author: JOHNSON, Judge:

text:
    626 A.2d 575
    COMMONWEALTH of Pennsylvania v. Michael HLATKY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1993.
    Filed May 25, 1993.

      Dwight L. Danser, Easton, for appellant.
    Victoria Coyle, Asst. Dist. Atty., Bethlehem, for Com., appellee.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

Michael Hlatky appeals from the judgment of sentence entered following his conviction by a jury on charges of aggravated assault, recklessly endangering another person, and false reports to police. We affirm.

On September 22, 1989, Officer Sean Stuber arrived at the residence of Michael and Augusta Hlatky, in response to a call for an ambulance to assist an injured child. Upon arrival at the Hlatky residence, the officer was greeted by Augusta Hlatky who showed him where four year old Angela Lane was lying unconscious, and without spontaneous respirations. Augusta Hlatky informed the officer that Angela had fallen from a tree, thereby sustaining her injuries. The officer immediately administered cardio-pulmonary resuscitation to the child. While administering emergency treatment, Officer Stuber noted that there were multiple bruises on the child’s face, head and other areas of her body. He also noticed burn marks on the child’s hand and foot. Emergency personnel arrived on the scene a short while later and Angela was taken to the hospital for further treatment.

Officer Stuber, along with Chief Harry Brown, then proceeded to question the adults on the scene, Michael and Augusta Hlatky and their sister-in-law, Melody Hlatky who was the aunt and temporary custodian of Angela. These individuals were questioned together and each one indicated that Angela had fallen from a tree, had entered the residence mumbling, “I fell, I fell,” gave a loud scream and became unconscious.

On September 25, 1989, three days after Angela had sustained her injuries, Augusta, Michael, and Melody Hlatky arrived at the police station at 2:35 a.m. to speak with Chief Brown about Angela. After being given Miranda warnings, Michael, Augusta, and Melody Hlatky gave statements to the police. Hollowing statements in which they admitted inflicting previous injuries upon Angela unrelated to the present incident, both Melody and Augusta Hlatky were arrested and charged with attempted homicide, aggravated assault and other charges. Michael Hlatky was also arrested, based on Melody Hlatky’s statement which implicated him as the perpetrator of the abuse upon Angela during the incident in question.

Michael Hlatky has maintained that he was “play wrestling” with Angela when she fell toward him, hitting her head on a chair. He stated that the child then bounced backward striking her head on the floor at which time she stopped breathing. Melody Hlatky, however, testified to a different version of the events leading to Angela’s injuries. Melody testified that Michael: tripped Angela with his foot several times, causing her to fall to the floor; struck the child on the back five or six times; picked her up by the back of her shirt, raised her to shoulder height and dropped her, causing her to hit the floor face first. Melody further testified that when Angela got up, Michael tripped her once again causing her to hit a chair with her face and fall backward onto the floor. The child then turned over, screamed, and fell into unconsciousness.

Expert testimony by Angela’s first treating physician, Dr. Michael Rhodes, established that Angela suffered brain damage due to oxygen deprivation. Testimony by a forensic pathologist established that Angela’s injuries were the result of severe trauma to the brain and were inconsistent with a play type of injury. Angela suffered permanent brain damage and remained in a coma at the time of trial.

Following a jury trial on charges of attempted homicide, aggravated assault, recklessly endangering another person, and false reports to law enforcement officers, Hlatky was found not guilty of attempted homicide and guilty of all other charges. Post-trial motions were denied. Hlatky was then sentenced to a term of imprisonment of 75 months to 20 years on the aggravated assault conviction and a 1-2 year consecutive term of imprisonment on the false reports to law enforcement officers conviction. Following the denial of his Motion for the Reconsideration of Sentence, Hlatky appeals to this Court.

Hlatky presents six issues for our review, asking whether:

1. the trial court unduly interfered with Hlatky’s selection of defense counsel;
2. the verdict is against the weight of the evidence, due to the conflicting evidence presented during the Commonwealth’s case;
3. the evidence is insufficient to support the conviction of aggravated assault;
4. the evidence is insufficient to support the conviction on the charge of giving false reports to law enforcement authorities;
5. the trial court erred in permitting the Commonwealth to question Augusta Hlatky concerning the circumstances surrounding her separation from Michael Hlatky; and
6. the sentence imposed was excessive and harsh constituting a manifest abuse of discretion on the part of the trial court.

First, Hlatky contends that the trial court unduly interfered with his selection of counsel because the court denied Hlatky’s request to have defense counsel for his wife sit and assist his defense counsel during trial. The trial court ruled that there was an inherent conflict of interest between Michael and Augusta Hlatky since Augusta had pled guilty to aggravated assault upon the same child, who was the alleged victim of Michael Hlatky’s assault. At the time of Hlatky’s trial, Augusta Hlatky had yet to be sentenced and her guilty plea was still subject to withdrawal.

The right to counsel of choice, while not absolute, is guarded by the sixth amendment of the United States Constitution. Commonwealth v. Coffey, 415 Pa.Super. 131, 608 A.2d 560 (1992). When a defendant’s selection of counsel, under the particular facts and circumstances of a case, places the fairness and integrity of the defendant’s trial in jeopardy, the defendant’s right to counsel of choice may justifiably be denied. Commonwealth v. Cassidy, 390 Pa.Super. 359, 368, 568 A.2d 693, 697 (1989), appeal denied, 525 Pa. 641, 581 A.2d 567 (1990). However, a presumption must first be recognized in favor of the defendant’s counsel of choice; to overcome the presumption, there must be a demonstration of an actual conflict or a showing of a serious potential for conflict. Id. at 369, 568 A.2d at 698.

In the present case, the trial court did not interfere with Hlatky’s choice of his primary defense counsel but, rather, refused to allow counsel for Hlatky’s wife to sit and assist Hlatky’s chosen counsel. The trial court articulated the reasoning behind its refusal to permit counsel for Hlatky’s wife to assist his primary defense counsel:

THE COURT: ... I am ruling that you are in direct conflict with your wife. Your interests and your wife’s interests are directly in conflict here. What your wife is subject to by way of jeopardy from sentence in regard to the plea of nolo confedere [sic] may depend upon her testimony in this case possibly against you.
Whether she will testify for or against you, I don’t know. But we are not going to permit anyone to be involved in your defense who might have a higher obligation to your wife at the risk of your later claiming, even though you would now waive it, that your counsel may have been ineffective because he acted in part or in any way upon advice of your wife’s counsel.

N.T., March 2, 1992, at 97-98. The trial court further found that Hlatky’s primary defense counsel was competent and adequately prepared to fully defend Hlatky throughout the trial and Hlatky would suffer no prejudice from the court’s refusal to allow counsel for Hlatky’s wife to assist primary defense counsel.

While Hlatky frames this issue in terms of the trial court’s interference with his right to choose his own counsel, Hlatky cites to no authority, and we find none, under which a defendant has a right to have a co-defendant’s counsel of choice present for his defense in addition to his own selected counsel. Additionally, Hlatky alleges no prejudice suffered from the trial court’s ruling. In light of the conflict of interest, or at least the serious potential for a conflict of interest, presented by the divergent interests of Michael and Augusta Hlatky and their respective counsel in this case, we are unable to find error in the trial court’s ruling on this issue.

Second, Hlatky contends the verdict was against the weight of the evidence due to the conflicting evidence presented by the Commonwealth. We find no merit in this contention.

When assessing whether a verdict is against the weight of the evidence our scope of review is quite narrow. Commonwealth v. Rochon, 398 Pa.Super. 494, 581 A.2d 239 (1990). In order to hold that a verdict was against the weight of the evidence, it must be clear from the record that the verdict shocks this Court’s sense of justice. Commonwealth v. Allen, 394 Pa.Super. 127, 575 A.2d 131 (1990), appeal denied, 526 Pa. 627, 584 A.2d 311 (1990). Where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part or none of the evidence presented. Commonwealth v. Earnest, 386 Pa.Super. 461, 563 A.2d 158 (1989). The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court and we will not disturb that decision absent an abuse of discretion. Commonwealth v. Pirela, 398 Pa.Super. 76, 580 A.2d 848 (1990), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991).

We recognize that a verdict of guilt may never be based on surmise and conjecture. Commonwealth v. Smith, 502 Pa. 600, 467 A.2d 1120 (1983). However, the mere existence of a conflict in the evidence does not mean the trier of fact was required to resort to speculation. Commonwealth v. Gonzalez, 325 Pa.Super. 371, 472 A.2d 1389 (1984).

In the present case, Hlatky contends that the inconsistencies between the testimony of the two Commonwealth expert witnesses as to the cause of the child’s comatose condition renders the jury’s verdict the product of mere speculation and surmise and requires reversal. We are unable to agree.

Two physicians were presented as expert witnesses in this case, Dr. Rhodes was the treating physician after the child’s arrival in the emergency room. Dr. Isadore Mihalikis is a forensic pathologist who was consulted to examine the child and give his opinion as to the causation of her condition. Both physicians agreed that the child’s coma was caused by an acute injury to the brain resulting in oxygen deprivation to that organ. While minor inconsistencies did occur in the testimony of the two physicians, those inconsistencies were for the fact finder to resolve. After a thorough review of the record, we conclude that the inconsistencies in the expert testimony did not render that testimony so unreliable that a jury could not have resolved those inconsistencies to reach the verdict rendered in this case. We, therefore, reject Hlatky’s second allegation of error.

Third, Hlatky alleges that there is insufficient evidence to support his conviction on the charge of aggravated assault. Hlatky contends that the Commonwealth failed to prove that he acted with the required intent in his interaction with Angela.

The standard of review applied to determine whether the evidence introduced at trial is sufficient to sustain a conviction is whether, viewing all the evidence introduced at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inference sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Tau Kappa Epsilon, 530 Pa. 416, 419, 609 A.2d 791, 793 (1992). We will review Hlatky’s claim in light of this standard.

The crime of aggravated assault, for which Hlatky was convicted, is defined at 18 Pa.C.S. § 2702(a)(1). This statute states in pertinent part:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

Where serious bodily injury is inflicted, the Commonwealth is not required to prove a specific intent; this is because aggravated assault may be proven if the defendant acted recklessly. Commonwealth v. Magnelli, 348 Pa.Super. 345, 502 A.2d 241 (1985). Since the fact that Angela sustained serious injury is not contested in this case, the Commonwealth had the burden of proving that Hlatky acted recklessly under circumstances manifesting an extreme indifference to the value of human life. We conclude that the Commonwealth sustained this burden.

Reckless is defined at 18 Pa.C.S. § 302(b)(3) as:

(3) A person acts recklessly with respect to a material element. of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

A review of the record reveals the reckless nature of Hlatky’s actions. Testimony at trial established that, contrary to his assertions, Hlatky was not playing with Angela, but was striking her violently and with anger. Hlatky repeatedly tripped Angela and struck her in the torso area. He then lifted Angela to shoulder height and dropped her causing her to fall on her face. When Angela was able to get up from this fall, Hlatky kicked her feet out from under her. This final act caused Angela to fall violently, strike her head on a chair, and be rendered unconscious.

Hlatky maintains that there is no evidence that he intended Angela to strike her head or sustain injury. Intent on Hlatky’s part to cause the specific injury sustained by the child is not necessary. Commonwealth v. Scofield, 360 Pa.Super. 552, 521 A.2d 40 (1987), appeal denied, 517 Pa. 593, 535 A.2d 82 (1987). It is sufficient that Hlatky acted with conscious disregard of a substantial and unjustifiable risk to the child and that his actions deviated from the standard of conduct that a reasonable person would observe in that situation. The record provides ample support that Hlatky acted in such a way. We, therefore, find Hlatky’s third claim to be meritless.

Fourth, Hlatky contends that the evidence is insufficient to support his conviction on the charge of false reports to law enforcement authorities. We will review the evidence in the light most favorable to the Commonwealth as verdict winner, giving the Commonwealth the benefit of all reasonable inferences therefrom, to determine if the evidence is sufficient to establish every element of the crime beyond a reasonable doubt. Commonwealth v. Tau Kappa Epsilon, supra.

False reports to law enforcement authorities is defined at 18 Pa.C.S. § 4906(b)(1) as:

(b) Fictitious reports. — A person commits a misdemeanor of the third degree if he:
(1) reports to law enforcement authorities an offense or other incident within their concern knowing that it did not occur;

In this case, when Hlatky was questioned by Officer Stuber regarding the cause of Angela’s injuries, Hlatky stated that the child had fallen out of a tree. Hlatky contends that since his false statement to the police was not volunteered but made in response to questioning, it cannot constitute a false report. We disagree.

The statute does not differentiate between false reports of an incident given by an individual in response to police questioning from those spontaneously given without police inquiry. Our supreme court, while not ruling on the sufficiency of the evidence to uphold a conviction of false reports to law enforcement officials, did describe circumstances under which an individual might be charged with this offense in Commonwealth v. Bestwick, 489 Pa. 603, 414 A.2d 1373 (1980). In that case, the defendant objected to the convening of a grand jury to investigate his case rather than affording the defendant a preliminary hearing at which he could cross-examine witnesses. There, the court found no merit in the defendant’s argument stating that if witnesses at the grand jury hearings had answered the district attorney’s questions untruthfully, they could have been prosecuted for false reports to law enforcement authorities under 18 Pa.C.S. § 4906. Id. at 611, 414 A.2d at 1876-1877.

There, the court clearly stated that if false answers are given in response to questioning from law enforcement officials, the charge of false reports will stand. It is exactly that factual scenario which is before us in the present case. Officer Stuber, upon arriving at the Hlatky residence, asked Hlatky what had caused the child’s condition. The officer specifically stated that he wanted to relay that information to. paramedics and doctors who would be treating Angela’s injuries. In light of this knowledge, and his knowledge of the true nature of the incident causing the child to be rendered unconscious, Hlatky answered falsely. We are unable to conclude that the evidence presented to the jury of Hlatky’s responses to police questioning was insufficient to have permitted them to return a verdict of guilty on the charge of false reports to law enforcement authorities.

Fifth, Hlatky asserts in an unsupported argument that the trial court erred in permitting the Commonwealth to question Augusta Hlatky regarding her possible bias during her testimony on behalf of the defense. We find no error.

At trial, Augusta Hlatky testified on behalf of her husband. On cross-examination, the following exchange took place:

Q As a result of these charges, your family has been markedly disrupted, isn’t that true?
A What do you mean?
Q I mean Michael is no longer in your home, isn’t that correct?
A That’s correct.
Q Isn’t it a fact, ma’am, that you would say anything, notwithstanding your oath, to protect your family and get him back into your home?
A What did you mean?
Q I mean you have taken an oath to tell the truth?
A Right.
Q Do you understand that?
A Yes.
Q Isn’t it a fact that you would say anything to this jury, notwithstanding whether it was true or not, just to get your family back together and protect your family and get your husband back into your home?
A No.
Q Isn’t that true?
A No.
Q That is not true?
A No.

N.T., March 13, 1991, at 98-99.

We note that the scope and manner of cross-examination are always within the sound discretion of the trial judge whose decisions will not be overturned absent an abuse of that discretion. Commonwealth v. Tyler, 402 Pa.Super. 429, 587 A.2d 326 (1991). Here, the trial court found that the above questions posed on cross-examination properly addressed the interests of the witness which might affect credibility. Trial court opinion at 10.

Testimony that may show that a witness has a motive to fabricate should not be excluded. See Commonwealth v. Dawson, 486 Pa. 321, 405 A.2d 1230 (1979). Moreover, our supreme court has stated that a party against whom a witness is called always has the right to show by cross-examination that a witness is biased or has an interest in the result of the trial. Commonwealth v. Williams, 524 Pa. 218, 228, 570 A.2d 75, 80 (1990). We, therefore, are unable to find error in the trial court’s permitting the Commonwealth to cross-examine Augusta Hlatky in the above manner.

In his sixth and final claim, Hlatky questions the sentence imposed by the trial court as harsh and excessive. As this is a challenge to the discretionary aspects of sentencing, Hlatky is required to include in his brief a separate concise statement demonstrating that there exists a substantial question as to the appropriateness of the sentence under the Sentencing Code. See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and Pa.R.A.P. 2119(f). Hlatky has included a separate concise statement in his brief as is required by Rule 2119(f).

We will now consider whether Hlatky has demonstrated the existence of a substantial question that the sentence imposed is inappropriate under the Sentencing Code. 42 Pa.C.S. § 9781(b). Whether a substantial question exists must be determined on a case-by-case basis. Commonwealth v. Semuta, 386 Pa.Super. 254, 562 A.2d 894 (1989), appeal denied, 524 Pa. 596, 568 A.2d 1246 (1989). It is only where a party can articulate reasons why a particular sentence raises doubts that the sentencing scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion. Commonwealth v. Williams, 386 Pa.Super. 322, 324, 562 A.2d 1385, 1387 (1989) citing Tuladziecki, 513 Pa. at 515, 522 A.2d at 20.

We will be inclined to find that a substantial question has been put forth where an appellant advances a colorable argument that the trial court’s actions were inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process. Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987).

Hlatky contends that the trial court failed to sufficiently state its reasons for the sentence imposed. He also alleges that the trial court relied upon impermissible reasons in sentencing Hlatky in the aggravated range on his convictions. We conclude that Hlatky’s claim that the trial court failed to place sufficient reasons for his sentence on the record presents a substantial question. Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992); Commonwealth v. Thomas, 370 Pa.Super. 544, 537 A.2d 9 (1988). Section 9721(b) of the Sentencing Code specifically provides:

... In every case in which the court imposes a sentence for a felony or a misdemeanor, the court shall make as part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed....

Our standard when reviewing the discretionary aspects of sentencing is very narrow. We will reverse only when the appellant has demonstrated a manifest abuse of discretion on the part of the sentencing court. Commonwealth v. Wright, 411 Pa.Super. 111, 600 A.2d 1289 (1991).

The standard for determining whether the sentencing judge properly stated the reasons for imposition of sentence is controlled by the statement of our supreme court in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). See also Commonwealth v. Jones, supra. In Devers, the court held that the sentencing court may satisfy the requirement of disclosure, on the record, of the reasons for imposition of a particular sentence where the court indicates that it has been informed by a pre-sentence report. Devers at 101-102, 546 A.2d at 18.

In the present case, the sentencing court’s disclosure satisfied the requirements set forth under Devers. The court indicated that it had reviewed the pre-sentence report including Hlatky’s personal history and prior record score. The court also received additional information and argument from counsel for the defense and argument from the Commonwealth. Hlatky then personally addressed the court and indicated remorse for his actions; the sentencing court indicated that it believed the expression of remorse to be genuine.

After allowing the accused and the Commonwealth unrestricted time for providing the court with additional information and argument, the sentencing court proceeded to indicate its reasons for sentencing within the aggravated range of the sentencing guidelines, including the atrocious nature of Hlatky’s acts which were barbaric and reflected “a mind regardless of social consequence.” N.T., August 5,1992, at 19. In its rationale, the sentencing court considered Hlatky as the perpetrator of the crimes and the criminal acts themselves. See Commonwealth v. Green, 396 Pa. 137, 150, 151 A.2d 241, 247 (1959); Commonwealth v. Wright, supra.

Further, contrary to Hlatky’s assertions, the trial court did not attribute the abuse perpetrated upon Angela by Melody or Augusta Hlatky to Michael Hlatky. Rather, the trial court indicated that the abused, weakened physical condition of the child, including her severe state of dehydration and malnutrition, must have been obvious to Hlatky prior to his assault on the child.

After a thorough review of the sentencing transcript in this case, we conclude that there was no abuse of discretion on the part of sentencing court and we dismiss this claim as merit-less.

Accordingly, based on the foregoing, we affirm the judgment of sentence.

Judgment of Sentence Affirmed.


source: Caselaw Access Project

author: CIRILLO, Judge. McEWEN, Judge,

license: Public Domain

text:
    626 A.2d 584
    Gerald STEINER, Appellant, v. BELL OF PENNSYLVANIA.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1992.
    Filed June 10, 1993.

      Charles J. Klitch, Philadelphia, for appellant.
    Before McEWEN, CIRILLO and BECK, JJ.
   CIRILLO, Judge.

This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting Bell of Pennsylvania’s (Bell) motion for judgment on the pleadings. We affirm.

Appellant Gerald Steiner initiated this suit to recover damages he allegedly sustained when he fell from a ladder during his employment as a line man with Danella Line Services (Danella). Danella was in the business of installing, erecting, maintaining and repairing overhead wires. Bell employed Danella as an independent contractor to install, maintain and repair telephone lines. Steiner was injured on August 1, 1989.

In his complaint, Steiner alleged that his injuries were caused by Danella’s negligence. Steiner further alleged that “The work of Danella for Bell presented a peculiar risk of harm to to employees such as [Steiner] unless special precautions were taken in that the work of Danella includes employees working high off the ground on and about utility poles[,]” and that “Bell should have recognized that the work of Danella was likely to create a peculiar risk of physical harm to others including [Steiner] unless special precautions were taken.”

In its answer, Bell specifically denied that “the work of Danella for Bell presented a peculiar risk of harm to employees such as [Steiner].” Bell averred that “the work performed by [Steiner] did not involve any type of risk which could have been considered different from the usual and ordinary risk associated with the general type of work done.” Bell also specifically denied that it should have recognized that the work of Danella, absent special precautions, was “likely to create a peculiar risk of physical harm to others including [Steiner].” In new matter, Bell averred the following: that Steiner assumed the risk of any and all injuries; that Steiner’s claim was barred or reduced in accordance with the Pennsylvania Comparative Negligence Act; that Steiner’s injuries were caused by his own negligence; and that Steiner’s claim was barred by the statute of limitations.

When reviewing a trial court’s decision granting a motion for judgment on the pleadings, the appellate court’s scope of review is plenary. The appellate court will apply the same standard employed by the trial court: A trial court must confine its consideration to the pleadings and relevant documents. The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted. Koser v. Harleysville Mutual Insurance Co., 407 Pa.Super. 68, 595 A.2d 128 (1991). Further, the court may grant'judgment on the pleadings only where the moving party’s right to succeed is certain and the case is so free from doubt that trial could clearly be a fruitless exercise. Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 215-16, 514 A.2d 576, 578 (1986); Dudash v. Palmyra Borough Authority, 335 Pa.Super. 1, 7, 483 A.2d 924, 927 (1984).

The established law in Pennsylvania provides that an employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. Hader v. Coplay Cement Co, 410 Pa. 139, 150, 189 A.2d 271, 277 (1963); Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 52, 528 A.2d 1355, 1357 (1987), alloc. denied, 517 Pa. 608, 536 A.2d 1332 (1987). See also Restatement (Second) of Torts, §§ 416, 427. One exception to this rule provides that an employer may be liable for the negligence of its employee/independent contractor where the work to be performed by the independent contractor involves a special danger or peculiar risk. In Ortiz, supra, Judge Beck aptly articulated the rationale underlying the exception to the general rule of nonliability:

[A]n employer of the independent contractor ought to anticipate a heightened level of risk where the work is specially dangerous or peculiarly risky. It is reasonable for the employer to take precautions or cause the independent contractor to take precautions to minimize the possibility of injury to others. After all, it is the employer who primarily benefits from the [independent] contractor’s work and the employer who selects the independent contractor. Furthermore, the employer is in a position to make the selection of the independent contractor based on competency. The employer also may demand indemnity from the contractor. Finally, the employer, anticipating the risk, can purchase insurance to cover it.

Id. at 52, 528 A.2d at 1357-58. The Ortiz court provided a workable test to determine whether there exists a special danger or peculiar risk. A special danger or peculiar risk exists where: (1) the risk is foreseeable to the employer of the independent contractor, “i.e., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measures; and (2) the risk is different from the usual and ordinary risk associated with the general type of work done, Le., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary.” Id. at 53, 528 A.2d at 1358.

Our review, as stated above, is limited to the pleadings. The pleadings here consist of a complaint, an answer, and new matter. Where, as here, the defendant is moving for judgment on the pleadings, the averments in its answer must be ignored and the factual allegations in the plaintiffs complaint must be taken as true. Evans v. Marks, 421 Pa. 146, 218 A.2d 802 (1966).

Accepting as true all well pleaded facts in Steiner’s complaint, we find that the trial court did not err in granting Bell’s motion for judgment on the pleadings. Steiner has merely averred in his complaint that the doctrine of special danger or peculiar risk applies to create potential liability in Bell because the “the work of Danella includes employees working high off the ground and on and about utility poles.” Complaint, ¶ 5. Steiner has failed to allege any facts which would establish, or from which it could be inferred, that the overhead wire work which Danella was employed by Bell to perform was “substantially” out of the ordinary risk involved in overhead line work. Working high above the ground and on and about utility poles is normally contemplated in this type of work. The risk of falling from a ladder while high up on a utility pole, see Complaint, ¶¶ 6,10-14, is an ordinary risk associated with the installation, maintenance and repair of overhead wires. Like “industries such as construction where almost every job task involves the potential for injury unless ordinary care is exercised,” peculiar risk situation in overhead line work “should be viewed very narrowly[.]” Ortiz, 365 Pa.Super. at 55, 528 A.2d at 1359. Cf. Lorah v. Luppold Roofing Co., Inc., 424 Pa.Super. 439, 445, 622 A.2d 1383, 1386 (1993) (“the tenor of our law is that the violation of safety conditions alone cannot be the basis for finding that the Peculiar Risk Doctrine applies[;]” these allegations alone could not survive a summary judgment motion); accord Peffer v. Penn 21 Associates, 406 Pa.Super. 460, 594 A.2d 711 (1991) (violation of safety conditions alone is no basis for finding exception to general rule of non-liability of employers of independent contractors).

We conclude that Steiner has failed to aver the “material facts” on which the alleged cause of action against Bell is based. See Pa.R.C.P. 1019(a). Where no relevant issues of fact are raised, the trial becomes an expensive, unnecessary and fruitless exercise, and such cases are appropriate for judgment on the pleadings. DiAndrea v. Reliance Savings & Loan, 310 Pa.Super. 537, 456 A.2d 1066 (1983).

Order affirmed.

McEWEN, J., files a Dissenting Opinion.

McEWEN, Judge,

dissenting.

Since the author of the majority Opinion embraces the benchmark principles established in Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 528 A.2d 1355 (1987), allo. denied Ortiz v. Ra-El Development Corp., 517 Pa. 608, 536 A.2d 1332 (1987), as pronounced by our colleague upon this panel, it behooves mention at the outset that I, too, clasp closely those basic rules. It is the application of those rules to the instant complaint and the resulting judgment on the pleadings that triggers my disagreement.

It has long been a general principle that the employer of an independent contractor is not liable for the physical harm caused to another by an act or omission of the contractor, in this case Danella Line Services. Restatement (Second) of Torts § 409. The Restatement provides in Sections 416 and 427 for exceptions to this general principle when the work poses a “peculiar risk” or a “special danger”. Both the general principle and the exceptions recited by the Restatement have become well-settled law in Pennsylvania, and our esteemed colleague, Judge Phyllis W. Beck, defined those exceptions in precise and certain terms when she declared for this Court that a “special danger” or “peculiar risk” exists where:

the risk is foreseeable to the employer of the independent contractor at the time the contract is executed, ie., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measures; and
the risk is different from the usual and ordinary risk associated with the general type of work done, ie., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary.

Ortiz v. Ra-El Development Corp., supra at 53, 528 A.2d at 1358.

It is undisputed that appellant was an employee of Danella Line Services and that Bell contracted with Danella Line Services to perform line work. It was during the course of that employment that appellant asserts he “was caused to fall from a ladder while high up on a utility pole”. Appellant asserts in his complaint that the work was hazardous and dangerous and that Bell should have realized that the nature of the work created “a peculiar risk of physical harm”.

Simply put, appellant asserted in the complaint that the work he was called upon to perform involved a “peculiar risk” and I am unwilling to dismiss his suit because he did not also plead that the “peculiar risk” was “ ‘substantially’ out of the ordinary risk”. The case had proceeded only through the pleading stage and discovery had not yet commenced when the trial court granted judgment on the pleadings. However usual and ordinary Bell may have viewed the risk associated with the line work for which it hired Danella, or however usual and ordinary the risk of a fall from a ladder in the usual tasks of line work, there was no evidence that enables a judicial conclusion that the particular task which appellant was performing at the time of his fall did not involve the “peculiar risk” which the law requires and appellant pleaded. I simply cannot assume that the work being performed by appellant was the routine effort of a lineman and did not involve, in view of his assertion in the complaint that the work involved a “peculiar risk”, a “substantially out-of-the-ordinary risk”. It may well be that discovery will disclose that the assignment and the duties of appellant at the time of the accident were of the general type of work of a lineman, thereby posing the ordinary risks associated with the job of lineman, but appellant should not, in my view, be foreclosed from an evidentiary demonstration that the task involved circumstances so out of the ordinary that it posed “a peculiar risk of physical harm”.

      . Steiner’s attorney filed of record a suggestion of death, noting that Steiner died on November 23, 1990.

      . The pleadings in an action are limited to “a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.” Pa.R.C.P. 1017.

      . The terms "special danger” or "peculiar risk” are used interchangeably. See Prosser, The Law of Torts § 71, n. 44 (5th ed. 1984). See also Ortiz, 365 Pa.Super. at 52 n. 2, 528 A.2d at 1357 n. 2.


author: KELLY, Judge:

text:
    626 A.2d 588
    C.R., a Minor, By the Guardian of Her Estate, Kathleen D. DUNN, Esquire, Appellees, v. THE TRAVELERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1992.
    Filed June 11, 1993.

      John A. Fitzpatrick, Philadelphia, for appellant.

      Jeffrey S. Lichtman, Philadelphia, for appellee.
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

In this Opinion, we are called upon to determine whether, on the basis of a petition for contempt, a trial court may, without hearing, direct the appellant, the Travelers, to submit another settlement draft to the court-appointed guardian of the estate of the appellee-minor, C.R., by finding that the appellant had acted negligently when it forwarded an earlier settlement draft to the appellee-minor’s mother and guardian, H. R., who allegedly misappropriated the funds, instead of to the appellee-minor’s counsel. We reverse.

The relevant facts and procedural history of this case are as follows. On November 11, 1988, C.R. was struck by an uninsured vehicle and sustained osteopathic injuries that were not life threatening. C.R. and her mother/guardian, H.R., instituted a lawsuit on April 6, 1990 against appellant, The Travelers Insurance Company, which was acting as the servicing agent for the Pennsylvania Financial Responsibility Assigned Claims Plan.

After lengthy negotiations, the parties came to an agreement, settling on a sum of $15,000.00, pending approval of the trial court. C.R., by her natural guardian and through counsel, then filed suit to obtain court approval. The settlement was approved on April 11, 1990 by the Honorable Samuel Lehrer of the Court of Common Pleas of Philadelphia County. The court order approving the settlement agreement set forth the terms of the settlement as follows:

ORDER

AND NOW, to wit this 11th day of April, 1990, upon consideration of the annexed Petition, it is ORDERED that the settlement of this action for the gross sum of Fifteen thousand ($15,000) dollars be and is hereby approved, with distribution to be made as follows:

1. Costs reimbursed to Weinstein, Goss, Katzenstein & Schleifer Associates, P.C.:
a. Costs of litigation: .Thirty seven dollars fifty cents ($37.50).
b. Pennsylvania Department of Transportation-Vehicle Registration Information: Fifteen ($15.00) dollars.
c. City of Philadelphia-Police Accident Report: Five ($5.00) dollars.
d. Albert Einstein Medical Center-Medical Records: Twenty ($20.00) dollars.
TOTAL: Seventy seven dollars fifty cents ($77.50).
2. Pennsylvania Department of Public Welfare Lien: One thousand eight hundred sixty dollars sixty three cents ($1,860.63). Distributed as follows:
a. One thousand two hundred forty dollars forty two cents ($1,240.42) to Pennsylvania Department of Public Welfare.
b. Attorney’s Fee Qk of Welfare Lien): Six hundred twenty dollars twenty one cents ($620.21) to Weinstein, Goss, Katzenstein and Schleifer Associates, P.C.
3. [H.R.], parent and natural guardian of minor [C.R.] in trust for [C.R.], said funds to be placed in a Federally insured account marked “not to be withdrawn until majority of minor or further Order of this Court,” Eight thousand seven hundred seven dollars ninety one cents ($8,707.91).
4. Attorney’s Fee ($ of net recovery of Plaintiff) Four thousand three hundred fifty three dollars ninety six cents ($4,353.96).

The following day, April 12,1990, counsel for appellee-minor forwarded the duly signed Order to the appellant requesting that it forward the appropriate drafts in accordance with the order. On April 18, 1990, appellant promptly issued a check to H.R. in the amount of $8,707.91. This check stated on its face the following words: “to be placed in federal insd acct. not to be.” On May 19, 1990, appellant received a letter from the law firm representing appellees which stated that H.R. had cashed the check and was spending the settlement money. Appellant immediately attempted to stop payment on the check, but was unsuccessful. On February 28, 1991, Kathleen D. Dunn, Esquire, a member of the same law firm that represented C.R. in the personal injury case, was appointed by the Orphans’ Court to be guardian of the estate of C.R. for the purposes of filing suit on behalf of C.R. against the appellant and H.R. in order to retrieve the $8,707.91 which had been awarded to her as a result of the personal injury settlement. A lawsuit was then commenced on C.R.’s behalf by her court-appointed guardian against the appellant to recover $8,707.91.

On February 3, 1992, while the previously filed lawsuit was pending, the court-appointed guardian (the petitioner), filed a petition for contempt on behalf of C.R. against the appellant alleging that the appellant had violated the court order of April 11, 1990 by failing to include the words “not to be withdrawn until majority of minor or further order of this Court” and by mailing the initial settlement check directly to the mother-guardian, rather than to C.R.’s personal injury counsel. The appellant answered that it had fully complied with the clear and unambiguous language of the April 11,1990 order and could not be penalized for its diligent adherence to the exact language contained in the order. At the trial court’s request, the appellees forwarded affidavits from several attorneys and one claims adjuster which stated that in their experience, the usual custom and practice in minor’s compromise cases is for settlement cheeks to be issued in the exact language contained in the court order which approved the settlement. The affidavits also stated that all settlement checks would customarily be sent directly to plaintiffs counsel in accordance with the court’s order. On May 15, 1992, the Honorable Samuel Lehrer entered an order without hearing, instructing the appellant to issue a draft in the amount of $8,707.91 made payable to the petitioner, guardian of the estate of [C.R.]. The order further instructed that the draft was to bear the wording “To be placed in a federally insured account marked ‘Not to be withdrawn until majority of minor or further Order of this Court’ ” and either be mailed or hand delivered to petitioner’s counsel.

In the opinion that accompanied the May 15, 1992 order, Judge Lehrer stated that the appellant’s conduct in dispatching the settlement draft directly to the mother-guardian instead of C.R.’s counsel was clearly negligent. However, Judge Lehrer further stated that negligent conduct cannot be the subject of a contempt proceeding unless the negligence rose to the height of recklessness. Judge Lehrer then stated that he was declining to rule whether appellant’s negligence rose to such a level as to warrant a contempt finding. Rather, he was issuing a new order giving the appellant the opportunity to comply with its terms before holding the appellant in contempt of court. This timely appeal followed.

Regarding our scope of review, we note that our Supreme Court has held that an appellate court has the authority to determine whether the findings of the trial court support its legal conclusions, but may only interfere with those conclusions if they are unreasonable in light of the trial court’s factual findings. Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988). In the case of In re J.W., 396 Pa.Super. 379, 578 A.2d 952 (1990), this Court stated:

Though we are not bound by the trial court’s inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court’s sustainable findings. See In re Adoption of J.J., 511 Pa. 590, 592-95, 515 A.2d 883, 885-86 (1986); In re G.D.G., 392 Pa.Super. 575, 577, 573 A.2d 612, 613 (1990); cf. Karis v. Karis, supra, 544 A.2d 1328, 1332 (a similarly worded standard applies in custody appeals).

Id. 396 Pa.Super. at 387, 578 A.2d at 957. This Court has also held that we are not bound by the trial court’s conclusions of law and we may draw our own conclusions from the facts as established. See Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 595 A.2d 1211 (1991). It is well-settled that this Court will not reverse or modify a final decree unless there has been an error of law, an abuse of discretion, or if the findings are not supported by the record, or there has been a capricious disbelief of the credible evidence. Incollingo v. McCarron, 416 Pa.Super. 419, 611 A.2d 287 (1992); Miller v. Mifflin County Industrial Development Authority, 319 Pa.Super. 188, 465 A.2d 1293 (1983).

On appeal, the appellant contends that the trial court exceeded its authority and committed an error of law by entering an order in a contempt action which directed the appellant to issue a second settlement draft when it did not find the appellant to be in contempt of its initial order. The appellant argues that the sole issue before the trial court in a contempt action is the alleged contemnor’s compliance or non-compliance with the trial court’s order and absent a finding of noncompliance, a party may not be subjected to sanctions. Thus, the appellant asserts that the trial court erred in directing the appellant to issue a second settlement draft upon the trial court’s determination that the appellant had not acted in contempt of the initial order, but rather negligently in forwarding the first settlement draft directly to the appelleeminor’s mother and guardian instead of to her counsel. We agree.

Contempt of court may be civil or criminal. Schnabel Associates Inc. v. Building and Const. Trades Council of Philadelphia and Vicinity, AFL-CIO, 338 Pa.Super. 376, 487 A.2d 1327 (1985). The controlling factor in drawing a line between civil and criminal contempt is the dominant purpose and objective of the court’s order. Neshaminy Water Resources Authority v. Del-Aware Unlimited Inc., 332 Pa.Super. 461, 481 A.2d 879 (1984). Civil contempt has as its dominant purpose the enforcement of compliance with an order of the court, for the benefit of the party in whose favor the order runs, and the contemnor may purge himself of civil contempt by complying with the order. Wetzel v. Suchanek, 373 Pa.Super. 458, 541 A.2d 761 (1988).

The objective of a civil contempt proceeding is remedial and judicial sanctions are employed to coerce the defendant into compliance with the court’s order, and in some instances to compensate the complainant for loss sustained. Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956). In civil contempt cases, the complaining party has the burden of proving non-compliance with the court order by a preponderance of the evidence. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); In re Grand Jury, April Term 1977 Wayne County, 251 Pa.Super. 43, 379 A.2d 323 (1977). To be punished for civil contempt, a party must have violated a court order. Woods v. Peckich, 463 Pa. 274, 344 A.2d 828 (1975); Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1969). The order that forms the basis for the contempt process in civil proceedings must be definitely and strictly construed. Carborundum Co. v. Combustion Engineering Inc., 263 Pa.Super. 1, 396 A.2d 1346 (1979). Any ambiguity or omission in the order forming the basis for the civil contempt proceeding must be construed in favor of the defendant. Id. Where the order is contradictory or the specific terms of the order have not been violated, there is no contempt. In re Capuzzi’s Estate, 298 Pa. 71, 148 A. 48 (1929); see also Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976).

In her petition for contempt on C.R.’s behalf, the petitioner alleged two bases for finding the appellant to be in contempt of the April 11, 1990 order. The first basis was the appellant’s failure to include the words “not to be withdrawn until majority of minor or further order of this court.” Our examination of the copy of the tendered settlement draft reveals that while the appellant included the words “To Be Placed In Federally Insd Acct Not To Be,” the appellant failed to include the words of limitation which would have prohibited the withdrawal of the settlement funds until either C.R. reached the age of majority or the trial court permitted them to be withdrawn. However, our review of the exact wording of the April 11, 1990 order reveals that the order did not contain an instruction to the appellant that any wording was to be included on the settlement draft. Rather, the exact wording of the order contained an instruction to H.R. that the settlement funds were to be placed in a federally insured account marked “not to be withdrawn until majority of minor or further Order of this Court.” Thus, the appellant’s failure to place such wording on the face of the settlement draft could not have been contemptuous as it was not compelled by the exact wording of the order to place any limiting instructions on the face of C.R.’s settlement draft. Therefore, a contempt finding could not and was not premised upon the appellant’s failure to place such language on the face of C.R.’s settlement draft.

Although absent a specific instruction in the order that the appellant was to include on the face of the settlement draft language restricting the access to the settlement funds until either the minor reaches the age of majority or prior approval of the court is obtained, appellant could not be held in contempt, we do note that 42 Pa.R.Civ.P. 2039(b)(2), while not compelling trial courts to explicitly state in their orders that this restrictive language must be placed on the face of a settlement draft, does require this restrictive language to be part of any order authorizing the settlement of a minor’s claim. We further note that 42 Pa.R.Civ.P. 2039(b)(2) requires compliance with this mandate to be filed of record. However, because in a contempt action we are merely concerned with the issue of whether the appellant has complied with the specific terms of the order which is the subject of the contempt action, see In re Capuzzi’s Estate, supra, we are not permitted to decide whether appellant was negligent for failing to place such language on the face of the settlement draft. The resolution of this issue must be determined in' the other action which is currently pending between the parties.

The second basis set forth in the contempt petition for finding the appellant to be in contempt of the order was that the appellant delivered the settlement draft containing C.R.’s share of the settlement proceeds directly to C.R.’s mother and guardian, H.R., instead of to her counsel. Our review of the specific terms of the order reveals that it did not mandate that the appellant was to deliver the settlement draft of C.R.’s share of the settlement proceeds to her counsel. In fact, the order’s specific terms contained no provision at all for the delivery of C.R.’s share of the settlement proceeds. Therefore, on April 12,1990, when C.R.’s counsel sent the appellant a letter with a copy of the order instructing it to forward the appropriate drafts in accordance with the order, the appellant was left to its own devices as to how to accomplish the delivery of C.R.’s share of the settlement proceeds. The appellant chose to send C.R.’s share of the settlement proceeds directly to H.R. instead of C.R.’s counsel. While the appellant’s decision to send C.R.’s share of the settlement proceeds directly to H.R., instead of C.R.’s counsel, may or may not have been contrary to the established custom for distributing the proceeds in a minor’s compromise settlement, it was not in contravention of the specific terms of the order. Therefore, the direct delivery of C.R.’s share of the settlement proceeds to H.R. cannot serve as a basis for holding the appellant in contempt of the order. Thus, a contempt finding could not be premised upon the appellant’s failure to deliver the settlement draft containing C.R.’s share of the settlement proceeds to her counsel.

The trial court, while not holding that the appellant’s direct delivery of C.R.’s share of the settlement proceeds to H.R., instead of C.R.’s counsel, was contemptuous, did determine that this action was negligent. The trial court then proceeded to use its negligence finding as a means to correct the flaws and ambiguities that had been contained in its original order by issuing a new order. In this new order, the trial court directed the appellant to issue another draft in the amount of $8,707.91, made payable to the court-appointed guardian of C.R.’s estate. This new order also instructed that the second settlement draft was to bear the words “To be placed in a federally insured account marked ‘Not to be withdrawn until majority of minor or further Order of this Court.’ ” Finally, the new order mandated that the second settlement draft either be mailed or hand delivered to C.R.’s counsel.

As stated earlier, the objective of a civil contempt proceeding is remedial and judicial sanctions are employed to coerce the defendant into compliance with the court’s order. Knaus v. Knaus, supra. Any ambiguity or omission in the order forming the basis for the civil contempt proceeding must be construed in favor of the defendant. Carborundum v. Combustion Engineering Inc., supra. Where the order’s specific terms have not been violated, there is no contempt. In re Capuzzi’s Estate, supra.

Instantly, due to the silence of the order, no contempt finding could be warranted upon the premises that the appellant had acted in contravention of the trial court’s order by sending C.R.’s share of the settlement proceeds directly to H.R. instead of to C.R.’s counsel. However, based upon its determination that the appellant had acted negligently, the trial court sanctioned the appellant all the same by entering a new order requiring the appellant to submit another draft for C.R.’s share of the settlement proceeds after the appellant had already fully complied with all of the specific terms of the trial court’s original order. The trial court also utilized its negligence finding as a means to correct the flaws and omissions contained in its original order by directing the appellant to place on the face of the second settlement draft the wording “To be placed in a federally insured account marked ‘Not to be withdrawn until majority of minor or further Order of this Court’ ” and by making explicit instructions that the second settlement draft be delivered to C.R.’s counsel.

This course of action by the trial court was impermissible in an action for contempt where the sole purpose is to determine whether the alleged contemnor has complied or failed to comply with the trial court’s order. A contempt petition may not be utilized by a trial court as means to correct flaws or omissions contained in the order which is the subject of the contempt petition.

As our review indicates, there is no question that the appellant complied with the specific terms of the trial court’s original order. Thus, the trial court erred in entering a new order which corrected the flaws and omissions contained in the original order and directing the appellant to submit another draft for C.R.’s share of the settlement proceeds in compliance with this new order or be held in contempt. Therefore, this new order is reversed. Accordingly, the issues of whether the appellant acted negligently by failing to include restrictive language concerning the disposition of C.R.’s share of the settlement proceeds on the face of the draft and whether the appellant acted negligently in forwarding the draft containing C.R.’s share of the settlement proceeds to H.R. rather than to C.R.’s counsel must await resolution in the other lawsuit currently pending between the parties.

Based upon the foregoing, the order of the' trial court is reversed.

Order reversed.

      . The Pennsylvania Financial Responsibility Assigned Claims Plan was established to give victims some recourse when injured by uninsured vehicles. See 75 Pa.C.S.A. § 1752 and § 1753.

      . 42 Pa.R.Civ.P. 2039(a) provides that:
      (a) No action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor.

      . 42 Pa.R.Civ.P. 2039(b)(2)
      (2) any amount in cash of a resident or non-resident minor to be deposited in one or more savings accounts in the name of the minor in banks, building and loan associations or savings and loan associations, deposits in which are insured by a Federal governmental agency, provided that the amount deposited in any one such savings institution shall not exceed the amount to which accounts are thus insured. Every such order shall contain a provision that no withdrawal can be made from any such account until the minor attains his majority, except as authorized by a prior order of the court. Proof of the deposit shall be promptly filed of record.


author: HOFFMAN, Judge:

text:
    626 A.2d 595
    Sarah A. KRYESKI and Ronald A. Kryeski, Her Husband, Appellants, v. SCHOTT GLASS TECHNOLOGIES, INC. a Corporation.
    Superior Court of Pennsylvania.
    Argued March 10, 1993.
    Filed June 14, 1993.

      Ruth S. Borland, Wilkes-Barre, for appellants.
    John J. Myers, Pittsburgh, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the September 15, 1992 order granting appellee Schott Glass Technologies’ motion for summary judgment and dismissing all counts of appellants’, Sarah Kryeski and Ronald Kryeski, complaint. Appellants present the following six issues for our review:

A. DID THE COURT BELOW ERR IN FINDING THAT THE PLEADINGS AND THE EVIDENCE OF RECORD FAILED TO INDICATE THAT A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER MS. KRYESKI WAS DISCRIMINATED AGAINST BASED ON HER SEX?
B. DID THE COURT BELOW ERR IN FAILING TO FIND THAT THE APPELLEE EMPLOYER COULD BE HELD LIABLE FOR THE TORTIOUS ACTS OF THE EMPLOYEE DIRECTED AT MS. KRYESKI, UNDER THE THIRD PARTY ATTACK EXCEPTION OF THE WORKERS’ COMPENSATION ACT?
C. DID THE COURT BELOW ERR IN FINDING THAT THE SEXUAL HARASSMENT AND RETALIATORY BEHAVIOR BY THE APPELLEE EMPLOYER WERE NOT SUFFICIENTLY OUTRAGEOUS CONDUCT AS A MATTER OF LAW TO SUPPORT MS. KRYESKI’S CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS?
D. DID THE COURT BELOW ERR IN FINDING THAT MS. KRYESKI’S ALLEGATIONS OF LIBEL AND SLANDER ATTRIBUTED TO THE APPELLEE EMPLOYER (COUNT IV OF COMPLAINT) IN WHICH MS. KRYESKI WAS LABELED AS “CRAZY AND EMOTIONALLY UNSTABLE” WERE INCAPABLE OF BEARING A DEFAMATORY MEANING?
E. DID THE COURT BELOW ERR IN FINDING THAT MS. KRYESKI HAS FAILED TO DEMONSTRATE THE ELEMENT OF PUBLICITY IN HER CLAIM OF INVASION OF PRIVACY?
F. DID THE COURT BELOW ERR IN GRANTING SUMMARY JUDGMENT REGARDING RONALD KRYE SKI’S CLAIM FOR LOSS OF CONSORTIUM IN LIGHT OF THE VALIDITY OF SARAH KRYESKI’S CLAIMS OF PERSONAL INJURY, SEVERE EMOTIONAL DISTRESS, LIBEL AND SLANDER, AND INVASION OF PRIVACY?

Appellants’ Brief at 3. for the following reasons, we affirm.

The present action arose as a result of several experiences at appellant Sarah Kryeski’s workplace. The incidents involved an unsolicited sexual advance from Dr. Alex Marker, appellant’s laboratory supervisor; an affair between appellant’s co-worker Christine Yordy and Robert Scheller, appellant’s immediate supervisor; and derogatory comments made by Christine Yordy about appellant.

On June 19, 1989, appellant filed a complaint with the Pennsylvania Human Relations Commission. On September 15, 1989, the Commission held a fact-finding conference, but no subsequent action was taken. On February 8, 1991, appellants filed an eight-count complaint against appellee alleging sexual harassment and discrimination, personal injury, intentional infliction of emotional distress, conspiracy, libel and slander, invasion of privacy, and loss of consortium and seeking punitive damages. On January 18, 1991, the trial court granted appellee’s preliminary objections in the nature of a demurrer to appellants’ civil conspiracy count and appellee’s motion for a more specific pleading as to appellants’ libel and slander count. In accordance with the court’s order, appellants filed an amended six-count complaint. On April 30, 1991 and June 14, 1991, appellee deposed appellant Sarah Kryeski. On March 12, 1992, appellee filed a motion for summary judgment as to all six counts of appellants’ complaint. The trial court granted summary judgment as to all counts on September 15, 1992. This timely appeal followed.

Our standard of review of an order granting summary judgment is well-settled. Summary judgment may be properly entered only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035(b).

The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak, 371 Pa.Super. 443, 445, 538 A.2d 524, 525, allocatur denied, 522 Pa. 584, 559 A.2d 527 (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-41, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Garcia v. Savage, 402 Pa.Super. 324, 328, 586 A.2d 1375, 1377 (1991) (citing Laventhol & Horwath v. Dependable Insurance Associates, Inc., 396 Pa.Super. 553, 558, 579 A.2d 388, 390 (1990)). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988). With these principles in mind, we proceed to examine whether summary judgment was properly granted.

/.

Appellants first assert that the trial court erred in granting summary judgment on the claim for sexual discrimination. Appellants contend that appellee engaged in actions in violation of the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. They claim that they have presented evidence of a discriminatory and “sexually hostile” work environment. This claim is meritless.

“A prima facie case of discrimination under PHRA is established by proving that the complainant is a member of a protected class, has suffered adverse employment action, and that others not in the class have been treated differently.” Burns Intern. Sec. v. Hum. Rel. Com’n, 119 Pa.Commw. 418, 423, 547 A.2d 818, 820 (1988). Appellants’ discrimination claim is twofold.

First, appellant Sarah Kryeski contends that she was discriminated against with respect to the terms and conditions of her employment based on her refusal to accede to sexual advances made by her supervisor, Dr. Marker, at a party in July, 1987. After reviewing this claim in the context of appellant’s deposition testimony, we find no issue of material fact that would warrant further proceedings. At her deposition, appellant admitted that “[she and Dr. Marker] spoke about it at work, but I never felt he held it against me.” N.T. 4/30/91 at 48. She stated that during a later conversation with Dr. Marker, she told him that “I know what he had tried, and I admired that he never did anything like that or tried anything like that at work.” N.T. at 56. She admitted that since July 10,1987, Dr. Marker had not touched her or made a sexual advance and that she and Dr. Marker had no problems working together. N.T. at 57. Thus, Ms. Kryeski has not demonstrated that a genuine issue exists that she suffered retaliation for her refusing sexual advances of Dr. Marker.

As a second basis for her discrimination claim, appellant asserts that she was discriminated against because of favoritism displayed toward her co-worker whom appellant alleges was having an affair with a supervisor. This allegation alone, however, does not give rise to a claim for gender discrimination. No Pennsylvania state court has yet reviewed a so-called “paramour” sex discrimination allegation. However, the subject has been discussed in the federal courts, and Pennsylvania courts may look to Title VII precedents in interpreting the Pennsylvania statute. Chmill v. City of Pittsburgh, 488 Pa. 470, 491, 412 A.2d 860, 871 (1980) (“Human Relations Act should be construed in light of ‘principles of fair employment law which have emerged relative to the federal [statute]’ ”) (citation omitted)). Accordingly, we will examine the relevant case law.

In Miller v. Aluminum Co. of America, 679 F.Supp. 495 (W.D.Pa.1988), aff'd, 856 F.2d 184 (3d Cir.1988), the plaintiff brought an action similar to the instant one. Miller claimed that her supervisor discriminated against her on the basis of sex by showing favoritism toward another technician, Ms. Hollihan, who was having an affair with the plant manager. Miller did not assert that any of her supervisors conditioned employment benefits on her submission to sexual advances. The district court, following the lead of the Court of Appeals for the Second Circuit, held that “[a]s a matter of law, these assertions do not state a Title VII claim---- [Preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination.” Id. at 501. The court reasoned that to hold otherwise would underestimate the essential element of disparate treatment based on gender as “male employees in Miller’s workplace shared with her the same disadvantage relative to Ms. Hollihan.” Id. See also Candelore v. Clark County Sanitation Dist., 752 F.Supp. 956, 959-61 (D.Nev.1990), aff'd, 975 F.2d 588 (9th Cir.1992) (claims of preferential treatment of paramour and harassment for complaining of such treatment not actionable; “preferential treatment of a paramour, while perhaps unfair, is not discrimination on the basis of sex”). Cf. Erickson v. Marsh & McLennan, 117 N.J. 539, 569 A.2d 793 (1990) (in reverse discrimination case, claim that male employee was discharged so that his supervisor’s paramour could be promoted combined with single incident of replacing male coworker with female was insufficient to state claim under New Jersey Law Against Discrimination; consensual, non-coercive relationship between co-worker and supervisor alone does not give rise to hostile environment sexual harassment claim).

Appellants, nonetheless, rely on Drinkwater v. Union Carbon Corporation, 904 F.2d 853 (3d Cir.1990) for the proposition that an office relationship may create a hostile atmosphere giving rise to a cause of action for gender discrimination. Appellants’ reliance is misplaced. The Drinkwater court suggested that a plaintiff may be able to show that the consensual relationship created “an oppressive and intolerable environment” which discriminates against women. However, the court found no cause of action in the case before it as there was no evidence that the individuals “flaunted the romantic nature of their relationship ... or that these kinds of relationships were prevalent at [Union Carbon.]” Id. at 862. Thus, the court concluded that the plaintiffs sexual harassment claim based on the existence of a hostile environment could not survive. Similarly, appellants have not demonstrated that such relationships were prevalent at Schott Glass Technologies as Ms. Kryeski has testified that she is aware of only the Yordy-Scheller affair and has done no more than make remote references to the effect of that relationship on the environment at Schott Glass Technologies. See Drinkwater at 861. Accordingly, there is insufficient evidence for appellants to survive summary judgment on the count for sex discrimination.

II.

Appellants next contend that the trial court erred in failing to find that appellee could be held liable for the tortious acts of its employee directed at appellant under the “third party attack” exception of the Workers Compensation Act. We disagree.

The “third party attack” exception of 77 P.S. § 411(1) provides that: “The term ‘injury arising in the course of his employment’ ... shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment.” When the “third party attack” exception applies, “the employee is permitted to maintain a common-law action against his employer ...” Brooks v. Marriott Corp., 361 Pa.Super. 350, 356, 522 A.2d 618, 621 (1987) (citing McBride v. Hershey Choc. Corp., 200 Pa.Super. 347, 188 A.2d 775 (1963); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980)).

In granting summary judgment, the trial court preliminarily accepted appellants’ argument that the “third party attack” exception of the Workers Compensation Act applied because the conduct of appellee’s employees was outside the scope of their employment. However, the court then determined that appellee could not be held liable for the personal injury claim under appellants’ proposed theory of respondeat superior.

Appellants do not challenge the trial court’s conclusion that they could not succeed under a theory of respondeat superior. Instead, appellants assert that appellee is directly liable for its negligence in failing to take precautions necessary to prevent foreseeable harm by a third party rather than vicariously liable for the actions of its servant under the respondeat superior theory discussed by the trial court. However, this is the first time that appellants have raised the issue of appellee’s direct negligence. Prior to this appeal, appellants have proceeded solely under the theory of respondeat superior. See Plaintiffs Brief in Opposition to The Defendant’s Motion for Summary Judgment, at 6; Complaint ¶¶ 75, 78. Matters raised for the first time on appeal are not properly preserved for appellate review and will not be considered. See, e.g., Commonwealth v. National Fed. of the Blind, 471 Pa. 529, 536, 370 A.2d 732, 736 (1977); Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384, 333 A.2d 777, 779 (1975) (“It is a fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court.”). As appellant did not present the issue of direct negligence to the trial court, that issue is waived.

III.

Appellants next contend that the trial court erred in finding that the sexual harassment and retaliatory behavior by appellee were not sufficiently outrageous conduct as a matter of law to support appellants’ claim of intentional infliction of emotional distress. This claim is meritless.

In order to sustain a claim for intentional infliction of emotional distress, the plaintiff must demonstrate that by extreme and outrageous conduct, the defendant intentionally or recklessly caused the plaintiff severe emotional distress. Motheral v. Burkhart, 400 Pa.Super. 408, 422, 583 A.2d 1180, 1188 (1990); Strain v. Ferroni, 405 Pa.Super. 349, 359, 592 A.2d 698, 703 (1991). “ ‘[I]t is extremely rare to find conduct in the employment context that will give rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.’ ” Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990) (quoting Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d Cir.1988)). The general rule is that “sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action---- ‘[T]he only instances in which courts applying Pennsylvania law have found conduct outrageous in the employment context is where an employer engaged in both sexual harassment and other retaliatory behavior against an employee.’” Id. (quoting Cox).

In this case, although appellant Sarah Kryeski states in her brief that she suffered retaliation for refusing Dr. Marker’s sexual advances, her own sworn testimony directly refutes this. As we pointed out earlier, appellant admitted that she never felt that Dr. Marker “held it against [her].” N.T. 4/30/91 at 48. Significantly, she also admitted that since July 10, 1987, Dr. Marker had not touched her or made a sexual advance and that she and Dr. Marker had no problems working together. N.T. at 57. As there is no issue of material fact regarding whether there was any retaliation on the part of Dr. Marker against Ms. Kryeski, the trial court did not err in granting summary judgment in favor of appellee on appellant’s claim for intentional infliction of emotional distress.

IV.

Appellants next contend that the trial court erred in finding that the statement forming the basis of appellants’ defamation count is incapable of bearing a defamatory meaning. This claim also lacks merit.

The basis of appellants’ defamation claim is a statement purportedly made by Ms. Yordy to a co-worker of appellant. Appellant Sarah Kryeski testified that Helen Yuhas told her that Ms. Yordy had stated to either Helen Yuhas or Helen Yuhas’s husband, friends of appellant, that appellant was crazy and emotionally unstable. N.T. 4/30/91 at 138, N.T. 6/14/91 at 104.

To' state a cause of action for defamation, a plaintiff has the burden of proving (1) the defamatory character of the communication, (2) its publication by the defendant, (3) its application to plaintiff, (4) the understanding by the recipient of its defamatory meaning, (5) the understanding by the recipient of it as intended to be applied to the plaintiff, (6) special harm resulting to the plaintiff from its publication, and (7) abuse of any conditional privilege. 42 Pa.C.S. § 8343. Whether the challenged statements are capable of having a defamatory meaning is a question of law for the court to determine in the first instance. Cashdollar v. Mercy Hosp. of Pittsburgh, 406 Pa.Super. 606, 616, 595 A.2d 70, 75 (1991); Zartman v. Lehigh County Humane Soc., 333 Pa.Super. 245, 250, 482 A.2d 266, 268 (1984). “A statement is defamatory if it tends to harm an individual’s reputation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him.” Zartman.

Pennsylvania courts have held that certain types of communications, although undoubtedly offensive to the subject, do not rise to the level of defamation. For example, expressions of opinion are not actionable. Baker v. Lafayette College, 350 Pa.Super. 68, 78, 504 A.2d 247, 252 (1986), aff'd, 516 Pa. 291, 532 A.2d 399 (1987). Likewise, statements which are merely annoying or embarrassing or “ ‘no more than rhetorical hyperbole’ ” or “ ‘a vigorous epithet’ ” are not defamatory. Redding v. Carlton, 223 Pa.Super. 136, 139, 296 A.2d 880, 881 (1972) (citations omitted). See also Savitsky v. Shenandoah Valley Pub., 389 Pa.Super. 176, 183, 566 A.2d 901, 905 (1989); W. Prosser & W. Keeton, The Law of Torts § 111, at 776 (4th ed. 1984) (“A certain amount of vulgar name-calling is tolerated, on the theory that it will necessarily be understood to amount to nothing more.”).

We find no error in the trial court’s conclusion that the alleged statements by one employee to another that appellant was “crazy” were not defamatory. Similar statements have been found not to rise to the level of defamation. See, e.g., Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314 (W.D.Pa.1974) (use of words “paranoid” and “schizophrenic” not defamatory where plaintiff failed to meet burden of proving that the words referred to actual psychological infliction); Pease v. International Union of Operating Engineers Local 150, 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614 (1991) (statement to press concerning the plaintiff: “He’s dealing with half a deck, did you know that? I think he’s crazy.”; court stated: “Words that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactionable”); Bratt v. International Business Machines Corp., 392 Mass. 508, 467 N.E.2d 126 (1984) (courts have refused to hold defamatory on its face or defamatory at all an imputation of mental disorder which is made in an oblique or hyperbolic manner); McGowen v. Prentice, 341 So.2d 55 (La.App.1976) (school principal stated to the plaintiff, a teacher, in reference to a second teacher whose conduct the plaintiff had been defending, “that’s why you understand her so well, because you all are both nuts” was not actionable; “casual remarks made in informal conversation, even if they include unflattering words, do not constitute actionable defamation”).

In the instant case, the statement made by Ms. Yordy was not meant in the literal sense. It was no more than “a vigorous epithet” in response to Ms. Kryeski’s accusations about Ms. Yordy’s affair and her promotions. Moreover, as stated earlier, a necessary factor in establishing defamation is the understanding by the recipient of its defamatory meaning. Appellant conceded that the Yuhases did not treat appellant any differently after hearing the statement about appellant and that Mrs. Yuhas indicated that she knew appellant was not crazy. N.T. 6/14/91 at 105, N.T. 4/30/91 at 139. Accordingly, the trial court did not err in granting summary judgment on appellants’ claim for defamation.

V.

Appellants’ claim for invasion for privacy is also premised on the statements made by Ms. Yordy to the Yuhases that Sarah Kryeski is “crazy” and “emotionally unstable.” Appellants contend that the trial court erred in finding that Ms. Kryeski failed to demonstrate the element of publicity in her claim for invasion of privacy. We disagree.

A necessary element of the tort of invasion of privacy is that false information be given “publicity.” Neish v. Beaver Newspapers, Inc., 398 Pa.Super. 588, 598, 581 A.2d 619, 624 (1990); Curran v. Children’s Service Center of Wyoming County, 396 Pa.Super. 29, 38, 578 A.2d 8, 12 (1990); Restatement (Second) of Torts § 652E. “Publicity” for these purposes “ ‘means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.’ ” Curran (quoting Restatement (Second) of Torts § 625E, comment b).

Appellants fall far short of showing the required element of publicity. Appellants have not provided any factual basis that would allow us to conclude that Ms. Yordy made derogatory statements about Mrs. Kryeski to anyone other than the Yuhases. In fact, they concede that Ms. Kryeski only heard about the statements from Ms. Yuhas. Accordingly, the trial court properly dismissed the claim for invasion of privacy.

VI.

Finally, appellants argue that the trial court erred in granting summary judgment regarding Ronald Kryeski’s claim for loss of consortium. In light of our affirmance of the previous issues, appellants cannot succeed on the derivative claim for loss of consortium. See Scattaregia v. Shin Shen Wu, 343 Pa.Super. 452, 455, 495 A.2d 552, 554 (1985) (loss of consortium action is derivative, its success is dependent upon injured spouse’s right to recover).

For the foregoing reasons, we affirm the order granting summary judgment.

Affirmed.

      . Appellants contend that Miller and Erickson are inapplicable to the instant situation because in those "paramour” cases, the plaintiffs did not allege that any of their supervisors conditioned employment benefits on their submission to sexual advances. However, as discussed previously, appellants do not demonstrate that Ms. Kryeski’s supervisors conditioned her employment on her submission to sexual advanees.

      . Appellants, nevertheless, claim that they have demonstrated publicity because Ms. Kryeski testified that Ms. Yordy acted as the "godmother” or "parly mother” to many new employees at Schott Glass and these employees would not speak to Mrs. Kryeski. Appellants ask us to infer publicity from this behavior. However, the law requires more than this type of unsubstantiated allegation.


author: JOHNSON, Judge.

text:
    626 A.2d 602
    ESTATE OF Deborah Norris RUSH, Deceased. Appeal of Lockwood RUSH, Executor and Accountant of the Estate of Deborah Norris Rush, Deceased, Appellant.
    Superior Court of Pennsylvania.
    Argued April 15, 1993.
    Filed June 14, 1993.

      Alfred A. Gollatz, West Chester, for appellant.
    Louis C. Washburn, Philadelphia, for Jonathan Rush, participating party.
    Before CAVANAUGH, BECK and JOHNSON, JJ.
   JOHNSON, Judge.

Lockwood Rush, accountant and executor for the estate of his mother, Deborah Norris Rush (Testatrix), appeals from the order providing for final distribution of the Rush Estate. We affirm.

On October 23, 1991, Lockwood Rush filed the First and Final Account of his administration of the Rush Estate, along with a Petition for Adjudication and Statement of Proposed Distribution. The Proposed Distribution would have awarded the residue of the Testatrix’ estate to Lockwood and his sole surviving brother Stockton Rush. Jonathan Rush, only son of the Testatrix’ predeceased son John, filed an Objection to the Proposed Distribution, seeking a one-third distribution of the residuary estate and the payment of his attorney’s fees. Following a hearing, the trial court entered an Adjudication awarding Jonathan one-third of the residuary estate but denying his claim for attorney’s fees. Each party filed exceptions to the Adjudication, which were briefed and argued before the trial court. The trial court then issued its Order and Opinion, upholding its previous distribution scheme and ordering each side to pay its own attorney’s fees. This appeal followed.

Our standard of review in a will contest is limited to determining whether the trial court’s findings of fact are supported by sufficient evidence and whether the trial court committed an error of law or an abuse of discretion. In re Estate of Dex, 408 Pa.Super. 391, 596 A.2d 1143 (1991); In re Estate of Simpson, 407 Pa.Super. 1, 595 A.2d 94, appeal denied, 529 Pa. 622, 600 A.2d 538 (1991).

The issue in dispute in the present case is the interpretation of Article IV B of the Testatrix’ will which awards the residue of her estate. That section states:

IV. Residuary Estate: I give:
B. The balance of the residue of my estate, real and personal, in equal shares to such of my sons as survive me by thirty days; provided that if a son does not so survive me but leaves descendants who survive me, such descendants shall receive, per stirpes, the share that son would have received had he so survived me.

All parties to this litigation agree that the above provision of the Testatrix’ Will is unambiguous and requires no introduction of extrinsic evidence in order for the court to interpret its meaning, as a matter of law. See, e.g., In re Estate of Kelly, 473 Pa. 48, 373 A.2d 744 (1977). The parties disagree, however, on the meaning which should be attributed to Article IV B.

Lockwood contends that the clause creates a class of beneficiaries consisting only of the Testatrix’ sons who could have survived her by thirty days. He maintains that since John Rush, Jonathan’s father, had predeceased the Testatrix at the time of the drafting of the Will, he could not be included as a member of the class of intended beneficiaries under the residuary clause. Lockwood further alleges that the proviso which allows recovery for the descendents of a son who doesn’t survive for thirty days after the Testatrix’ death, only applies to the issue of those sons who were living at the time of the Will’s drafting and could have potentially outlived the Testatrix for thirty days. Lockwood interprets the proviso in Article IV B as merely an articulation of Pennsylvania’s anti-lapse statute, 20 Pa.C.S. § 2514(9).

To support these contentions, Lockwood looks to Article I of the Will which gives all of the Testatrix’ personal property to “such of my sons as survive me by thirty days.” All parties, as well as the trial court, agreed that the Testatrix’ predeceased son John was not a legatee under this provision of the Will. They also concur that the anti-lapse statute, 20 Pa.C.S. § 2514(9), if applied to Article I, would only preserve that portion of the estate for the issue of Lockwood and Stockton, the Testatrix’ two surviving sons. However, the trial court, when considering Lockwood’s argument, concluded that the additional language in Article IV B was indicia of the Testatrix’ intent to produce a different result for the distribution of the residue of her estate, than was intended for Article I. We agree.

When interpreting a will, every word and clause in a will must be given effect if reasonably possible, and the court cannot ignore language of the testatrix, except where the language of the entire will demonstrates that the language in question was inadvertently used and did not express the testatrix’ true intent. Estate of McKenna, 340 Pa.Super. 105, 489 A.2d 862 (1985). A will must be read to give effect to every portion of it, so as not to render any provision nugatory and futile. Estate of Williams by Lorgan v. Williams, 357 Pa.Super. 476, 516 A.2d 359 (1986). To ascertain testamentary intent, the court must focus first and foremost on the precise wording of the will, and resort to canons of construction only if the language is ambiguous or conflicts with the testator’s intent. In re Estate of Wainwright, 417 Pa.Super. 335, 612 A.2d 509 (1992).

The trial court, in giving effect to the provision in Article IV B which provided for a per stirpes recovery by the children of any predeceased son, was clearly in conformance with the precedent in this Commonwealth regarding the interpretation of wills. Here, there was no allegation or suggestion, after an examination of the four corners of the Will, that the language used in Article IV B did not express the true intent of the Testatrix. If the trial court accepted Lockwood’s reasoning that Article I and Article IV B included the same class of beneficiaries, the additional clause in Article IV B would be rendered meaningless.

Lockwood further contends, citing McCarty’s Estate, 138 Pa.Super. 415, 10 A.2d 790 (1940), that since his brother John was deceased at the time of the drafting of the Will, his offspring must, as a matter of law, be excluded from recovering under the language of the residuary clause. In McCarty’s Estate, this Court addressed whether the children of the testator’s son, who died eighteen years prior to the execution of the will, were legatees under the residuary clause. That clause stated: “all the rest, residue and remainder of my estate I give and bequeath to my children in equal shares absolutely, the child or children of any deceased child to take its parent’s share.” Id. at 416, 10 A.2d at 791. In McCarty’s Estate, this Court held that the class of legatees intended under the residuary clause only included the testator’s children who were living at the time of the drafting of the will. Consequently, as the testator’s predeceased son was not a primary legatee under the will, his children were not entitled to take a share of the residue of the estate. Id. at 420, 10 A.2d at 792.

While the facts of the present case closely parallel those of McCarty’s Estate, the interpretation, by our supreme court, of such residuary clauses has changed and developed in this Commonwealth since 1940. In In re Estate of Schappell, 424 Pa. 390, 227 A.2d 651 (1967), our supreme court addressed the identical issue as is now before us. There, the child of the testator’s predeceased daughter claimed a share in the residue of the estate. In that case, as in the present case, the testator’s predeceased child had died prior to the drafting of the 'will. The residuary clause in Schappell stated:

ITEM 2: As to the rest residue and remainder of my estate, either real, personal or mixed, I give, devise, and bequeath to my dear wife Stella J. Schappell, however should my wife Stella J. Schappell predecease me in death I then give, devise, and bequeath the same to my children, same to be divided equally share and share alike, and if any of my children shall predecease me in death, his or her share shall be divided equally amongst their issue.

Id. at 391, 227 A.2d at 652 (Emphasis supplied by the Supreme Court).

In Schappell, our supreme court held that the language of the residuary clause clearly reflected the testator’s intent to bequeath the residue of his estate to all of his children or their issue. Id. at 393, 227 A.2d at 653. The court stated further, that even if there were some doubt as to the intent of the testator’s language, the interpretation which gives almost perfect equality is to be preferred to one that gives gross inequality. Id. at 393, 227 A.2d at 653.

Our supreme court again had the opportunity to address this issue in Estate of McAfee, 463 Pa. 250, 344 A.2d 817 (1975). In that case, the grandchildren of the testatrix’ predeceased child claimed a share in her estate. The predeceased child died sixteen years prior to the execution of the will. The testatrix’ holographic will stated:

This is my wish and desire all personal and realstate [sic] property I leave to my children to dispose of as they see fit. After Thomas my son has been libiraly [sic] payed [sic] for careing [sic] for me the remainder devided [sic] among the other children. In case any of them become deceased before me their children to claim his or her share.

Id. at 252, 344 A.2d at 818. In McAfee, the surviving children claimed that the predeceased child was properly excluded as a legatee because he was deceased at the time that the will was drafted. The surviving children cited to the technical rules of will construction as articulated in Christopher v. Naylor, 1 Mer. 321, 35 Eng.Rep. 693 (Ch.1816) to support this contention.

The court in McAfee articulated the standard under which it would interpret the testatrix’ will as:

(1) that the testator’s intent is the polestar and must prevail; and (2) that his intent must be gathered from a consideration of (a) all the language contained in the will and (b) his scheme of distribution and (c) the time he made his will and (d) the existing facts; and (3) that technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting, or the testator’s intent is for any reason uncertain.

Id., at 253, 344 A.2d at 819.

There, our supreme court, after examining the language of the testatrix’ will, concluded that the will was unambiguous and that any reference to the technical rules of construction was unnecessary. The court also concluded that the clear intent of the testatrix’ language was to include all of her children or their issue as beneficiaries under the will. Id. The court also indicated that its interpretation of the will produced virtual equality while the result proposed by the surviving children produced gross inequality. Id. at 255, 344 A.2d at 819. The McAfee court concluded that while the testatrix was free to confer her bounty unequally or discriminatorily, inequality or discrimination would not be presumed unless the intention to do so is manifest. Id. at 255, 344 A.2d at 819.

We will now examine the case before us, in light of the above precedents. As all parties concede that' the language of the Will is unambiguous, there is no need to resort to the statutory canons of construction in order to interpret Article IV B. See McAfee, supra; 20 Pa.C.S. § 2514. Here, as in Schappell and McAfee, the Testatrix’ Will was executed after the death of her son John. After an examination of the language of the residuary clause, we conclude that the record supports the trial court’s findings that the Testatrix intended the residue of her estate to benefit all of her children or their issue. Under such an interpretation, Jonathan will take his deceased father’s share by representation under the Will. While we conclude that the intent of the Testatrix is clear, even if there were any doubt, the trial court’s interpretation of the residuary clause produces virtual equality among the Testatrix’ issue while Lockwood’s interpretation produces gross inequality. We are not free to presume such a discriminatory result absent the Testatrix’ manifest intent to achieve such a purpose. McAfee at 255, 344 A.2d at 819.

As we conclude that the trial court committed neither an abuse of discretion nor error of law, the order and decree of distribution of the Rush Estate is affirmed.

Order Affirmed.