text:
    458 A.2d 580
    Anthony J. MANCINI and Joan Mary Sica, v. John S. MORROW and Bernadine J. Morrow, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1982.
    Filed March 25, 1983.

      Timothy 0. Nolen, Norristown, for appellants.
    Rubin Mogul, Ardmore, for appellees.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   McEWEN, Judge:

We here consider an appeal brought by defendants from a judgment entered in the amount of $4,487.97 against defendants and in favor of plaintiffs who had purchased from defendants a residential property in Plymouth Township, Montgomery County, in October of 1977. We affirm.

The amended complaint of the buyers, filed both in trespass and assumpsit, alleged that the sellers were aware that there were substantial and material damages to the premises and that the sellers deliberately, intentionally and deceitfully hid and concealed this damage so that it would not be ascertainable by the buyers. The complaint further alleged that as a result of the damages to the property, the buyers sustained damages for necessary repairs and replacements to the premises. The court found that the buyers proved that the sellers had taken affirmative measures to conceal structural defects in the garage wall and extensive water damage in the basement and further found that the sellers had removed a number of valuable electrical fixtures and curtain rods from the home prior to settlement.

The sellers now argue that the trial court committed error when it found that they were liable to the buyers and when it computed the amount of damages. Our appellate role is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567, 440 A.2d 609, 611 (1982); Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa.Super. 177, 180, 395 A.2d 1373, 1375 (1978). The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Eddystone Fire Co. No. 1 v. Continental Insurance Cos., 284 Pa.Super. 260, 263, 425 A.2d 803, 804 (1981). When an appellate court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all the evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Brenna v. Nationwide Insurance Co., supra 294 Pa.Super. at 567-68, 440 A.2d at 611; Courts v. Campbell, 245 Pa.Super. 326, 331, 369 A.2d 425, 428 (1976).

The sellers assert that the trial court erred in its ultimate conclusion that sellers were liable to the buyers by reason of (1) a failure of that court to properly apply the parol evidence rule, and (2) the determination of the trial court that there was sufficient evidence to support a finding that the sellers had engaged in fraudulent conduct. The evidence at the trial established that approximately two and one-half months expired between the date that the agreement to purchase was executed and the date of the settlement and that the buyers inspected the house on but two occasions, first, on the day prior to the date of execution of the agreement to purchase and second, immediately preceding the settlement. The buyers on the first visit inspected both the basement and the garage, the two areas of the house where the court found that the sellers had concealed defects. Although the buyers detected a musty odor in the basement, they could not see any water stains on either the floor or walls of the basement since: (1) most of the floor was covered by a large area rug; (2) there were approximately eight posters which measured 36" x 36" on the basement walls; and (3) numerous large boxes of ceiling tiles were lined along the perimeter of the basement floor. The buyers also inspected the garage on the occasion of this first visit and found it to be in a generally cluttered condition; in addition, the one wall of the garage, the back wall where a structural defect was discovered after settlement, was paneled, the paneling was obscured by pool equipment hung on the wall and access to the panel was blocked by a work bench.

The buyers subsequently requested permission to reinspect the property on five different occasions. The sellers, however, refused these requests and limited buyers to one inspection immediately prior to settlement. At the time of this second inspection, the condition of the basement was virtually unchanged and the defective garage wall was still covered with the paneling. Thus, neither of the defects were discovered by the buyers prior to settlement. The buyers discovered soon after settlement (1) that the basement had severe water damage that they had not been able to discover during their inspection of the property, (2) that the basement became inundated by six inches of water following a normal rainfall, and (3) that the plywood covering on the one wall of the garage concealed a cracked and bulging wall that would have alerted the buyers to the structural defect there present.

The sellers argue that the parol evidence rule required the court to exclude testimony concerning the behavior of sellers which composed the basis for the claim of buyers that sellers had engaged in fraudulent activity. The purpose of the parol evidence rule is “to preserve the integrity of written agreements by refusing to permit, the contracting parties to attempt to alter the import of their contract through the use of contemporaneous [or prior] oral declarations.” Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120-21, 262 A.2d 851, 853 (1970); LeDonne v. Kessler, 256 Pa.Super. 280, 286, 389 A.2d 1123, 1126 (1978). The sellers specifically argue that the parol evidence rule bars evidence of the defects discovered by buyers after the execution of the agreement of sale. In support of this argument, the sellers refer to the following integration clause which was contained in the agreement of sale entered into by the parties.

It is understood that Buyer has inspected the property or hereby waives the right to do so and he has agreed to purchase it as a result of such inspection and did not because of or in reliance upon any representation made by the Seller or any officer, partner, or employee of Seller, or by the agent of the Seller or any of the latter’s salesmen and employees, or by a cooperating broker, or any of his salesmen and employees and that he has agreed to purchase it in its present condition unless otherwise specified herein. It is further understood that this agreement contains the whole agreement between the Seller and the Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this agreement shall not be altered, amended, changed or modified except in writing executed by the parties hereto.

At trial the buyers testified that they were fraudulently induced to purchase the property as a result of the concealment of defects by the sellers. Whatever uncertainty may have existed in Pennsylvania appellate decisions concerning application of the parol evidence rule in suits where it is alleged that one of the parties to a contract was fraudulently induced to enter a contract through fraud or misrepresentation, the clarification provided by this Court in LeDonne v. Kessler, supra, appears to have become the prevailing view. Our Court there enunciated a test for determining the application of the parol evidence rule in these situations by balancing “the extent of the party’s knowledge of objectionable conditions derived from a reasonable inspection against the extent of the coverage of the contract’s integration clause in order to determine whether that party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.” Id. 256 Pa.Super. at 294, 389 A.2d at 1130. (footnote omitted).

The LeDonne case concerned an attempt by the purchasers of real property to recover damages incurred as the result of fraudulent misrepresentations of the sellers. The Common Pleas Court granted a summary judgment in favor of sellers on the ground that the parol evidence rule prohibited oral testimony which contradicted the clause in the agreement of sale which stated, “The parties have knowledge of the physical appearance of the land and buildings and of the value thereof and there are no verbal representations as to character or quality.” The opinion of our esteemed colleague, Judge J. Sydney Hoffman, concluded that evidence to contradict this clause was admissible after balancing the extent of the knowledge that the buyers had of the defects against the nature of the integration clause in the agreement. The first claimed defect in the property, namely, a damaged septic system, was not ascertainable by reasonable inspection, and the court concluded that the integration clause only denied the existence of verbal representations as to the character or quality of land and building conditions that were reasonably apparent from the inspection of the premises. The second alleged defect, namely, a water leakage problem, was discovered by the buyers upon their inspection of the property. The integration clause did cover this type of observable physical condition and, therefore, the buyers could not justifiably rely upon the oral representations of the seller that there was no water problem without insisting upon further contractual protection or the deletion of the overly broad integration clause.

The application of the balancing test formulated in LeDonne to the facts in the case we here consider leads us to conclude that evidence of fraud in the inducement of the contract was not barred by the parol evidence rule. The water damage in the basement and the bulge in the garage wall were not reasonably apparent to the buyers. Instead, the water damage in the basement was hidden by a large area rug, numerous large posters on the walls and paneling. Similarly, the defect in the garage was hidden by paneling, pool equipment hung on this paneling and a work bench placed in front of the pool equipment. On the other hand, the integration clause in the agreement of sale in the instant case provided in pertinent part that: the agreement contained the whole agreement between the parties; the buyers inspected the property and agreed to purchase it as a result of such inspection and not in reliance upon any representation made by the sellers; and the buyers agreed to purchase it in its present condition unless otherwise specified in the agreement. We interpret this clause, as we interpreted the same type of clause in LeDonne, supra, to deny only “the existence of verbal representations as to the character or quality of land and building conditions reasonably apparent from an inspection of the premises.” LeDonne, supra 256 Pa.Super. at 291, 389 A.2d at 1129. See generally Berger v. Pittsburgh Auto Equipment Co., supra (Parol evidence not barred where the contractual integration clause only covered conditions reasonably apparent from an inspection of the premises and the alleged defects could not be discovered by visual inspection but required expert testimony.) Thus, a consideration of the balance between the buyers’ knowledge of the defects and the integration clause leads us to conclude that the clause does not bar evidence of the alleged fraudulent concealments in the basement and garage.

The sellers also argue that the evidence does not support the finding of the trial court that they had fraudulently concealed known material defects from the buyers. Fraud must be proven by “clear, precise and undubitable” evidence. Highmont Music Corp. v. J.M. Hoffmann Co., 397 Pa. 345, 350, 155 A.2d 363, 366 (1959); Glanski v. Ervine, 269 Pa.Super. 182, 191, 409 A.2d 425, 430 (1979). “Fraud consists of anything calculated to deceive, whether by single act, or a combination, or by suppression of truth, or a suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, or word of mouth, or look or gesture.” Frowen v. Blank, 493 Pa. 137, 143, 425 A.2d 412, 415 (1981). Citing In re McClellan’s Estate, 365 Pa. 401, 407, 75 A.2d 595, 598 (1950); In re Reichert’s Estate, 356 Pa. 269, 274, 51 A.2d 615, 617 (1947). The following elements are necessary to prove a fraud and deceit action in trespass:

(1) a false representation of an existing factor, Fidurski v. Hammill, 328 Pa. 1, 195 A. 3 (1937); (2) if the misrepresentation is innocently made, then it is actionable only if it relates to a matter material to the transaction involved; while if the misrepresentation is knowingly made or involves a non-privileged failure to disclose, materiality is not a requisite to the action, DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644, affirming 11 D. & C.2d 447, (1958); (3) scienter, which may be either actual knowledge of a truth or falsity of representation, reckless ignorance of the falsity of the matter, or mere false information where a duty to know is imposed on a person by reason of special circumstances, 16 P.L.E. Fraud § 7; (4) reliance, which must be justifiable, so that common prudence or diligence could not have ascertained the truth; and (5) damage to the person relying thereon.

Shane v. Hoffmann, 227 Pa.Super. 176, 182, 324 A.2d 532, 536 (1974).

The instant complaint in trespass and assumpsit set forth allegations of active concealment of defects in the property that was sold. “[Ajctive concealment of defects known to be material to a purchaser is legally equivalent to affirmative misrepresentation.” Eckrich v. DiNardo, 283 Pa.Super. 84, 90 n. 5, 423 A.2d 727, 729 (1980); National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 376, 381 A.2d 963, 966 (1977). See Restatement (Second) Contracts, § 160 (1981); Restatement (Second) Torts, § 550 (1977). The situation we here consider is analogous to that present in Miller v. Bare, 457 F.Supp. 1359 (W.D.Pa.1978), where home buyers brought suit against the sellers for various misrepresentations made relating to the property. After settlement was concluded, the buyers discovered a large area along a wall of the recreation room which had stain marks from water leakage and which had previously been covered up by a work bench that the sellers had left on the premises. The buyers asked whether there were any major problems with the property and the sellers replied that there were a few minor defects, but failed to mention the water leakage problem. The court noted that the buyers could not have discovered the problem on their own since the weather was dry when they were inspecting the house and the damage from the flooding was concealed by the work bench. The court concluded that the sellers had deliberately concealed the water problem and misrepresented the condition of the house.

The Miller case differs somewhat from the instant case since in Miller there was testimony at trial that the sellers had told the buyers that there were no major problems with the property, whereas in the instant case, the theory of fraud pursued by the buyers rests solely on acts of concealment. It is clear, of course, that concealment can be a sufficient basis for a finding that a party engaged in fraudulent conduct, provided that the other earlier mentioned elements of fraud are established. See National Building Leasing, Inc., supra. There was sufficient evidence to form the basis for the findings of the court adverse to the sellers since: (1) the sellers were aware that there had been a water leakage problem in the basement for one year prior to the inspection and the sellers successfully attempted to conceal the leakage problem from the buyers; (2) the sellers had concealed the cracked walls in the garage by first nailing plywood over the defective area and then using the work bench to limit access and the pool equipment to obscure the walls; and (3) the buyers had conducted a reasonable inspection but such an inspection could not have revealed the structural damage in the garage wall nor the water problem in the basement, since the weather was dry when they inspected the house and the existing water damage was concealed by the strategic placement of boxes, posters and furniture in such a way as to hide the damage. We are not persuaded that it was error for the court to determine that the buyers justifiably relied upon their inspection of the premises and, as a result of the acts of concealment by the sellers, the buyers were not able to discover the defects.

We next address the contention of the sellers that the trial court erred when it found that the buyers were entitled to damages equivalent to the cost of the replacement of electrical fixtures that the sellers had removed from the property. Since the sellers do not argue that the trial court erred when it determined that they breached the contract by removing the electrical fixtures, our discussion is limited to the amount of damages awarded for these fixtures. Claims for recovery are governed by the following principle:

The measure of recovery and the method of evaluation that are adopted should in every case be so adjusted as to attain as nearly as possible the purpose of our system of remedial justice. This purpose is to put the injured party in as good a position as the promised performance would have put him, having regard both to the reasonable foreseeability of the harm and to the extent that it could reasonably have been avoided by the injured party himself.

5 Corbin on Contracts § 1005 at 63 (1951).

A party to a contract who commits a breach must make compensation therefor to the injured party. Corbin on Contracts, supra, § 992 at 5. The cost of making the repairs, which in this case was the replacement of the electrical fixtures, was the measure of damages. See Briskman v. Greenhill Farms of Lower Merion, Inc., 186 Pa.Super. 482, 142 A.2d 504 (1958). The award of damages by a trial court is constrained by the principle that no more can be recovered by damages than will fully compensate the party injured. Massachusetts Bonding and Ins. Co. v. Johnston and Harder, Inc., 343 Pa. 270, 22 A.2d 709 (1941); Myer Feinstein Co. v. DeVincent, 151 Pa.Super. 254, 30 A.2d 221 (1943). Rather, “[wjhere there is a basis in the evidence for a reasonable computation of the damages suffered considering the nature of the transaction, a verdict may be based thereon, though there may be involved some uncertainty about it”. Weinglass v. Gibson, 304 Pa. 203, 207, 155 A. 439, 440 (1931); Myer Feinstein Co., supra 151 Pa.Super. at 258, 30 A.2d at 223. (citations omitted).

The buyers testified that by reason of the removal of the fixtures by the sellers, it became necessary for the buyers to spend $450.00 to purchase electrical fixtures. The sellers now argue that “the record is devoid of evidence that the replacement fixtures were similar to those fixtures removed and of the diminished value of the real estate.” (Brief of Appellant at 23). Although the sellers presented testimony concerning the price paid for the removed fixtures when originally purchased, they presented no evidence as to the condition of the fixtures at the time of removal. We note that the condition of the removed fixtures was peculiarly within the knowledge of the sellers and that they offered no evidence as to that condition or the value in that condition. Counsel for the sellers did not attempt by cross-examination of the witness or otherwise to impeach the reasonableness of these figures. See Myer Feinstein Co., supra. There was evidence presented by the buyers, however, as to replacement costs for the fixtures and, thus, there is evidence from which the trial court could reach its conclusion as to the damages sustained by the buyers as a result of the breach. See Davis v. Jackson, 264 Md. 668, 287 A.2d 768 (1972). We conclude that there was a basis in the evidence for the award of damages in the amount of $450.00 for the removal of the fixtures by the sellers.

Judgment affirmed.

      . The notice of appeal to this court was filed on August 5, 1981, and stated that the appeal was taken from the July 29, 1981 order of the Common Pleas Court which dismissed the exceptions filed by defendants to the decision of the trial court. Orders dismissing exceptions following non-jury trials are interlocutory and non-appealable until judgment has been entered on the docket. Laurel National Bank v. Mutual Benefit Insurance Co., 295 Pa.Super. 255, 441 A.2d 756 (1982); Murray v. Abcon, Inc., 291 Pa.Super. 428, 435 A.2d 1301 (1981); See Pa.R.A.P. 301(c), 42 Pa.C.S.A. The judgment of the trial court was not entered on the docket until August 6, 1981, which was one day after the notice of appeal to this court was filed. The proper procedure for taking an appeal in this case would have been the entry of the judgment on the docket followed by the filing of a notice of appeal to this court from that judgment. Since the judgment has been entered on the docket, albeit one day after the notice of appeal was taken, we will consider the merits of this case. It would be a waste of judicial resources to now require that the notice of appeal be refiled in an effort to cure so technical a defect.

      . See Berger v. Pittsburgh Auto Equipment Co., 387 Pa. 61, 127 A.2d 334 (1956); Bardwell v. Willis Co., 375 Pa. 503, 100 A.2d 102 (1953); See also National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977); Betz Laboratories, Inc. v. Hines, 647 F.2d 402 (3rd Cir.1981).

      . The sellers do not raise on appeal the issue of damages with respect to the basement and garage.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    458 A.2d 587
    COMMONWEALTH of Pennsylvania v. Sandra BASILE, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1982.
    Filed March 25, 1983.

      Neil E. Jokelson, Philadelphia, for appellant.
    David M. McGlaughlin, Henry J. Schireson, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   JOHNSON, Judge:

Appellant was convicted by a jury on two counts of second degree murder. Post verdict motions were denied and Appellant was sentenced to two consecutive terms of life imprisonment. This appeal followed.

Viewing the evidence in the light most favorable to the verdict winner, Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981), the evidence reveals that Appellant and two others, Vicki Schmidt and Debbie Von Gober, plotted to rob a certain tavern on March 28, 1974. That night, the three women proceeded to the tavern and remained there until all other patrons had left. Appellant and Schmidt, armed with hand guns, then opened fire on the owner and barmaid. The three then emptied the cash register, took the owner’s wallet and proceeded to their car. Schmidt then informed the other two women that it was necessary to reenter the tavern to retrieve an empty gun cartridge. Appellant refused, and after Schmidt and Von Gober were unsuccessful in reentering the tavern, the parties fled. Both victims died of the gunshot wounds.

The three perpetrators were subsequently identified by the tavern’s patrons as the last customers in the tavern on the night of the killings. Von Gober and Schmidt were traced by police to the home of a Warlock Motorcycle Club (hereinafter the Club) member in Windgap, Pennsylvania. They had gone to Windgap the same morning the murder victims were discovered. They were interrogated by police and denied involvement in the slayings. Appellant was located at her home with her husband, a former Club member. She too denied any involvement.

Police investigation also produced the empty gun cartridge which was found in the tavern. The police traced the marks on the empty cartridge and identified the gun which had been used to fire the cartridge. This trace indicated that Walter Rodriguez, a Club member, had purchased the gun. During questioning, Rodriguez told police he gave the gun to Thomas Schmidt, Vickie Schmidt’s husband, in December of 1973. A search of the Schmidt residence uncovered the box to this gun, and a full clip of ammunition; however the weapon was never located.

On December 12, 1979, Von Gober voluntarily went to the police and confessed to the murders. Her first confession implicated herself and Appellant. Her second confession also implicated Vickie Schmidt, attributing the delay in implicating Schmidt to a recent death threat made to her by Schmidt.

In her second account, Von Gober described the conspiracy to rob the tavern, which occurred at the home of Club President Jay Centurione. She further described both the crime and the cover-up which was subsequently organized over the next five and a half years by the Club community, most notably by Vickie and Thomas Schmidt, Jay Centurione and Appellant’s husband, Harpo Basile.

Appellant raises three issues on appeal, namely: (1) whether the trial court erred in admitting evidence of allegedly prejudicial hearsay statements of Vickie Schmidt, which statements occurred after the commission of the crimes and inculpated Appellant, (2) whether comments made by the prosecution, in its opening and closing statements, concerning the role of the Club, the honesty and motivation of defense counsel, and the veracity of Appellant, amounted to prosecutorial misconduct, and (3) whether the trial court erred in instructing the jury not to consider the penalties attending a verdict of guilty to the murder charges.

As we find these arguments either to be meritless or to have been waived, we affirm.

I.

Appellant alleges in her first argument that the trial court improperly permitted evidence of the out-of-court statements of Schmidt to be introduced through the direct examination of the Commonwealth’s witness Von Gober over defense counsel objection. The statements, according to Appellant, were hearsay, did not properly fall under any exception to the hearsay rule, and violated her rights under the Sixth Amendment to the United States Constitution.

The statements involved evidence that (1) Schmidt was in constant contact with Jay Centurione, who was coordinating the cover-up of the crimes, (2) that Schmidt had given a gun used in the crimes to one Ron Foster to be melted down, (3) that Schmidt had attended a Club meeting, not attended by Appellant, where it was determined whether Von Gober would live or die as a result of her failure to follow Schmidt’s instructions during the commission of the crime, (4) that Schmidt had been at Appellant’s home when the investigating trooper arrived for questioning and as a result of the questioning, Appellant was quite upset and crying and that Schmidt was sick and tired of Appellant’s calls to her concerning Appellant’s hysterical reactions to nightmares as a result of the crime, (5) that Schmidt had stated that Appellant’s husband and Jay Centurione were keeping a “tight hold” on Appellant, and (6) that Schmidt had offered Von Gober $1,000 to set up the investigating trooper to be killed.

Hearsay statements made by a co-conspirator are allowed to be admitted against an accused if the statements are made during the conspiracy, in furtherance thereof, and where there is other evidence of the existence of a conspiracy. Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981); Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981); Commonwealth v. Plusquellic, 303 Pa.Super. 1, 449 A.2d 47 (1982); Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981). This exception applies even where no party has been formally charged with conspiracy. Dreibelbis, supra; Commonwealth v. Weitkamp, 255 Pa.Super. 305, 386 A.2d 1014 (1978). Nor need the co-conspirator, whose declaration is testified to, be on trial. Weitkamp, supra.

To lay a foundation for the co-conspirator exception to the hearsay rule, the Commonwealth must prove that: (1) a conspiracy existed between declarant and the person against whom the evidence is offered, and (2) that the statement sought to be admitted was made during the course of the conspiracy. Weitkamp, supra. However, there must be evidence other than the statement of the co-conspirator to prove that a conspiracy existed. Plusquellic, supra.

A conspiracy, for purposes of this exception, may be inferentially established by showing the relation, conduct or circumstances of the parties. Dreibelbis, supra; Plusquellic, supra. Such a conspiracy need only be proved by a fair preponderance of the evidence. Commonwealth v. Hirsch, 225 Pa.Super. 494, 311 A.2d 679 (1973). Also, when a conspiracy to commit a particular crime or crimes has been shown, each conspirator is responsible for the acts of his co-conspirators committed in furtherance of the conspiracy; the agreement is the nexus which renders, a conspirator vicariously liable for the acts of his associates. Plusquellic, supra.

As stated in Commonwealth v. Tumminello, 292 Pa.Super. at 389, 437 A.2d at 439:

“In Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980) our Supreme Court reaffirmed its approval of the use of evidence of a co-conspirator’s attempt to conceal evidence after the commission of a crime, finding that such acts “c[a]me within the scope of the conspiracy to commit the crime.” Id., 489 Pa. at 92, 413 A.2d at 1028. In so doing, the Evans court directed that the following test be followed:
‘The duration of a conspiracy depends upon the facts of the particular case, that is, it depends upon the scope of the agreement entered into by its members. Generally, the conspiracy ends when its principal objective is accomplished because no agreement to retain secrecy after the achievement of the unlawful end can be shown or implied by mere “acts of covering up.” Thus in Grünewald v. United States, supra, 353 U.S. [391] at 402, 77 S.Ct. [963] at 972, [1 L.Ed.2d 931 (1957),] the Supreme Court stated, “Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators.” But the fact that the “central objective” of the conspiracy has been nominally attained does not preclude the continuance of the conspiracy. Where there is evidence that the conspirators originally agreed to take certain steps after the principal objective of the conspiracy was reached, or evidence from which such agreement may reasonably be inferred, the conspiracy may be found to continue. Atkins v. United States, 307 F.2d 937, 940 (9th Cir.1962); cf., United States v. Allegretti, 340 F.2d 254, 256 (7th Cir.1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965).... The crucial factor is the necessity for some showing that the later activities were part of the original plan.’ ” (Footnote omitted) (Citations omitted) Id., 489 Pa. at 92-93, 413 A.2d at 1028-29.

The facts in the instant case clearly establish that a conspiracy existed, and continued, involving (1) commission of the robbery and (2) a cover-up of the robbery and murders. The evidence indicates that practically all parties involved in the crime and the cover-up were related to the Club in some way. Schmidt and Appellant were both married to members or former members of the Club. The initial part of the conspiracy was planned at the home of the Club president. Appellant was present when Schmidt spoke of reentering the tavern immediately after the crimes. The stolen money was divided at Appellant’s home in her presence. A meeting of Club members (excluding Appellant) was held concerning whether Von Gober would live or die for her failure to follow orders during the crime. Appellant was present at a meeting of various co-conspirators where Schmidt offered to pay for the “setting up” of the investigating trooper. From this and other evidence, we conclude that a conspiracy clearly existed and Appellant was a part of that conspiracy. Also, the conspiracy did not terminate with the commission of the crimes, but continued until Appellant’s arrest. See Commonwealth v. Dreibelbis, supra; Commonwealth v. Tumminello, supra.

Therefore, the statements made by Schmidt were admissible under the co-conspirator exception to the hearsay rule against Appellant.

Appellant’s claim that the admissions of the statements violated her Sixth Amendment right of confrontation has been waived for Appellant’s failure to specifically raise the issue in either her initial or supplemental post-trial motions. Commonwealth v. Dunston, 496 Pa. 552, 437 A.2d 1178 (1981); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

II.

The second issue raised by Appellant concerns certain remarks made by the prosecutor in his opening and closing statements allegedly amounting to prosecutorial misconduct. Specifically, Appellant alleges that the remarks in question (1) improperly emphasized the role of the Club, (2) impugned the honesty and motivation of defense and (3) indicated the prosecutor’s personal belief that Appellant had lied on the witness stand.

Appellant has referred to seven instances where the prosecutor mentioned the Club:

(1) You will hear, Ladies and Gentlemen, that these three women had one common bond. They were all the women of the members of motorcycle clubs. N.T.Vol. I p. 9.
(2) The three of them road [sic] to the home of one Jay Centurione, also a member of the Warlock Motorcycle Club. N.T.Vol. I p. 11.
(3) ... Walter Rodriguez ... went into a store ... and bought a pistol. The owner of that store recognized him as a Warlock, didn’t want to sell him the gun ... the owner ... called the State Police, and told them that he didn’t want to sell a pistol to this man and did he have to sell him a pistol. N.T.Vol. I p. 21.
(4) And they were people who kept arsenals. They were people to be feared, Ladies and Gentlemen. I submit if you look at the evidence, if you look at the type of people the Warlocks were, it’s eminently understandable why Debbie Von Gober wanted to kill herself ... N.T.Vol. V p. 90.
(5) Remember, these are all women of motorcycle men. These aren’t the three average high school girls. N.T. Vol. V p. 92.
(6) Jay coordinating what the girls were to say, Papa Jay, coordinating. It was the Warlocks network taking over to protect their own. N.T.Vol. V p. 120.
(7) The Commonwealth submits that Debbie Von Gober didn’t make any mistake that was material, she didn’t make any mistake, she didn’t have any fault in her recollection that should cause this jury to have a reasonable doubt. She says they went to the bar, and indeed they did go to the bar. They went there together. She said they had a discussion, a discussion at Jay Centurion’s [sic] house, the Warlock Jay Centurion [sic]. And at that house they discussed the robbery. N.T.Vol. V p. 94.

We note that no specific objection was made to the fourth or fifth remark and therefore, those remarks have not been preserved for review. See Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981); Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132 (1979).

Appellant argues that the remaining references to the Warlock Motorcycle Club by the prosecutor were inflammatory, improperly arousing the jury’s fears by suggesting that Appellant was dangerous because of her association with the Club.

As stated in Commonwealth v. Youngkin, 285 Pa. Super, at 430, 427 A.2d at 1362:

[W]e have always recognized that not every intemperate or uncalled for remark by the prosecutor requires a new trial. Rather, “[t]he language must be such that its ‘unavoidable effect would be to prejudice the jury forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.’ ” Moreover, the effect of such remarks is largely dependent upon the atmosphere at trial, and the proper action to be taken, upon objection, is within the discretion of the trial court. Finally, when the cumulative effect of any improper remarks so prejudices the jury as to prevent a fair trial, reversible error exists. (Citations and footnote omitted)

Upon a review of the entire record, it is apparent that Appellant’s connection with the Club was both relevant and material to the charges against her. Also, upon reviewing the references made by the prosecutor, we cannot say that in the context of the instant trial, they were so inflammatory or prejudicial so as to require a new trial. See Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982) (evidence of gang activity held admissible); see also Commonwealth v. Johnson, 496 Pa. 546, 437 A.2d 1175 (1981).

Appellant’s second allegation of prosecutorial misconduct concerns statements allegedly impugning the honesty and motivation of the defense.

The remarks raised by Appellant in his brief state:

(1) The interests of the Commonwealth and the interests of the defense in this case are in some ways similar, and in some ways different. As an Assistant District Attorney, I represent the Commonwealth of Pennsylvania. And the Commonwealth demands no victories, Ladies and Gentlemen. We seek justice, equal justice, impartial justice. N.T.Yol. V pp. 79-80.
(2) Mr. Jokelson examined the evidence, as he saw it. He is a very able and articulate lawyer. He presented his client’s case exceptionally well. He has cast the evidence in a light favorable to his client, and I submit to you in some cases cast it inaccurately. N.T.Vol. V p. 80.
(3) It is easy in a case of this magnitude, Ladies and Gentlemen, to be diverted. It’s easy to get hung up on details. It’s easy to poke holes. It’s easy to criticize the conduct of the police six years later. It’s very easy, too easy to do. N.T.Vol. V p. 81.
(4) I ask you, Ladies and Gentlemen, to resist being diverted by the arguments of Mr. Jokelson. I ask you to look at the evidence and look at the important evidence, look at the evidence that Mr. Jokelson can’t explain away, the evidence he glosses over____ As I said, he is an able attorney. He cross-examined the witnesses thoroughly. He nit picked, he picked and picked and picked and picked at every witness. You saw that. N.T.Vol. V pp. 81-2.
(5) Mr. Jokelson had stacks of paper, stacks of accounts over that six years from which to nit pick, and nit pick he did. I suggest to you, Ladies and Gentlemen, it’s a smoke screen. N.T.Vol. V p. 84.
(6) You can’t cross-examine this, Ladies and Gentlemen. You can’t pick at this. N.T.Vol. V p. 105.
(7) And, as I said in the beginning, you will see that no innocent person suffers, and you will see that no guilty person escapes, because the evidence in this case justifies no other conclusion, Ladies and Gentlemen, if you use your common sense and you don’t get diverted. Don’t go down those side roads. N.T.Vol. V p. 136.

We again note that Appellant has failed to preserve by specific objection all but the fifth and seventh remarks.

A number of cases in Pennsylvania have granted new trials because of prosecutorial misconduct involving statements somewhat similar to these complained of instantly. See e.g. Commonwealth v. Long, 258 Pa.Super. 312, 392 A.2d 810 (1978); (“Don’t allow the defendant to sneak out ... under the cover of smoke”); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975) (reference to “smoke screen”). However, no per se rule has been adopted with respect to such alleged improper remarks. Upon a review of the allegedly improper remarks in context of the trial as a whole, we find the instant case distinguishable from those where a new trial has been granted. The remarks by themselves were not of such a character as to inflame the passion and prejudices of the jury, nor were they capable of seriously misleading or distracting the jury. See Commonwealth v. Middleton, 269 Pa.Super. 17, 409 A.2d 41 (1979).

Those remarks made by the prosecutor, while questionable, “were neither so strong nor abusive that their unavoidable effect, individually or cumulatively, was to unduly influence the jury so that they could not fairly weigh the evidence and render a true verdict.” Commonwealth v. Youngkin, 285 Pa.Super. at 434, 427 A.2d at 1364.

Appellant’s final claim of prosecutorial misconduct concerns statements allegedly indicating the prosecutor’s personal belief that Appellant had lied on the witness stand:

The trooper says he opened that door when other witnesses say that door was closed. Either it was closed or open. He is either lying or telling the truth. And we submit that they have no motivation to lie, no motivation to lie. We submit there is only one person lying, one person alone in this courtroom with a motive to lie, and that you heard from that person this morning, and you heard an account that was incapable of verification, an account so vague that it didn’t even admit of proper cross-examination. N.T.Yol. V p. 134.

Again, viewing this remark in the context of the entire trial, we find that any error was harmless. Firstly, the comment did not involve a statement of the prosecutor’s personal belief. Secondly, the comment was a single isolated incident. Although questionable, the statement does not warrant the granting of a new trial. See Commonwealth v. Rozanski, 289 Pa.Super. 531, 433 A.2d 1382 (1981).

III.

Appellant’s third issue concerning the trial court’s instructions to the jury has been waived for Appellant’s failure to include this issue in either her Motion for a New Trial and Arrest of Judgment or her Supplemental Motions. See Pa.R.Crim.P. 1123(a); Commonwealth v. Blair, supra; see also Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982) (submission of statement of matters complained of on appeal is not sufficient to preserve claim of error for appellate review).

Judgment of sentence of February 9, 1981 is. affirmed.

      . 18 Pa.C.S.A. § 2502(b).

      . On January 19, 1983, this court denied the Commonwealth’s Motion to Quash this appeal. The Commonwealth’s Motion was based on allegations that Appellant had escaped from incarceration on December 8, 1982.

      . Vickie Schmidt did not testify at Appellant’s trial.

      . N.T.Vol. Ill pp. 128-9.

      . Id. p. 128.

      . Id. p. 130.

      . Id. pp. 145, 148.

      . Id. p. 148.

      . Id. p. 154.

      . The additional requirement listed in Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963), that the declaration must be in furtherance of the criminal purpose, is generally held to be met by proof that it was made during the existence of the conspiracy. McCormick on Evidence § 267 (2nd ed. 1972).

      . Remarks 1-3 appear in the prosecutor’s opening statement; remarks 4-7 in the closing statement.

      . All remarks appear in the prosecutor’s closing statement.


author: VAN der YOORT, Judge:

text:
    458 A.2d 594
    COMMONWEALTH of Pennsylvania v. Vernon FOY, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1982.
    Filed March 25, 1983.
    Petition for Allowance of Appeal Denied Sept. 14, 1983.

      Mark E. Kogan, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   VAN der YOORT, Judge:

On Monday, September 3, 1979, Bill Cook’s Pub at 5701 Elmwood Avenue, Philadelphia, was burglarized and Bill Cook, the proprietor, severely beaten by the burglar. In a non-jury trial on May 5, 1981, Appellant was found guilty of recklessly endangering another person, possession of an instrument of crime, aggravated assault, criminal trespass, and burglary. After denial of post-trial motions, Appellant was sentenced to a total of ten to twenty years imprisonment. The case is before us on direct appeal.

Appellant was apprehended by a police officer two blocks from the scene of the crime, within a few minutes after the assault on Mr. Cook. The officer brought Appellant back to the Pub where he was identified by the victim of the beating as his assailant.

The sole issue on appeal is whether the victim’s identification of Appellant as his assailant, a statement he later made to a detective denying guilt, and a flashlight which he removed from his pocket at the police station, should have been suppressed on the ground that they were the fruits of an arrest, illegal because made without a warrant or probable cause.

The circumstances leading up to Appellant’s arrest are these: At 5:30 a.m. of the day of the break-in, a silent burglar alarm went off at Cook’s Pub, connected to a police station and the apartment of William Cook, the Pub owner and victim. In response to the alarm, Mr. Cook and the police arrived at the Pub simultaneously, checked the first floor and basement and discovered evidence of the break-in and the burglary but no clue as to the whereabouts of the burglar.

In mid-morning of the same day, Cook decided to visit the basement again, to check the possibility of the burglar’s entry having been made through a wall from an adjoining empty building. While in the basement, he unexpectedly came upon a man standing in a shower stall in the basement bathroom. The fluorescent lights above the shower were lit, the shower 'curtain was open, and the intruder was facing Cook and standing motionless in the shower stall. Cook, 69 years old, was frozen with fright, and after staring at the Appellant several moments, attempted to retreat to the stairway to the first floor. He had taken only a step or two when the intruder assaulted him with what appeared to be a tire iron, striking him some 15 to 18 times. Cook put up his arms to break the blows to his head, but was knocked to the floor and badly beaten. He screamed for help, and Appellant ran up the steps to the first floor and out of the building. Someone in the bar of the Pub put in a call to the police and Officer Daniel Pinkney, cruising in a nearby radio patrol car, was dispatched to the scene of the disturbance at approximately 10:57 a.m. This was within a few minutes of the attack on Cook.

When Officer Pinkney was two blocks from the Pub, he was flagged down by the hand-waving and horn-blowing of a motorist driving away from the Pub and in the opposite direction to the approaching police car. The motorist told the officer that a man walking away from the Pub and some ten or fifteen feet ahead of the informant’s car was the man who had caused the disturbance at the Pub. There was no one else in sight on the street. The man thus identified was Appellant.

The officer backed his car toward the departing Appellant, who immediately quickened his pace and then broke into a run. The officer yelled to Appellant to halt, and pulled his revolver. Appellant halted and the officer frisked and handcuffed him. When the officer asked the informant if he could identify Appellant as the one who had robbed Cook’s Pub, he said he could not.

The officer then decided to have Appellant taken to the Pub for further identification. He put Appellant in the back seat of his patrol car and radioed the police station for a police wagon to take Appellant back to the Pub. While awaiting the police wagon, the officer turned on his car radio and heard a police bulletin concerning the burglary of Cook’s Pub. The bulletin called for the apprehension of a negro male about five feet nine and one-half inches tall and dressed in black trousers and white shirt (as was Appellant).

As soon as the police wagon arrived, Appellant was returned to the Pub, handcuffed and in custody of Officer Pinkney. When he was taken into the Pub, Mr. Cook was sitting in a chair at the top of the stairs leading to the basement, bleeding and being administered to by a police rescue squad, in pain but alert and talking. He immediately identified Appellant as his assailant. Appellant was then arrested and, in due course, tried and convicted.

Appellant’s appeal is based on the contention that this on-the-scene identification of him, and the statement which he later made to a detective denying guilt, and the flashlight found in his pocket, should have been suppressed as evidence because they were the products of an illegal arrest. A suppression hearing was held by the Court below and suppression was denied.

Appellant relies upon the guidelines to be gleaned from the opinions in Aguilar v. Texas 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), for determining the reliance that may be placed by an arresting officer on information received from an informer. Those guidelines, as paraphrased by this Court in Commonwealth v. Waters, 276 Pa.Super.Ct. 584, 589, 419 A.2d 612 (1980), require that:

Where probable cause is based upon information received from an unidentified informant, the following requirements must be met: (1) the arresting officer must know some of the underlying circumstances from which the informant concluded that the suspect participated in criminal activity, and (2) the officer must have some reasonable basis for concluding that the informant was credible or his information reliable.

In several recent cases, we have held that in applying the requirements of Aguilar and Spinelli to information furnished by an informant, we should test reasonable cause for arrest not merely on the tip received from the informant, but by surrounding circumstances as well, including background information otherwise known or reasonably believed by the arresting officer, the timing of the informant’s information, the proximity of the informant to the scene of the disturbance, and the conduct of the suspect in fleeing from the scene or from the police. So tested, we have refused to rule an arrest to be illegal or to suppress testimony where the circumstances tending to corroborate the informant were, if anything, less persuasive than in this case. Commonwealth v. Gease, 304 Pa.Super.Ct. 433, 450 A.2d 989 (1982), Commonwealth v. Legg, 258 Pa.Super.Ct. 294, 392 A.2d 801 (1978), Commonwealth v. Montgomery, 246 Pa.Super.Ct. 371, 371 A.2d 885 (1977).

In Legg, this Court held that the reliability of an anonymous tip could be established by other circumstances, and that pieces of information which are insufficient in themselves to establish probable cause may be cumulated to establish a reasonable basis for arrest. Those circumstances included the fact that the suspect fled from the police, that he fit the description of the robber previously obtained by the police from eyewitnesses, and that the location of the place where he was hiding and its distance from the scene of the crime was consistent with the time that had elapsed between the robbery and his apprehension. As this Court concluded in Legg, 258 Pa. Superior Ct. at 299, 392 A.2d 801:

Were we to conclude that [the officer] lacked probable cause to arrest on these facts, especially given Appellant’s flight from answering any questions, we would, in effect, be requiring that [he] simply “shrug his shoulders and allow ... a criminal to escape”, since no intermediate approach was feasible.

Montgomery also involved an arrest based upon an anonymous tip corroborated by surrounding circumstances. An unknown informant told the victim that the perpetrators of the crime were at a certain address about a block from the scene of the crime. This information was given to him within 15 minutes of the robbery, and he at once advised the police, who went to the address and made the arrest. We stated, 246 Pa.Super.Ct. at p. 377, 371 A.2d 885:

The salient factors in our case are that the robbery, the informer’s tip, and the subsequent arrest of the Appellant all occurred within 15 minutes time and within a block of each other. This places the occurrences so close to one another in time and place so as to justify the search as the probabilities were very great that a disinterested observer of the occurrences would have seen where the suspects went. Accordingly we find no unlawful police conduct relative to the search of the premises and subsequent arrest of Appellant and his accomplice.

In the case before us, probable cause for arrest does not rest solely on the information received from the informant, but rather on several circumstances known to the officer which collectively tended to confirm what he had been told by the informant. The officer knew that there had been a disturbance at Cook’s Pub because he was on his way to the Pub in response to a police direction to go to the scene of the trouble at the Pub. The credibility of the informant’s statement that Appellant was the culprit was strengthened by the fact that the informant was following Appellant very closely by car only two blocks from the Pub and only a few minutes after the officer had been called to the scene (10:57 a.m.). Appellant had quickened his departing steps when he saw the informant flag down the police car, and he broke into a run when the officer started toward him. This is relevant evidence of a guilty frame of mind. The final circumstance was the police broadcast while the officer was holding Appellant pending the arrival of the police wagon. In that police broadcast, Appellant and his apparel were accurately described.

It is abundantly clear that the circumstances known to Officer Pinkney prior to his action in returning Appellant to the Pub for identification were so cumulatively convincing as to amount to a reasonable basis for apprehending Appellant. Every circumstance, the timing of Appellant’s apprehension within minutes of the disturbance, the near location of his apprehension in relation to the Pub, the conduct of Appellant in attempting to flee, and the radioed police bulletin describing Appellant with accuracy, justified the officer’s action in first apprehending and then arresting Appellant after his identification by Cook.

Even so, if we had doubts about the legality of Appellant’s arrest, which we do not, we would find it difficult to classify any of the evidence on which he was convicted as the fruit of his arrest. Cook’s identification of Appellant at the trial as his assailant was based upon his vivid recollection of him when he first came upon him unexpectedly in the basement shower. The red flashlight, which was taken from his pocket at the police station, was offered in evidence but was not otherwise mentioned in the testimony. His statement taken by the detective at the police station immediately following his arrest, which was a denial of guilt and an explanation of his presence on the street when apprehended, was not introduced in evidence.

Judgment of sentence affirmed.

SPAETH, J., concurs in the result.


author: HOFFMAN, Judge:

text:
    458 A.2d 597
    COMMONWEALTH of Pennsylvania v. William STARKS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1983.
    Filed March 31, 1983.

      William P. Fedullo, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in not finding his retrial barred by the double jeopardy clause. We disagree and, accordingly, affirm the order of the lower court and remand for further proceedings.

On October 8, 1974 appellant was convicted following a jury trial of first degree murder and a weapons offense. On appeal to the Supreme Court, appellant’s conviction was reversed and a new trial granted because of prosecutorial misconduct. Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978). Appellant’s subsequent contention that the prosecutorial misconduct barred his reprosecution was rejected by the Supreme Court in Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980). Appellant’s second trial began on February 17, 1981 but was interrupted during the Commonwealth’s case because appellant’s counsel was ill. The lower court ordered counsel to submit to a physical exam on February 18, 1981 and the examining police surgeon opined that counsel was capable of proceeding. Upon a reexamination the next day, the lower court ordered counsel to resume his representation. Counsel attempted to cross-examine a Commonwealth witness, but was soon unable to continue. The lower court believed counsel to be healthy and again ordered him to represent appellant. Counsel refused, prompting the lower court to find him in contempt and have him removed from the courtroom. The lower court then held the following colloquy with appellant:

THE COURT: Wait just a moment. I want to voir dire [appellant]. Step up, [appellant].
Now [appellant], as you can see, because of your attorney’s conduct, I have had to really remove him from the case. He has removed himself from the case affectively [sic]. Do you wish to represent yourself and continue with the trial?
[APPELLANT]: No.
THE COURT: Do you wish to have a mistrial and continue it?
[APPELLANT]: I wish to have a mistrial.
THE COURT: I mean declared.

All right. Then we will have to declare a mistrial. (N.T. February 19, 1981 at 38-39). New counsel was appointed and appellant moved to dismiss the indictments as barred by the double jeopardy clause. The lower court denied the motion, prompting this appeal.

Appellant contends that the lower court’s declaring a mistrial was not manifestly necessary and thus his retrial is barred by the double jeopardy clause. Absent a defendant’s request or consent, a trial court may declare a mistrial only when manifestly necessary or when the ends of justice would otherwise be defeated. Commonwealth v. Bartolomucci, 468 Pa. 338, 345, 362 A.2d 234, 238 (1976). See United States v. Perez, 9 Wheat. (22 U.S.) 578, 6 L.Ed. 165 (1824). Although determinations of manifest necessity are within the discretion of the trial court, “any doubts regarding the propriety of the exercise of discretion and thus about the necessity for the mistrial must be resolved in favor of the accused.” Commonwealth v. Bartolomucci, supra 468 Pa. at 347, 362 A.2d at 239.

Although subsequently discovered evidence showed that counsel actually was incapable of proceeding, the only evidence before the court when counsel refused to proceed indicated that he was physically able to continue. Thus, the lower court order finding him in contempt and removing him from the case was initially justified. Following counsel’s removal, the lower court was faced with three alternatives: (1) proceed with the case and allow appellant to represent himself; (2) continue the case and appoint new counsel; or (3) declare a mistrial. Appellant refused the court’s offer of self-representation. It was not feasible to continue the case until newly appointed counsel was prepared. As a sole practitioner, appellant’s counsel had no colleagues to call upon who were already familiar with the case or his strategy. See Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975) (“possible for another prosecuting attorney to assume control of Commonwealth’s case and complete trial”). Thus, new counsel would be wholly unfamiliar with appellant, the case, or its strategy, and would need substantial time to adequately aquaint himself with appellant, the witnesses, and the testimony from appellant’s first and present trials. See Commonwealth v. Robson, supra (manifest necessity when judge unable to continue for two weeks); Commonwealth v. Manley, 252 Pa.Superior Ct. 77, 380 A.2d 1290 (1977) (same). Additionally, new counsel would have had no opportunity to file pre-trial motions or participate in selecting the jury. Moreover, new counsel would have to accept prior counsel’s cross-examination on much of the Commonwealth’s case, despite prior counsel’s admitting that he had been confused and unable to formulate proper questions. Thus, continuation of the case with new counsel would have required a lengthy delay, hampering the jury’s recollection of the manner and content of the testimony, and would have restricted the avenues open to new counsel to effectively and independently represent appellant. Accordingly, the lower court did not err in finding the alternatives unacceptable and in declaring a mistrial and therefore, we affirm its order and remand for further proceedings.

Order affirmed and case remanded for further proceedings.

      . Because we find the manifest necessity required to declare a mistrial, we need not determine whether appellant’s consent was knowingly and intelligently given.

      . Counsel’s contempt conviction was reversed by this Court when subsequent medical testimony revealed that his refusal to continue resulted from an acute emotional illness. See Appeal of Redmond, 312 Pa.Superior Ct. 232, 458 A.2d 600 (1983). He was unable to appear before a jury for the next six months.

      . Unlike in Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971) and Commonwealth v. Dull, 257 Pa.Superior Ct. 192, 390 A.2d 777 (1978), where findings of manifest necessity predicated upon an uncorroborated and unexplored assertion that a Commonwealth witness was ill were reversed, the lower court here granted counsel one and one-half days continuance and then ordered independent medical examinations. Those examinations and the court’s own observations supported the court’s conclusion that counsel’s behavior was contemptuous disobedience, requiring his removal from the case and the appointment of new counsel.


author: PER CURIAM:

text:
    458 A.2d 600
    COMMONWEALTH of Pennsylvania v. William STARKS. Appeal of Robert REDMOND, Esq.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1983.
    Filed March 31, 1983.

      Samuel C. Stretton, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   PER CURIAM:

Appellant contends that the lower court erred in finding him guilty of contempt and sentencing him to sixty days imprisonment. Because we find the evidence of appellant’s intent insufficient to support a contempt conviction, we must reverse the order and judgment of sentence of the lower court and order appellant discharged.

Appellant, a solo practitioner, was court-appointed to defend William Starks in the retrial of a first degree murder charge. Late in the afternoon of the first day of Starks’ jury trial on February 17, 1981, appellant stopped cross-examining a police detective and requested the lower court to recess for the day because he felt ill and was having trouble concentrating and formulating questions. The lower court agreed to recess for the remainder of the day. The next morning, after appellant telephoned and informed the court that he was still ill and was going to a doctor, the lower court excused the jury until noon. Appellant could not locate a doctor, prompting the lower court to order him to leave his suburban Philadelphia home and report to the court’s chambers in Philadelphia’s City Hall, where the court would find a doctor for him. The jury was then dismissed for the day. Appellant was there examined by a police surgeon who found appellant’s throat moderately infected and noticed signs of increased bowel activity. Although the doctor prescribed medicine to control appellant's diarrhea and indicated that appellant may have had a viral infection, he informed the court that none of appellant’s symptoms were disabling and opined that appellant was capable of continuing.

Appellant arrived in court at 9 a.m. the next day and informed the court that he still could not proceed. After the police surgeon re-examined appellant and found improvement from the day before, appellant was ordered to resume his representation of Starks. Appellant cross-examined a Commonwealth witness for approximately twenty minutes before again telling the court he was having trouble formulating his questions. At the lower court’s insistence, appellant continued questioning the witness, but after several minutes he told the court he could not go on. The lower court ordered appellant to continue under threat of contempt. Appellant stated that he could not comply, prompting the lower court to find him in contempt, sentence him to sixty days imprisonment, and declare a mistrial in the Starks trial.

On appeal to this Court, the contempt order was vacated and the case remanded for further proceedings to determine if appellant’s physical or mental health prevented him from functioning as counsel on February 19, 1981. Testimony at a March 11, 1981 hearing indicated that shortly after the aborted trial, appellant had been examined by Dr. Clark, a general practitioner with extensive experience in psychiatry and Dr. Levy, a psychiatrist. Both found that appellant had been suffering acute emotional problems. A court-ordered independent psychiatric evaluation on March 17, 1981, indicated that appellant was “experiencing an Acute Depressive Reaction which is definitely related to unusual stresses that have burdened him over several months’ time and which triggered his discomforting physical and emotional reactions.” Appellant was instructed to take time away from his profession and other sources of stress. Nonetheless, the lower court found that appellant had not suffered any physical or mental illness to prevent him from continuing the trial and reimposed the contempt order and sentence. This appeal followed.

Appellant contends that the lower court erred in finding him in contempt. The inherent power of a court to impose summary punishment for contemptuous conduct has been statutorily limited to the following cases:

(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

42 Pa.C.S.A. § 4131. “To sustain a summary adjudication of criminal contempt, every element of the offense must be proven beyond a reasonable doubt.” Matter of Campolongo, 495 Pa. 627, 632, 435 A.2d 581, 583 (1981). Our courts have consistently held that a wrongful intent is a necessary element of criminal contempt. See Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980) (counsel’s refusal to appear amounted to intentional disobedience of lawful process); Commonwealth v. Washington, 466 Pa. 506, 353 A.2d 806 (1976) (attorney who overslept not intentionally disobedient or neglectful of lawful process); Matter of James, 307 Pa. Superior Ct. 570, 453 A.2d 1033 (1982) (attorney who overslept did not intentionally obstruct justice); Commonwealth v. Falkenhan, 306 Pa. Superior Ct. 330, 452 A.2d 750 (1982) (counsel intentionally obstructed justice); Medve v. Walakovits, 305 Pa. Superior Ct. 75, 451 A.2d 249 (1982) (reckless disregard for lawful process of court).

The lower court found that appellant’s failure to continue was disobedience under 42 Pa.C.S.A. § 4131(2) and obstruction of justice under 42 Pa.C.S.A. § 4131(3). Although we are reluctant to interfere with a trial court’s control of conduct in its courtroom, we cannot sustain its actions here because the record fails to establish that appellant had the requisite intent for criminal contempt. Uncontradicted testimony from three physicians indicated that appellant was suffering from a mental and emotional illness and was unable to continue. We find no wrongful intent in appellant’s inability to continue and thus reverse the order and judgment of sentence of the lower court and order appellant discharged.

Reversed and appellant discharged.

       The lower court also found that appellant had not complied with the doctor’s instructions, because he had continued his practice as usual. The court’s finding, however, although only marginally relevant to the central issue of appellant’s condition during the trial, is belied by the record. Appellant testified that he had taken two vacations after the doctor’s instructions and had substantially cut back his practice, working only three days each week. Moreover, he had all of his jury trials continued and sought to avoid the more stress-filled adversarial matters. Appellant’s testimony was corroborated by court records indicating a substantial decline in his practice from the previous year. We are satisfied that appellant reasonably complied with his doctor’s suggestions.


author: CERCONE, President Judge:

text:
    458 A.2d 602
    Thomas MURPHY, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, a SUBSIDIARY OF PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1982.
    Filed April 8, 1983.
    Petition for Allowance of Appeal Granted Sept. 1, 1983.

      James L. Womer, Philadelphia, for appellant.
    Vincent R. Garvey, Jr., Philadelphia, for appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Plaintiff-appellant, Thomas Murphy, takes this appeal from the order of the lower court granting summary judgment in favor of defendant-appellee and against plaintiff-appellant in his suit to recover benefits under his automobile insurance policy. Appellant argues that the court abused its discretion in granting summary judgment because the court’s order was based on a misinterpretation of the relevant statute of limitations provision of the Pennsylvania No-Fault Motor Vehicle Insurance Act. We agree with appellant and reverse the order of summary judgment and remand for trial.

The rule of law to be applied when a summary judgment is requested was reiterated by this Court in Petraglia v. American Motorists Insurance Company, 284 Pa.Superior Ct. 1, 3, 424 A.2d 1360, 1361 (1981), aff’d per curiam, 498 Pa. 32, 444 A.2d 653 (1982), wherein we stated:

Summary judgment “shall be rendered 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). Summary judgment can only be granted in the clearest of cases. See, e.g., Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). Additionally, the evidence must be viewed in the light most favorable to the non-moving party and all doubts must be resolved against the moving party. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Just v. Sons of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976).

See also Williams v. Keystone Insurance Company, 302 Pa.Superior Ct. 44, 46, 448 A.2d 86, 87 (1982). With an eye to this standard, we will look at the facts in the instant case. On March 16, 1977, appellant was injured when the vehicle in which he was riding became involved in an automobile accident. The next day, on March 17, 1977, appellant received the first of a series of treatments by various medical doctors. (At the time of the commencement of appellant’s law suit, filed in May 18, 1979, the most recent of these treatments was on May 16, 1977). Appellant retained counsel shortly after the accident and on November 15, 1977, appellee company sent a letter to counsel acknowledging receipt of appellant counsel’s letter dated October 14, 1977. Appellee’s letter further stated: “Please be advised that this is our first notification of the above captioned loss.” The letter included with it a “No-Fault Application” which appellant was to fill out and return.

Thereafter, on May 31, 1978, appellee company received appellant’s “No-Fault application”, dated May 29, 1978. In the form, appellant gave all of the requested information, including a claim of injury to his “neck, back, leg, knee, head, etc.” Appellant further indicated that he had received treatment for these injuries and that the condition would probably require further treatment. Appellant, however, did not attach any medical bills to this application.

On March 27, 1979, appellant’s counsel sent to appellee “the applicable bills, reports, wage information, etc.” Counsel further wrote, “This may not be the complete and total list of expenses incurred, but we would request payment for those enclosed and will submit any additional expenses at a further date.” Approximately, one month later, on April 26, 1979, appellee responded with this letter:

We are in receipt of your letter dated March 27, 1979 which we received on April 16, 1979. Please be advised that we received no bills or reports prior to this date. As you know the Statute of Limitations for Personal Injury Protection claims is two years after the date of loss. It appears that since this accident occurred on March 16, 1977, and treatment started 3/21/77, the Statute of Limitations has expired. We must therefore, respectfully, decline payment.

Following appellee’s denial of his claim, appellant filed the herewithin action on May 18, 1979. After the filing of an answer and depositions, appellee made a motion for summary judgment. The court granted the motion on the basis of the fact that the accident occurred on March 16, 1977 but the suit was not filed until May 18, 1979, which was more than two years from the date of the accident.

Appellant now argues that the court’s interpretation of the No-Fault Act’s statute of limitations was not in line with our decision in Myers, et al. v. USAA Casualty Insurance Co., 298 Pa.Superior Ct. 366, 444 A.2d 1217 (1982) in that the court failed to consider that the controlling date was not the date of the accident but was rather the date that the appellee breached its contractual obligation. We agree.

In Myers, we quoted from section 106(c) of the No-Fault Act, which provides:

(c) Time limitations on actions to recover benefits.— (1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefore may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

In interpreting this section we said:

It is clear by reading the language of section 106(c) that the legislature did not intend the limitations period to begin to run on the date of the injury as appellee [insurance company] suggests. Section 106(c) establishes a two year statute of limitations and a four year statute of repose. By creating an ultimate limitation of four years, the legislature obviously contemplated that the two year statute of limitations would begin to run at some point between that ultimate limitation date and the date of the injury. Therefore, the injury could not have been intended to be the triggering event for the limitations period.

Id., 298 Pa.Superior at 373, 444 A.2d at 1221. (emphasis added).

The Myers Court then went on to note that the cause of action at issue was predicated upon an alleged breach of the insurer’s contractual duty to pay no-fault benefits. As such, the common law rule is that the statute of limitations in an action for breach of contract does not begin to run until the occurrence of the breach, which is consistent with the general rule that a statute of limitations does not begin to run until the accrual of the cause of action. Turning to section 1009.103 the No-Fault Act, we saw that it contained this definition of “loss”:

“Loss” means accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and surviv- or’s loss.

The Myers Court then concluded:

We believe that “loss” as that term is defined in the No-Fault Act must be equated with the common law concept of breach of contract because until such breach occurs, the claimant does not know that he has incurred any economic detriment. Moreover, until a breach has occurred, no cause of action based on contract exists and, as we concluded in [Bond v. Gallen, 292 Pa.Superior Ct. 207, 437 A.2d 7 (1981) ], to hold that the limitations period begins to run prior to the existence of a cause of action would be unjust and unnecessary.

Id., 298 Pa.Superior at 374, 444 A.2d at 1221 (emphasis added).

Thus, under Myers, it is apparent that appellant’s “loss” for purposes of the No-Fault Act arose when appellee refused payment on April 26, 1979. Appellant’s suit, which was filed on May 18, 1979, was clearly timely under the Myers Court’s interpretation of the No-Fault Act, since the suit was filed within two years of the “loss” and not more than four years from the date of the accident, which was March 16, 1977. Accordingly, we find the lower court’s ruling to be contrary to Myers and, accordingly, we reverse.

Summary judgment is reversed and vacated and case is remanded for trial. We relinquish jurisdiction.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq. (Supp.1981-82). Hereinafter referred to as the No-Fault Act or the Act.

      . Because of our disposition of the above issue, we need not address appellant’s two remaining issues which were:
      (1) Whether the court below, in the absence of notice and an opportunity to be heard on the merits of appellee’s motion for summary judgment, abused its discretion and erred at law in entering summary judgment.


author: BROSKY, Judge:

text:
    458 A.2d 605
    Richard C. and Francella A. GOZON, Appellants, v. HENDERSON-DEWEY & ASSOCIATES, INC. Commonwealth Enterprise, Inc. and Benjamin L. and Beverly B. Taylor and American Pool Service Corporation and Barbara Deuber.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1982.
    Filed April 8, 1983.

      Jeffrey R. Lerman, Philadelphia, for appellants.
    Littleton W. Roberts, Wayne, for Henderson-Dewey, appellee.
    Reese A. Davis, Wayne, for Taylor, appellees.
    A. Bruce Niccolo, Philadelphia, for Amer. Pool, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   BROSKY, Judge:

This action was commenced by appellants, the Gozons, who seek damages for losses they allegedly suffered because of defects in a house which they purchased in 1978. Appellees, the Taylors, were the sellers of the house; Henderson-Dewey & Associates was the realtor. Henderson-Dewey joined appellee American Pool Service Corporation as an additional defendant.

The trespass complaint filed by appellants alleges that the named defendants misrepresented the condition of the house and an adjacent pool to them. Depositions of the parties were filed with the lower court and subsequently appellees filed motions for summary judgment which were granted. This appeal followed. We affirm.

It is axiomatic that summary judgment is to be entered only in a clear case. Dippold v. Amherst Insurance Co., 290 Pa.Super. 206, 208, 434 A.2d 203, 204 (1981).

Pa.R.C.P. 1035(b) states that summary judgment shall be entered 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.

In Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 244-45, 376 A.2d 247, 249 (1977), we explained that the burden of demonstrating that no genuine issue of material fact exists and that one is entitled to judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party.

We have thoroughly reviewed the record in this case with the above-stated principles in mind and conclude that summary judgment was properly entered.

The Gozons allege that the realtor and the Taylors misled them as to the extent of damage to the pool located on the property.

In a deposition Mr. Gozon explained that certain defects in the pool were obvious. In fact, he discussed the pool’s problems with the realtor who informed him that the realtor had been given an estimated figure of $1,675 as required to fix the problems seen by Mr. Gozon. Mr. Gozon has never alleged that the realtor had lied to him about the estimate. Instead, the Gozons are dissatisfied because they believe that the pool required much more extensive work. In fact, they paid a contractor approximately $12,000 to renovate it.

In his deposition, Mr. Gozon said that the Taylors made no representations to the buyers as to the structure of the pool.

The deposition testimony of Mr. Gozon indicates to us that appellants are not entitled to recover damages for the pool repairs, even assuming all facts alleged by them to be true.

The realtor did not tell them that he guaranteed that the pool could be fixed for $1,675; instead they were told that the realtor had received such an estimate. If the Gozons were concerned about the cost of the repairs it was incumbent upon them to investigate thoroughly the cost. They were certainly put on notice as to the existence of the defects.

In fact, paragraph 24 of the sales agreement entered into by the Taylors and Gozons provides that the Gozons understood that the pool was damaged and had a leak. The paragraph concluded, “It will be the responsibility of the buyer to have the pool fixed.”

Furthermore, as to the Taylors, Mr. Gozon said no representations were made about the pool by them.

In the recent case, Quashnock v. Frost, 299 Pa.Super. 9, 445 A.2d 121 (1982), our court was faced with the question of whether the vendor of real estate is liable for failing to disclose his knowledge of a termite infestation to an unknowing purchaser. We answered the question affirmatively, under the facts of that case. We explained that in an earlier case, Glanski v. Ervine, 269 Pa.Super. 182, 409 A.2d 425 (1979), this court adopted the view that when there is a serious and dangerous latent defect known to exist by the seller, then he must disclose such defect to the unknowing buyer or suffer liability for his failure to do so. See Id., 299 Pa.Superior at 17-19, 445 A.2d at 125, 128.

There is no allegation that the pool damage presented a dangerous condition, nor would we find it to be a latent defect. We find no duty to disclose by the Taylors or their agents.

We reach the same conclusion as to the alleged defects in the house. In his deposition, Mr. Gozon explained that there was leakage in the house. However, he also acknowledged that he had inquired about such a problem and was told it had been fixed. Although the problem recurred, and perhaps had not been adequately treated by the Gozons, we cannot find it to be a latent defect when evidence of it was apparent during the Gozons’ inspection of the house.

The biggest problem discussed by the Gozons involved what they term a vibration which could be detected when persons walked on the first floor of the house. When the Gozons noticed this, shortly after moving into the house, Mr. Gozon went to the basement and saw a cut in the joist beneath the living room. Further inspection indicated to him that the beams were in some way defective and, the Gozons allege, these defects caused the vibration and a “hump” which they saw in the first floor.

While we certainly recognize that the buyers, like the Gozons, of a house which turns out to be imperfect may be dissatisfied with their purchase, we cannot impose liability on the sellers in this case. In his deposition, Mr. Gozon conceded that he would not term the problems stemming from the defective joist as dangerous. Furthermore, he acknowledged that the condition of the joist was not concealed. In fact he apparently had little trouble finding it.

The Gozons inspected the house before purchasing it and were in the basement. We cannot impose a duty to disclose what even the buyer concedes is a non-dangerous, unconcealed defect.

Order affirmed.

SPAETH, J., concurs in the result.

      . Also an original defendant below, but not a party to this appeal is Commonwealth Enterprises, Inc. which company had conducted an inspection of the property on the Gozons’ behalf.


author: CIRILLO, Judge:

text:
    458 A.2d 607
    COMMONWEALTH of Pennsylvania ex rel. Madeline PUGH, Appellant,. v. Donald CALLAHAN, Jr.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1983.
    Filed April 8, 1983.

      Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellant.
    Hans Edward Solum, Jr., Havertown, for appellee.
    Before BROSKY, CIRILLO and MONTEMURO, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Delaware County, dated December 4, 1981, dismissing the appellant’s Petition for Support.

On March 24, 1981 the appellant, Madeline Pugh, filed a petition pursuant to 42 Pa.C.S.A. § 6701, et seq., seeking support for her minor child, Christopher Erslinger, from the appellee, Donald Callahan, Jr. The appellant alleged that the appellee was the father of Christopher who was born on March 1, 1977. The appellee denied paternity in an appearance before the Delaware County Domestic Relations Office on June 8, 1981. He likewise denied paternity before the Delaware County Court of Common Pleas on July 2, 1981. After declining to submit to a blood test, the appellee demanded a jury trial and was subsequently granted leave to file preliminary objections. On July 16, 1981 he filed a preliminary objection in the form of a demurrer, contending that the action was barred by the applicable statute of limitations. After argument before the Honorable Louis A. Bloom, the appellee’s preliminary objection was sustained and the appellant’s petition for support was dismissed upon a finding that the action was barred by the statute of limitations. This appeal followed.

The issue before this Court is whether the petition for support, filed on March 24, 1981, is governed by the six year statute of limitations contained in 42 Pa.C.S.A. § 6704(e), and is therefore timely, or whether the two year limitation period prescribed by 18 Pa.C.S.A. § 4328(b) (repealed) bars the petition which was filed some four years and two months after the birth of the child.

The Civil Procedural Support Law, amended in 1963, imposed a duty to support illegitimate children. However, the Supreme Court in Commonwealth v. Dillworth, 431 Pa. 479, 246 A.2d 859 (1968) determined that this amendment did not eliminate a defendant’s right to a criminal jury trial when paternity was at issue. Consequently, disputed paternity issues could be resolved by means of a criminal action for willful neglect to support a child born out of wedlock, or for fornication and bastardy, under the Penal Code of June 24, 1939, P.L. 872, 18 P.S. § 4104 et seq. The Civil Procedural Support Law was amended, effective June 27, 1978 to allow a six year statute of limitations for civil support proceedings and to repeal the criminal statutes relating to paternity. The Judiciary Act Repealer Act (JARA) then repealed the civil support law and reenacted it in substantially the same form in the Judicial Code.

The trial court determined that the amended limitation period could not be applied retroactively and thus the statute of limitations was two years in this instance and the action should have been commenced by February 28, 1979. We do not agree. In the case of Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982), the petitioner filed a complaint on April 4, 1979 for support of her illegitimate child born September 17, 1973, pursuant to 42 Pa.C.S.A. § 6701 et seq. The respondent denied paternity and raised the two year statute of limitations as a defense. The court concluded:

In summary, we hold that the repeal of the criminal statute of limitations never extinguished the civil right to support, but only the ancillary criminal enforcement remedy. We also hold that an action commenced after the effective date of 42 Pa.C.S.A. § 6701 et seq., is not barred by the running of 18 Pa.C.S.A. § 4323(b), repealed in 1978.

297 Pa.Super. at 278-79, 443 A.2d at 835.

By repealing the criminal procedure for the determination of paternity and support, the Legislature has indicated its intention to relegate support proceedings exclusively to the civil jurisdiction of the courts. The two year limitation period contained in the now repealed criminal proceeding has no bearing on the present matter. The support petition was filed after the effective date of the amendment providing for a six year limitation period and prior to the expiration of the appellant’s cause of action. Although the child was born when the two year limitation period was in effect, it is the time when proceedings are initiated that determines which law is controlling. See: Williams v. Wolfe, supra; also: Commonwealth ex rel. Cassarella v. Mason, 13 Pa.D. & C.3d 713 (1979).

Hence, we find that the appellant had until February 28, 1983 to commence this present action. The Order dated December 4, 1981 is reversed and the case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

Reversed and Remanded.

      . Section 6704(e) provides as follows:
      Limitation of actions.—All actions to establish the paternity of a child born out of wedlock brought under this section; must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgment by the reputed father.

      . Section 4323(b) (repealed) provides as follows:
      Limitation of action.—All prosecutions under this section must be brought within two years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, in which case a prosecution may be brought at any time within two years of any such contribution or acknowledgment by the reputed father.

      . As amended, by the Act of August 14, 1963, P.L. 872, No. 420, § 1, 62 P.S. § 2043.31 et seq.

      . Act of April 28, 1978, P.L. 202, No. 53, § 10(88), 42 Pa.C.S.A. § 6701 et seq.

      . This holding is not analogous to applying the new statute of limitations retroactively. Our courts have consistently held that where a vested right or a contractual obligation is not involved, "a statute does not operate retrospectively merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.” Creighan v. City of Pittsburgh, 389 Pa. 569, 575, 132 A.2d 867, 871 (1957); see also: Hargreaves v. Mid-Valley School District, 40 Pa.Cmwlth. 110, 396 A.2d 894 (1979). The appellee has no vested right to not be named the putative father in a support action; nor does one have a vested right in a statute of limitation or other procedural matters. Williams v. Wolfe, 297 Pa.Super. at 278, 443 A.2d at 835.


text:
    458 A.2d 610
    ASSOCIATES COMMERCIAL CORPORATION, a successor to Associates Financial Services Company, Inc., Appellants, v. L & C BUS LINES, INC., and Green Cab Company. ASSOCIATES COMMERCIAL CORPORATION, a successor to Associates Financial Services Company, Inc., Appellants, v. Louis M. SABERS, a/k/a L.M. Sabers and Dolores M. Sabers, his wife, individually and acting for and on behalf of L.M. Sabers, Inc.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed April 8, 1983.

      Reed J. Davis, Pittsburgh, for appellants.
    Richard E. Myers, Greensburg, submitted a brief on behalf of appellees.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in admitting evidence that appellee debtors had tendered payments to redeem a repossessed bus, and in valuing the bus. Because the existence of redemption payments is central to appellant’s cause of action, and because appellant’s remaining contentions lack merit, we affirm.

On May 3, 1978, appellant, a creditor, filed complaints in replevin against appellees, debtors, to regain possession of several vehicles, including the bus that is the subject of this appeal. On May 24, after appellant had established the probable validity of its claim at a hearing and posted a $75,000 bond, the court issued a writ of seizure. Acting under the writ, the sheriff seized the bus from appellees. On May 30, appellees answered the complaints. Within fifteen days of the sheriff’s seizing the bus, appellees tendered to appellants a sum sufficient to redeem the bus under the terms of the contract, but appellants refused the payment. Appellants sold the bus before trial. After the nonjury trial on April 16, 1979, the lower court held appellees were entitled to possession of the bus. Because appellant had already sold the bus, however, the court awarded appellees the estimated value of the bus, $10,000, less the sum appellees owed appellant and less appellant’s costs of retaking, storing, and repairing the bus for resale, a net award of $7,815.88. The lower court en banc denied appellant’s exceptions, prompting this appeal.

Appellant contends the lower court erred in admitting evidence that appellees had tendered the redemption payment within fifteen days of appellant’s sending notice of repossession. Appellant argues that this evidence was inadmissible because (1) appellees had not pled the fact of the redemption payment in new matter, and (2) the alleged redemption occurred after the date of appellant’s complaint in replevin, and was thus irrelevant to the action. We find the evidence properly admitted. The central questions at trial in a replevin action are whether the contract, deed, or other source of right relied upon grants the plaintiff a right to continued possession of the chattels, and, if so, whether the value of the plaintiff’s interest is greater or lesser than the value of the chattels so that the court may properly calculate reimbursement. See Brandywine Lanes v. Pittsburgh National Bank, 437 Pa. 499, 264 A.2d 377 (1970); Whiteman v. Degnan Chevrolet, Inc., 217 Pa.Superior 424, 272 A.2d 244 (1970); Gaspero v. Gentile, 160 Pa.Superior Ct. 276, 50 A.2d 754 (1947). Appellant, a creditor, asserted a right to possession under a contract on grounds that appellees had not made required “payments.” Complaints ¶ 7. Appellees answered that they had made sufficient payments to entitle them to retain possession. Answers ¶ 7. The parties’ contract, in addition to specifying installment payments, defining default, and affording appellant a right to repossess the bus upon appellees’ default, also afforded appellees a right to redeem the bus, even after appellant’s repossessing it, by paying or tendering a specified amount within fifteen days of appellant’s notifying appellees’ of the repossession. To sustain its cause of action for continued possession of the bus under the contract, appellant was thus required to prove that fifteen days after repossession had lapsed without appellees tendering the required payment. The complaint itself, through the terms of the contract, placed this issue before the court. Even though appellees tendered payment after the filing of appellant’s complaints, as would necessarily be the case under replevin procedure, see Pa.R.Civ.P. 1071-1075, evidence that they had done so was relevant and properly before the court.

Appellant contends also that the lower court incorrectly valued the bus. The record, however, supports the lower court’s findings of fact. A bus dealer, who had originally sold the bus in question, testified as to the current value of a bus of that make, age, and model—a 1975 International Harvester 72-passenger bus—in good condition. Appellant submitted a document showing the total cost of retaking, storing, and repairing the bus for resale was $96. The court could thus infer the bus was in reasonably good condition. Accordingly, we will not disturb the lower court’s findings of fact, and thus affirm.

Affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . Such a right to redeem after repossession must be made part of installment contracts for motor vehicles under the Motor Vehicle Sales Finance Act. 69 P.S. §§ 601-637.

      . We cannot agree that our holding in Lewis v. Spitler, 266 Pa.Superior 201, 403 A.2d 994 (1979), required appellees to have pled the redemption payment. In Lewis the defendant had failed to plead in new matter the fact of a payment to a third party, which payment, if pled and proven, might have constituted an affirmative defense to the plaintiffs proving its cause of action for a purchase money resulting trust. Unlike here, however, the "plaintiff’s cause of action was complete without reference to ... [the] payment.” Id., 266 Pa.Superior at 210, 403 A.2d at 998. This redemption payment, or the lack of it, on the other hand is central to appellant’s cause of action, and thus properly before the court under the complaint and answer. Accordingly, we agree with the lower court’s admitting the challenged evidence.

      . Moreover, even though appellant had resold the bus, it did not disclose the sale price.

      . Appellant contends also that the lower court erroneously ignored the effect of an alleged additional security agreement appellant held against appellees L & C Bus Lines, Inc. and L.M. Sabers, Inc. Appellant attached this security agreement to its complaint against L & C Bus Lines, Inc. and Green Cab Company. No. 3747 of 1978, Superior Court No. 169 Pittsburgh 1980, Exhibit E. Because appellant failed to raise this contention in its exceptions with sufficient specificity to allow the lower court to rule intelligently upon it or the opponent to prepare himself adequately in advance of argument to address it, the issue is waived. Pa.R.Civ.P. 1038(d); Canada Dry Bottling Co. v. Mertz, 264 Pa.Superior 480, 400 A.2d 186 (1979).