of the work involves the attorney-client relationship and is of a type that precludes outside interference or direction by the county____
[O]nce the appointment of a public defender ... is made, his public or state function ceases and thereafter he functions purely as a private attorney____ His professional relationship with his client takes on all the obligations and protections attendant upon a private attorney-client relationship except one: the public pays his fee. In this respect, he is like that physician rendering professional services which are paid for out of public funds and, like that physician, he ought to be subject to liability for tortious conduct.

Id., 486 Pa. at 484-86, 406 A.2d at 738-39. Justice Nix concluded that:

[The public defenders] do not serve as public administrators with policy-making functions and the duty to act according to directives handed down to them by other public officials____
[W]e can conceive of no principled basis for differentiating between public defenders and privately retained and paid counsel whose clients are afforded ... the civil action in damages.

Id., 486 Pa. at 487-89, 406 A.2d at 740 (citations omitted). See also Ei Bon EE Baya Ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986) (private counsel appointed by court to represent indigent defendant not entitled to immunity for negligent representation).

We recognize that Reese did not involve statutory immunity, and that Chief Justice Nix’s lead opinion did not command a majority of the court. Nevertheless, we see nothing either in the immunity statute or in policy that would give us reason to question the fundamental soundness of the principles which animated that decision. There is no question that public defenders are not explicitly granted immunity under the statute. Instead, they are immune only if they fit into the rubric of a “local agency.” The question then, as in Reese, becomes whether they are public officials of some kind; on this point, Chief Justice Nix’s analysis of the public defender’s function in Reese is controlling. The mere fact that “each county is mandated to maintain a public defender’s office” by 16 Pa.S.A. § 9960.3 in no way changes the essentially private nature of the defender’s duty to his or her clients. Appellees have not attempted to distinguish Reese, nor have they cited any authority that would indicate that the purpose of the public defender has changed in the past eleven years so as to call into question the reasoning underlying Reese. Therefore, in accordance with the principles articulated in the lead opinion in Reese, appellees are not entitled to immunity under the Act for the harm appellant alleges they caused him.

For the foregoing reasons, we hold that the trial court erred in granting appellees’ preliminary objections on the grounds that appellees were not properly served and were immune from liability. Accordingly, we vacate the order of the court below, and remand for proceedings consistent with this Opinion.

Order vacated. Case remanded. Jurisdiction relinquished.

      . Appellant’s complaint also named as parties the Attorney General of the Commonwealth of Pennsylvania and private court-appointed counsel, Robert Magee, Esq. The trial court granted the Attorney General’s preliminary objections on November 11, 1989, on the ground that appellant had failed to state a cause of action. Appellant does not appeal from the November 11 order. Moreover, although he names Magee as a party to this appeal, the record shows that Magee was properly served, see Sheriffs Return of Service, June 5, 1987, and there is no evidence that Magee was a party to the order appealed from here. Therefore, we need only concern ourselves with the status of the Public Defender’s Office and the individual defenders themselves.

      . 42 Pa.C.S.A. § 8541 et seq.

      . See Disposition Table preceding Title 42, Judiciary and Judicial Procedure, Pennsylvania Consolidated Statutes Annotated.

      . Reese was argued to six Justices. Justice Nix’s lead opinion was not joined in its entirety by any Justice. Justice Roberts wrote a concurring opinion which was joined by Justice Larsen, emphasizing that, in his view, existing caselaw prohibited granting judicial immunity to public defenders. Justice Manderino joined in the opinion, except to the extent it relied on Lennox v. Clark, 372 Pa. 355, 93 A.2d 834 (1953), for the proposition that the District Attorney’s duty to the sovereign is different than that of the Public Defender. Justice O’Brien dissented and was joined by then-Chief Justice Eagen.

      . We note that, shortly after Reese was decided, the Supreme Court of the United States held that appointed counsel in federal criminal cases are not entitled to immunity against state malpractice suits. See Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979). The analysis in Ferri, like the analysis in Reese, focused on the similarities between appointed counsel and privately retained counsel. See 444 U.S. at 204-05, 100 S.Ct. at 409-10.