author: BROSKY, Judge:

text:
    450 A.2d 710
    William T. EVANS and Sandra Evans, husband and wife, Appellants, v. Paul L. THOMAS and Earl A. Thomas, individually and as co-partners, trading as Thomas Brothers Natural Gas Company.
    Superior Court of Pennsylvania.
    Argued June 10, 1980.
    Filed Sept. 10, 1982.
    Petition for Allowance of Appeal Denied Feb. 8, 1983.

      Edward F. Silva, Philadelphia, for appellants.
    William G. Ross, Bethlehem, for appellees.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.

   BROSKY, Judge:

The appellants, William and Sandra Evans, brought a cause of action against the appellees, Paul and Earl Thomas individually and as co-partners trading as Thomas Brothers Natural Gas Company, concerning a tumultuous explosion that took place in their residence, when William Evans struck a match to relight an extinguished pilot light in a propane gas hot water heater. As a result of the explosion, William Evans was severely burned. The Evanses contend that the explosion occurred as the result of the Thomases defective product. They assert their claim pursuant to Section 402(a) of the Restatement of Torts, Second. The jury awarded the verdict to the Thomases. The Evanses moved for a new trial. They appeal from the denial of that motion.

The Evanses assert that the verdict was against the weight of the evidence and that the trial court erred “in allowing . . . [Paul] Thomas to render an opinion based on the hypothetical questions posed by .. . [Thomas’] counsel and in refusing to strike the opinion testimony of [Paul] Thomas” (Appellants’ brief at page 3). We affirm.

In Antolik v. Kerstetter, 278 Pa.Super. 55, 56, 419 A.2d 1353, 1353 (1980), we said:

Although the province of this court is generally limited with respect to the facts to a determination of whether there is evidence to support the verdict, we may grant a new trial on the grounds that the verdict is against the weight of the evidence if the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977) (allocatur refused) and the other cases therein cited.

The facts involved in this case are as follows. Sandra Evans testified that in June of 1973, the Evanses decided to use a heater which could employ propane gas to heat their water. In August, she called the Thomases in order to purchase propane gas. A tank of gas was delivered on August 4 and placed outside their cellar door, underneath a porch. On August 7, William Evans, using the instructions provided by the Thomases, lit the pilot light on the heater which was housed in their cellar. The couple had hot water for several hours. However, the heater eventually stopped working. Later that day, at about 5 p. m., William Evans attempted to relight the heater, again using the instructions provided by the Thomases. An explosion resulted from Mr. Evans’ efforts. He was severely injured. Mrs. Evans, who was on the first floor of the house, was also injured, though not seriously.

The record discloses that the essence of the Evans’ argument was that the gas was inherently dangerous and that as such the Thomases were obliged to take reasonable steps to protect the buyer, specifically, that the gas should have been and was not odorized. Thomases argues that the gas was odorized.

William Evans testified that when he went to relight the pilot light on the hot water heater that he did not smell any odor. Other witnesses were presented by the Evanses who indicated that at or near the time of the incident, that they had smelled no gas odor. The Evanses argued that the lack of odor proves the existence of a defect. The Thomas-es, through Paul Thomas, presented lengthy testimony concerning the odorization of the gas cell. The testimony indicated, at length, the process by which gas is odorized by the refiner and by the Thomas Brothers Natural Gas Company. However, Paul Thomas testified that the tank in which the gas in this particular incident was stored was picked up at the Evans’ home shortly after the incident and put into service elsewhere. He stated he therefore had no knowledge of the condition of this particular tank and whether the gas contained therein had been odorized.

Our Supreme Court adopted the § 402A of the Restatement of Torts Second in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

Section 402A reads as follows:

Section 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to the liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

In Pegg v. General Motors Corp., 258 Pa.Super. 59, 70, 391 A.2d 1074, 1079 (1978), we said:

The purpose of the civil law, specifically of § 402A, has nothing to do with defining a given crime, or with proscribing punishment proportional with that crime. Rather, as has been discussed, it is to ensure that a manufacturer does not expose persons to defective products, the accomplishment of this purpose being sought by providing that if the manufacturer does expose persons to defective products, it will be liable to compensate them for their resulting injuries.

Strict liability under Section 402A requires the plaintiff to prove that the product was “in a defective condition” and that the defect caused the injury. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) (plurality opinion). However:

The seller of a product is not responsible for harm caused by such inherently dangerous products such as whiskey or knives that despite perfection in manufacture design or distribution can cause injury.

Id., 462 Pa. at 95, 337 A.2d at 899. Finally, “Whether a product is inherently dangerous is a function of the extent to which the dangers are technologically unavoidable and the public need for the product great. See Incollingo v. Ewing, supra, 444 Pa. at 287-288, 282 A.2d at 219 [444 Pa. 263, 282 A.2d 206 (1971) ]. Prosser, supra, [Law of Torts], § 99 at 660-661.” Pegg, supra, 258 Pa.Super. at 75, 391 A.2d 1082.

We do not find any Pennsylvania case in which our courts have ruled upon the weight to be given evidence introduced by a defendant in a strict liability action in tort concerning its similar actions with regard to a product. However, we are satisfied that under the circumstances of this case that the conflict in testimony was properly submitted to the jury and that its decision was not so “contrary to the evidence as to shock one’s sense of justice.” Antolik v. Kerstetter, supra, 278 Pa.Super. at 56, 419 A.2d at 1353.

Next, the Evanses assert the trial court erred in allowing Paul Thomas “to render an opinion on the hypothetical questions posed by his counsel and in refusing to strike the opinion testimony of Thomas.” (Appellant’s brief page 2). In Ranieli v. Mutual Life Ins. Co. of America, 271 Pa.Super. 261, 413 A.2d 396 (1979), we said:

The continued use of the hypothetical question placed to an expert witness has occasionally been assailed as anachronistic and confusing, McCormick, Evidence § 16 (1954), but it remains a viable and accepted method of allowing the expert witness to render an opinion based on facts not known to him personally. See Houston v. Canon Bowl, Inc., 443 Pa. 383, 278 A.2d 908 (1971); Abbott v. Steel City Piping Co., 437 Pa. 412, 263 A.2d 881 (1970); Gordon v. State Farm Life Insurance Co., 415 Pa. 256, 203 A.2d 320 (1964). In forming the hypothetical, however, it is necessary that all information contained therein be properly of record. See Houston v. Canon Bowl, Inc., supra.; McKenzie v. Cost Brothers, Inc., 260 Pa.Super. 295, 394 A.2d 559 (1978); Commonwealth v. Pilosky, 239 Pa.Super. 233, 362 A.2d 253 (1976); Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 357 A.2d 635 (1976); 2 Wigmore, Evidence 3d ed. § 682 (1940). See generally 56 A.L.R.3d 300 § 6[a] (1974). Absent this record foundation, the information proffered in hypothetical questions could be so manipulated as to yield almost any response, and in so doing, seriously confuse the finder of fact. The expert’s opinion is properly admissible to illuminate obscure and obtuse areas of knowledge. The hypothetical question should be employed to facilitate this end, focusing the witness’ expertise onto the narrow issue under consideration; its purpose is not to further obfuscate the complex evidentiary labyrinth through which the finder of fact must carefully tread. Of course, such record evidence upon which the expert relies may be based upon personal examination, the assumed truth of the testimony of other witnesses, or upon a combination of these sources. Hussey v. May Department Stores, Inc., supra. The pivotal question in the case at bar is thus whether the two contested pieces of information were properly of record.

The question which was asked Paul Thomas follows:

Q. Assume those facts that you have heard—and I don’t want to repeat everyone of them over this last two days, but the facts that you have heard concerning this case— that a delivery was made at the home of the Evanses and assume that an explosion occurred and that Mr. Evans did not smell the propane gas, and further assume that this product that you were using at the time had been purchased from the Atlantic Richfield Company and/or the Sun Oil Company in a 10,000 gallon truck, and assume further that this truck had been used on numerous occasions before the pickup of the deliveries that we’re concerned with, and assume that this truck delivered the propane gas to your Hometown Office Supply Area and that it was deposited in a 30,000 gallon tank, and assume that that tank had been used for several years—nine years I believe you testified—and further assume that all of the invoices that you have checked and that you have concerning purchases from June, July, and August of 1973 indicate that you have purchased liquid propane which has ethyl mercaptan in it in quantities of 1 pound per 10,000 gallons and IV2 pounds per 10,000 gallons, and assume further that the propane was taken from the 30,000 gallon tank and placed into a small tank, and then assume further, sir, that the propane gas was delivered, and assume further that the gas was taken and placed in a tank designated at Tank No. 20137 and that that tank belonged to you and was a 100-pound capacity, and assume that it was delivered to the Evanses on August 4th of 11973, do you have an opinion, with reasonable certainty, that that tank of gas contained an odorant known as ethyl mercaptan in accordance with the regulations that you were required to follow in the industry?

Paul Thomas was asked to answer this question viewing it from his knowledge of what had occurred on August 4,1973, the day the tank of gas was delivered, and from his knowledge of the events which transpired on August 7, 1973, the date of the explosion. He responded affirmatively to the question with respect to both dates.

The trial court states in its opinion:

Plaintiffs strenuously contend that defendant Paul Thomas’ opinion elicited by the hypothetical question should have been stricken because Mr. Thomas stated on cross-examination that he had no personal knowledge as to the condition of the specific tank or whether there was ethyl mecaptan in it on the date of the explosion. Such an argument begs the question. It was precisely because Mr. Thomas did not have such personal knowledge that we permitted him to render an expert opinion on whether the tank was odorized based on his knowledge of the acquisition and delivery process at about the time of the explosion.
We permitted plaintiffs’ expert witness to express his opinion based on the evidence developed during the plaintiff’s case and we permitted defendant to express his expert opinion on the facts developed on both sides of the case. We find no error in permitting the opinion of either expert to go to the jury.
Counsel had the opportunity during cross-examination to raise questions for the jury’s consideration relating to whether all material facts had been covered in the hypothetical question. Gordon v. State Farm Life Insurance Co., 415 Pa. 256, 203 A.2d 320 (1964).

(Trial Court opinion at page 7.)

The Evanses argue and we agree that hypothetical question clearly omits facts. It assumes the truck used to pick up the gas from the refinery had been used previously. It assumes the gas was placed in a 30,000 gallon tank. That the gas was pumped from a 30,000 gallon tank and that the Evanses did not smell the propane gas. The record indicates that had the truck been used previously, a residue of the substance used to odorize the gas would have remained in the truck and served to odorize the gas delivered to the Evanses. This same phenomenon occurs when tanks are used successive times. However, the Evanses clearly pointed out to Paul Thomas on cross-examination that the truck may have been used for the first time to haul the gas which exploded in the Evanses house, and that Thomas had no personal knowledge that the gas was pumped from a 30,000 gallon storage tank. The record also indicates that there was testimony by the Evanses and two other witnesses, David Hiles and Jessie Hiles, that they could not smell propane gas shortly before or near the explosion.

In O’Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 286-289, 423 A.2d 1251, 1259-1260 (1980), we said:

The hypothetical put to Mr. Karam clearly omits the facts which the Sewer Authority alleges, but we do not think this omission was fatal to the question’s validity. The law on hypothetical questions in Pennsylvania also states that “[ijf opposing counsel are of the opinion that material facts are not included in a hypothetical question, they may incorporate those facts in questions asked on cross-examination, and may also frame questions involving a consideration of facts which they contend are established by the evidence: Albert v. Philadelphia R.T. Co., 252 Pa. 527, 532, 533, 97 A. 680 (1916).” Rudolph v. Shannopin Coal Co., 142 Pa.Super. 389, 18 A.2d 329 (1940). See also Gordon v. State Farm Life Ins. Co., 415 Pa. 256, 203 A.2d 320 (1964); Price v. Yellow Cab Co. of Phila., 443 Pa. 56, 278 A.2d 161 (1971). We cannot say that it was error to allow Mr. Karam to answer the question as put to him, particularly where the Sewer Authority could have supplied the missing facts on cross-examination.

We believe that our analysis presented in O’Malley, supra, is clearly applicable to the instant case. We are unable to say that it was error to allow Paul Thomas to answer the hypothetical question as put to him, where the Evanses could have and, in part did, provide Thomas with missing and inconsistent facts on cross-examination. Accordingly, we affirm the order of the trial court.

Judgment affirmed.

      . In Evans v. Thomas, 245 Pa.Super. 626, 372 A.2d 436 (1977), we affirmed the decision of the trial court refusing to permit the Thomases to join additional defendants.

      . The evidence sought to be introduced by the Thomases reflected their company practice concerning the odorization of natural gas products. In DeMarines v. KLM Dutch Airlines, 580 F.2d 1193 (3rd Cir. 1978), that court held that proof of a record of absence of claims by other passengers related to an alleged accident which occurred during a flight of the airline. See also, Walker v. Trico Mfg. Co., Inc., 487 F.2d 595 (7th Cir. 1973); Becker v. American Airlines, Inc., 200 F.Supp. 243 (S.D.N.Y.1961); Darrough v. White Motor Co., 74 Ill. App.3d 560, 30 Ill.Dec. 467, 393 N.E.2d 122 (1979); cases cited in Annotation, 31 A.L.R.2d 190 (1953 Supp.); C. McCormick, Law of

        Evidence, § 200 (2d ed. 1972); McSparran v. Pennsylvania Railroad Company, 258 F.Supp. 130 (1966). Compare: Walker v. Trico Mfg. Co., 487 F.2d 595 (7th Cir. 1973). However, in Hessler v. Hillwood Mfg. Co., 302 F.2d 61 (6th Cir. 1963), that court held that the history of the general “excellence” of defendant’s product is “not relevant on the issue” of whether a particular product has “been defectively manufactured.” Our Supreme Court has held that custom and practice prevailing in a particular industry may be admitted into evidence in order to disprove negligence. Jemison v. Pfeifer, 397 Pa. 81, 152 A.2d 697 (1959); Marin v. Nadick, 287 Pa.Super. 37, 429 A.2d 707 (1981).
      We note however, that no specific objection was made regarding Paul Thomas’ testimony describing the custom and practices of his company and the odorization of his product. Therefore, we consider this issued waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

      . It is clear that the issue regarding the existence of a defect was properly before the jury. In Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3rd Cir. 1969) that court stated:
      Since appellee did not introduce substantial evidence relevant to appellant’s negligence in the manufacture or design of the piler, we must first determine whether it is the law of Pennsylvania, as appellee asserts, that a plaintiff in a strict liability case can establish a “defective condition” within the meaning of Section 402A by proving that the product functioned improperly in the absence of abnormal use and reasonable secondary causes. [Footnote omitted.] That this is the law appears evident from the Pennsylvania Supreme Court’s decision in Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968). There, plaintiff brought suit under Section 402A for personal injuries suffered when a bottle allegedly exploded in his hand. He denied causing the explosion by striking the bottle in any way, and he attempted to present expert testimony concerning the cause of the explosion. The court held that such testimony was proper, albeit unnecessary, since “[b]oth plaintiff and Leon Dorsey testified the bottle exploded spontaneously. Their testimony alone, given the fact that an explosion was not a physical impossibility, was sufficient to make the issue a jury question....” [Footnote omitted.] 430 Pa. at 184, 242 A.2d at 235.
      The Evanses testified they had smelled no gas prior to the explosion. They presented several witnesses, David Hiles and Jessie Hiles, who testified that they did not smell the odor customarily associated with propane gas.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    450 A.2d 715
    Margaret BARTLE, Appellant, v. Joseph BARTLE.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1981.
    Filed Sept. 24, 1982.

      Wesley C. Allen, Philadelphia, for appellant.
    Neil Carver, Philadelphia, for appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, Family Division, and involves appellant’s appeal from an Order of the court below dated September 3, 1980 by which the court granted appellee’s petition for reconsideration of a previous order, vacated the previous order which had granted custody of the parties’ minor child to the appellant, and transferred custody of said minor child to the appellee.

Appellant is the mother of the minor child and appellee is the child’s father. On August 2, 1978 the appellant filed a habeas corpus petition with the court below seeking custody of the child. After a full hearing the court entered an order on December 19, 1978 granting custody of the child to appellant. The appellee then filed a Petition for Reconsideration of the order which was denied on January 12, 1979. On that date the appellee filed a timely appeal from the original order of December 19, 1978 to this Court. On May 7, 1979, the appellee filed another Petition for Reconsideration with the court below and changed counsel. On February 13,1980 a hearing was held on appellee’s second Petition for Reconsideration and on September 3, 1980 the court entered an order awarding custody of the child to the appellee. The appellant appealed the order of September 3, 1980 on October 2, 1980. On April 16, 1981 the appellee discontinued his appeal to our Court.

Appellant’s first argument is that the order of September 3,1980 transferring custody of the minor child to the appellee should be reversed because the court below lacked jurisdiction to enter that order since the appellee had appealed the original order of December 19, 1978 and the matter was on appeal at the time that the subsequent order was entered. Because we agree with this contention, we need not consider appellant’s other arguments and will reverse the Order of September 3, 1980 and reinstate the Order of December 19, 1978.

The record reveals that appellant’s attorney had objected to the subsequent hearing because the matter was on appeal. The court responded that it understood that “the appeal was withdrawn”. However, such was not the case and the court below had been misinformed as to the status of the appellee’s appeal of its original order. This meant that appellee was permitted to enjoy the “best of both worlds” at the February 13, 1980 hearing in that he was permitted to have the issue of custody being decided by both the court below and our Court simultaneously. Presumably, the appellee would then decide which decision best suited his interests and would choose to abide by that result. Such a situation is manifestly unfair and should never be tolerated by our appellate courts. This is so even if the appellee had labored under the false impression that his appeal had been withdrawn. Once a litigant takes an appeal it is not too much to ask that he remain aware of the status of that appeal whether or .not he chooses to retain new counsel and that he accurately inform new counsel of the status of the appeal or have his new counsel determine its status.

Once an appeal has been taken from its order the trial court loses jurisdiction over the subject matter of the case until the appellate court rules. Pa.Rules Appellate Pro. 1701(a); Weise v. Goldman, 229 Pa.Superior Ct. 187, 323 A.2d 31 (1974); Commonwealth ex rel Logan v. Toomey, 241 Pa. Superior Ct. 80, 359 A.2d 468 (1976). Although Pa.Rules Appellate Pro. 1701(b)(3) sets forth an exception to the general rule it also sets forth certain, specific procedural mandates with regard to such exceptions none of which were followed in this case.

Because the court below did not have jurisdiction to hear the case, the Order of September 3, 1980 is reversed and the Order dated December 19, 1978 granting custody to the appellant is reinstated.


author: WATKINS, Judge: HESTER, Judge, dissenting:

text:
    450 A.2d 716
    COMMONWEALTH of Pennsylvania v. Raymond James WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1981.
    Filed Sept. 24, 1982.

      John H. Corbett, Jr., Assistant Public Defender, Pittsburgh, for appellant.
    Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the denial of defendant’s post conviction petition by the Court of Common Pleas of Allegheny County. The defendant had been convicted by a jury of voluntary manslaughter relative to the death of Shahonda Jackson, a minor child for whom he was babysitting.

On January 21, 1976 the defendant took the decedent to Mercy Hospital where she died. Officers Holliday and Lucia were present at the hospital at the time the defendant brought the child there. The officers were there on an unrelated matter. While at the hospital the officers learned from hospital personnel that the child had died under unnatural circumstances. They then reported the death to the homicide section of the police department and homicide officers were dispatched to the scene.

After they had reported the situation to the homicide department, the defendant approached the Officers and asked for a light for his cigarette. He was in a visably shaken condition at the time. The defendant then began to tell Officer Holliday about his involvement in the child’s death. The officer then asked the defendant, “Do you want to talk about it?” The defendant answered “Yeah”. He was then taken by the officers to a small room where he was questioned about the incident. During the questioning, the defendant admitted that the child had fallen down the steps because he had “spanked her too hard”. During the questioning the homicide detective arrived at the hospital. The defendant was then taken to the scene of the child’s injuries and questioned further about the incident.

At trial the defendant’s attorney never moved to suppress the defendant’s admissions relative to his involvement in the child’s death. His admissions were a crucial part of the Commonwealth’s case against him. He now claims that his counsel was ineffective in failing to move to suppress the aforesaid admissions on the grounds that he had not been provided with Miranda Warnings prior to the questioning. We agree and remand the case to the court below for a new trial.

Counsel’s assistance is deemed to be constitutionally effective if the particular course of action or non-action chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1978). In the instant case no reasonable basis existed for the defendant’s trial counsel’s failure to file a suppression motion seeking to suppress the defendant’s admissions. During the post conviction hearing defendant’s trial counsel testified that he did not file such a motion because he felt that a free and full disclosure of the incident would show that the defendant was innocent and blameless. Under the facts of this case it is impossible for us to see how he could have reasonably concluded such to be the case. Furthermore, he could have filed the suppression motion and then, if it was denied and the statements admitted against the defendant anyhow he still could have made that same argument before the jury. Therefore, we find that defendant’s counsel had no reasonable basis for failing to file the suppression motion.

Defendant’s counsel also claimed that he believed that it would be futile to file the suppression motion because the statements were admissible. Where a claim of inadmissibility would not have been frivolous and there is no strategic reason offered to explain the failure to pursue a claim of inadmissibility, counsel is ineffective in the absence of any extenuating circumstances. Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977). The mere failure of trial counsel to file a nonfrivolous claim does not necessarily constitute ineffective assistance of counsel. Commonwealth v. Gaston, supra. However, in the instant case the failure of defendant’s counsel to file a suppression motion did constitute ineffective assistance of counsel since Miranda Warnings must be given to an individual before he is questioned while in custody or when the focus of a criminal investigation centers on him. Commonwealth v. O’Shea, 456 Pa. 288, 318 A.2d 713 (1974).

In our case the officers had been alerted to the fact that the child had died under unnatural circumstances and they, therefore, had reason to believe that a crime had been committed. In response to this they notified the homicide detectives of their police department. At that point the defendant approached the officer, made the officers aware of the fact that he was with the child at the time of the incident, and began to talk about his involvement in the child’s death. He was then asked “Do you want to talk about it?”, to which he responded “Yeah”. At that point the defendant was taken to a small room where he gave incriminating statements to the police. Under these circumstances we hold that the filing of a suppression motion would not be a futile act. In the absence of any further evidence which might be adduced during a suppression hearing it appears that a suppression order may well be warranted. In any event, the failure to file such a motion had no reasonable basis and therefore, the defendant was denied the effective assistance of counsel at his trial.

Order reversed and case remanded for a new trial.

HESTER, J., files a dissenting statement.

HESTER, Judge, dissenting:

I respectfully dissent. I would affirm on the opinion of Judge Papadakos of the court below.


author: JOHNSON, Judge:

text:
    450 A.2d 718
    William H. BARBER v. HARLEYSVILLE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed Sept. 10, 1982.

      Brian P. Sullivan, Norristown, for appellant.
    Robert M. John, Hatboro, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

This case presents the issue of whether or not an insurer (Appellant) must defend the insured (Appellee) against a counterclaim in a suit filed by Appellee to collect an unpaid debt from Appellee’s customer.

Appellee was covered by Appellant’s insurance policy which contained the following defense clause:

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
Coverage A. bodily injury or
Coverage B. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.

Because Appellee, a contractor, was unable to collect the balance on his customer’s account, he filed a suit before the American Arbitration Association (A.A.A.), according to the compulsory arbitration terms of the construction contract. The customer, in response, filed an answer and a counterclaim against Appellee. The answer alleged, first, that the customer’s property had been damaged in an amount of approximately $27,000.00, and, second, that the damage was the direct result of Appellee’s negligence and of his failure to provide adequate protection to prevent the damage. The counterclaim demanded damages of $30,000.00, plus interest, because Appellee “breached the agreement by failing to perform, or improperly performing, certain work specified in the agreement.”

When Appellant refused to represent Appellee before the A.A.A., Appellee filed a suit in equity which requested the court to direct Appellant to defend Appellee against the counterclaim. After the pleadings had been closed, Appellee moved for summary judgment, which the court granted. This is an appeal from the order granting summary judgment for Appellee.

Before we proceed to consider Appellant’s arguments, we must articulate some of the principles by which we must be guided in reviewing an appeal from an order granting summary judgment. First, a summary judgment should be granted only if the case is clear and free from doubt. Giannini v. Carden, 286 Pa.Super.Ct. 450, 453, 429 A.2d 24, 26 (1981) (citing McFadden v. American Oil Co., 215 Pa.Super.Ct. 44, 257 A.2d 283 [1969]). The moving party has the burden of proving that “no genuine issue of material fact exists.” Giannini v. Carden, 286 Pa.Super.Ct. at 454, 429 A.2d at 26.

Appellant argues, first, that the counterclaim is not covered by the above-cited defense clause because the counterclaim is based upon a breach of a contract for performance, and the defense clause does not cover claims in assumpsit. Appellant’s second argument is that it is not clear that the counterclaim refers to property damage; but, even if it does, the property damage must have been caused by an “occurrence.” The policy defines “occurrence” as:

an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.

As we consider Appellant’s first argument, we note that the counterclaim alleges that Appellee breached the agreement with the customer by “improperly performing” the work. This language certainly suggests that Appellee’s negligence is an issue in the counterclaim despite the phrase, “breached the agreement.” The case may develop so that Appellee’s negligence is the issue to be tried. Our supreme court has stated, “[w]hen .. . the complaint comprehends an injury which may be within the policy, we hold that the promise to defend includes it.” Cadwallader v. New Amsterdam Casualty Company, 396 Pa. 582, 590, 152 A.2d 484, 488 (1959).

This leads us to Appellant’s second argument. Since negligence frequently involves an accident, the occurrence of which was neither expected nor intended by the actor, Appellee’s negligence would be an “occurrence” under the definition cited above. Appellee’s failure to perform and/or his improper performance could easily have been both accidental and neither intended nor expected by Appellee. Since the counterclaim clearly states that the damages directly resulted from Appellee’s allegedly,improper performance concerning certain modifications to a loading dock, we have no doubt that the counterclaim involves property damage. Because the property damage resulted from Appellee’s alleged failure to perform or improper performance, the claim could easily involve an accident that Appellee neither expected nor intended to have occurred. Since the counterclaim “may be within the policy” in the instant case, Appellant must defend the counterclaim in light of Cadwallader. Thus the summary judgment was properly granted for Appellee.

For the foregoing reasons, the order of April 27, 1981, is affirmed.

      . The answer explicitly states, “respondents suffered extensive damage to tangible, personal property .... ” In light of the foregoing allegation, we would make a mockery of the law to hold that because the counterclaim does not employ the phrase, “property damage,” the defense clause does not cover the counterclaim.


author: POPOVICH, Judge:

text:
    450 A.2d 720
    C. Craig RIFE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1981.
    Filed Sept. 10, 1982.

      Catherine M. Harper, Philadelphia, for appellant.
    Peter J. Hoffman, Philadelphia, for appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County, per Calvin T. Wilson, Judge, granting appellee’s, State Farm Mutual Insurance Co.’s, cross-motion for summary judgment. We affirm.

This case presents this Court with another opportunity to unravel and interpret the scope of Pennsylvania’s No-Fault Insurance Act (40 P.S. § 1009.101 et seq.), and the seemingly myriad of (sometimes unusual) factual situations which have arisen in its application.

Instantly, as conceded by the appellant, C. Craig Rife, the facts are undisputed, the only stumbling block being the applicability of the law to the facts. On August 7, 1978, a few minutes after 8:00 p. m., Lt. Charles Schlernitzauer was in the VIP parking lot at Philadelphia International Airport issuing a ticket for an illegally parked vehicle. Before the officer had completed writing the ticket, appellant arrived, “began to scream and shout .. . and .. . repeated several times that you are not giving me no god damn ticket.” (N.T. 8/16/78 at 1) This raucous behavior by the appellant escalated to the point where he began to strike the officer, “once in the face a couple [of] times, and then in the body.” Id. at 2. Appellant also grabbed the ticket book and began to tear it. When the officer tried to retrieve the book, appellant struck him a couple of more times in the body. The officer reacted by drawing his blackjack, and, then, the officer “struck Rife twice up around the shoulder and the head area. He dropped the ticket book and pushed and struck [the officer] a couple more times, and he ran to his car, got in and locked the door.” Id. at 3. The appellant pulled out from his parking space with the officer in pursuit—prior thereto, the officer had radioed for assistance. As appellant sought to leave the lot, an Officer Mongelli had to jump out of the way of the moving vehicle to avoid being struck. At this point, two shots were fired by Officer Mongelli at the left rear tire of appellant’s vehicle to retard his movement. However, the appellant managed to elude the bullets, exited the lot, jumped a curb in the process and then made a right hand turn, going the wrong way, on to the entrance road to the airport.

The scenario continues with the appellant making a second right hand turn, jumping a curb and a traffic island and driving through a four-foot high chain link fence into a parking area reserved for rental car companies. Because of the officer’s call for assistance, Officer Almond was monitoring the progress of the chase and had stationed himself in an area where appellant was reported heading. After the appellant drove through the fence, Officer Almond saw the vehicle coming directly at him. The officer held his hands up in a manner directing the appellant to stop. However, the appellant failed to slow down. The officer responded by “pull[ing his] revolver and jumppng] to the side to keep from being hit from the vehicle and fired three shots in the right front window.” Id. at 24. Thereafter, the vehicle ran into a barricade and appellant’s attempt to drive over the barrier proved futile. At this point, Lt. Schlernitzauer arrived on the scene and had to resort to breaking the windshield of appellant’s vehicle to get him out. When the police noticed that appellant had sustained a bullet wound to his right arm, he was transported to the hospital for treatment.

Appellant, as a result of injuries incurred in the course of operating the vehicle, filed a claim with the appellee insurance company seeking recoupment of the monies expended for “procuring medical treatment for his injuries.” Appellee refused to honor the claim. In response thereto, appellant filed a Complaint in Assumpsit, in which he alleged, inter alia:

“5. On the 7th day of August, 1978, plaintiff[-appellant] was lawfully operating his wife’s motor vehicle[, which was insured by the appellee,] with her permission when he was involved in an accident which resulted in injuries being sustained by plaintiff which injuries required medical, surgical and hospital care.
******
7. Plaintiff has complied with all conditions and precedents required to be complied by him according to the terms of said policy [issued by the appellee].
8. Defendant [-appellee] has refused to pay said medical bills or any part thereof and continues to refuse to pay said medical bills or any part thereof.
* * * sjc * *
WHEREFORE, plaintiff demand[ed] judgment against the defendant in an amount less than $10,000.00.” (See Appellant’s “Complaint in Assumpsit,” Points 5, 7 & 8)

The appellee’s, in its Answer and New Matter, responded that “[t]he injuries received by [appellant] . .. [were] not the result of a motor vehicle accident compensible under either the No-Fault Act or the policy in question.” (See Appellee's “Answer” and “New Matter,” Points 5 & 12) Thereafter, appellant filed a Motion for Summary Judgment, in which he alleged that his injuries were “not excluded from coverage by the terms of the insurance policy.” Appellee, likewise, submitted a similar motion, asserting that appellant’s injuries were not “accidentally sustained” and that said injuries did not “arise out of the use of a motor vehicle.” On June 3, 1980, the lower court denied appellant’s Motion, but on the same date judgment was entered in favor of appellee on its cross-motion.

On appeal, the issue posited is whether, in accordance with the dictates of Pennsylvania’s No-Fault Act, the injuries sustained by the appellant are compensable under the terms of the insurance policy issued by the appellee? We think not.

Under the insurance policy in question, the “No-Fault Coverage” section provides that:

“We will pay in accordance with the No-Fault Act for bodily injury to an insured, caused by accident resulting from the maintenance or use of a motor vehicle as a vehicle.
1. Medical expenses: Reasonable charges incurred for necessary products, services and accomodations needed for:
a) professional medical, dental, hospital and nursing services for diagnosis, care and recovery. It includes remedial religious treatment by a recognized method of healing.
b) emergency health services provided by a person accredited by an emergency health system.
c) vocational rehabilitation. These are services by a state approved facility needed to reduce disability and to restore the physical, psychological, social and vocational functioning of an insured ...”

Appellant urges that when the preceding is read in conjunction with Section 1009.201 of the No-fault Act, i.e., that “any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this Act,” it is “clear” that his injuries are compensable under the letter and spirit of the No-fault Act. We take umbrage, given the particular facts of this case, with such a liberal interpretation of the Legislature’s intention in promulgating the statute in question. In fact, to sanction the claim of the appellant in the instant case would be to affix the imprimatur of this Court to the manipulation of a statute that was not, at least from our reading of the statutory and case law on the subject, contemplated by the legislators.

Our examination begins with noting that the Legislature’s purpose in enacting the No-fault Act was to provide, “. . . a State-wide system of prompt and adequate basic loss benefits for motor vehicle accident victims . .. . ” 40 P.S. § 1009.102(b) (Supp.1982-83). In so doing, the elected officials sought, in part, “the maximum feasible restoration of all individuals injured ... in motor vehicle accidents on the Commonwealth highways . . .. ” (Emphasis added) Id. at § 1009.102(a)(3). As is germane to this case, “victim” is defined as: “an individual who suffers injury arising out of the maintenance or use of an automobile.” In the same definitional section of the No-fault Act, the term “injury” is held to mean: “accidentally sustained bodily harm to an individual and that individual’s illness, disease, or death resulting therefrom.” Id. at § 1009.103. Based on the aforesaid, we take issue with the contention by the appellant that his injury (bullet wound) arose “out of the maintenance or use of an automobile.” Also, we find appellant’s entitlement to the no-fault benefits under the insurance policy is precluded, since his injury was not sustained accidentally. In making this determination, we must be cognizant that construction of the No-fault Act must be co-extensive with both law and logic, while at the same time eschewing the absurd or unreasonable result. See Commonwealth v. Allied Building Credits, Inc., 385 Pa. 370, 380, 123 A.2d 686, 692 (1956); see also Commonwealth v. Graeff, 296 Pa.Super. 480, 442 A.2d 1153 (1982); Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981). In deciding if appellant’s injury “arose out of the maintenance or use of the motor vehicle,” we look to Day v. State Farm Mutual Insurance Co., 261 Pa.Super. 216, 396 A.2d 3 (1979), which, albeit not on all fours with the case at bar, is instructive.

In Day, appellee was involved in a collision with a truck operated by a Mr. Williams. After the accident, both drivers alighted from their vehicles and engaged in an argument in which appellee sustained an injury, a broken ankle. Appellee, unable to collect against Williams’ insurance company, brought suit against his carrier, State Farm Mutual Insurance Co., appellant. This Court, in reversing the trial judge’s decision to vacate an arbitrator’s award in favor of the appellant, did so on the following grounds:

“The real issue in this case involves the instrumentality used to cause the injury, not whether it was intentionally or accidentally inflicted. Automobile insurance, including uninsured motorist provisions, are designed to compensate victims for vehicle-caused injuries. There must be some connection between the harm done and the insured vehicle. See Wheeler et al. v. London Guarantee & Accident Co., 292 Pa. 156, 140 A. 855 (1928), Ferry v. Protective Indemnity Company of New York, 155 Pa.Super. 266, 38 A.2d 493 (1944), Presbyterian University of Pennsylvania Medical Center v. Keystone Insurance Co. and Willie Bass, 251 Pa.Super. 71, 380 A.2d 381 (1977). The vehicle itself is covered by the automobile policy, and an individual is covered only by nature of his function as the driver of that vehicle. The intent of the driver becomes relevant only after a determination is made that the injury complained of was caused by the vehicle. This is, in fact, the meaning of the language ‘arising out of the ownership, maintenance or use of such uninsured motor vehicle,’ contained in the State Farm policy.
In the instant case, Day’s broken ankle was caused by Williams knocking him down with his fists, not with his truck. In point of fact, no injury was caused by the collision of the two vehicles in question. Williams was clearly not behaving as a motorist at the time of his assault on Day.”

(Emphasis added) Id. 261 Pa.Super. at 219, 396 A.2d at 5.

Instantly, as in Day, the insurance policy contains language which limits recovery for bodily injury “caused by accident resulting from the maintenance or use of a motor vehicle,” with the additional proviso that said payment will be made “in accordance with the No-Fault Act.” Here, appellant’s injury was caused by a shot fired by Officer Almond as he was attempting to evade apprehension for the commission of a crime. Thus, as in Day, appellant sustained an injury by a force external to any vehicle involved in a collision. Consequently, “[t]he injury sustained was simply not within the scope and terms of th[e] policy.” Day v. State Farm Mutual Insurance Co., supra, 261 Pa.Super. at 219, 396 A.2d at 5. Accord Erie Insurance Exchange v. Eisenhuth, 305 Pa.Super.-, 451 A.2d 1024 (10/15/82) (A vehicular passenger was shot by a policeman during pursuit of the vehicle’s driver. Applying the reasoning of Day v. State Farm Mutual Insurance Co., supra, the court concluded that the passenger’s presence in the vehicle was not connected causally to his injuries. Therefore, he was not entitled to recover no-fault benefits); Nationwide Mutual Insurance Co. v. Knight, 34 N.C.App. 96, 237 S.E.2d 341 (1977). As conceded by the appellant, “the facts presented for discussion are . . . unusual.” If we were to interpret the insured’s policy to allow recoupment of his medical expenses, we would be subverting the purpose for which the No-Fault Act was passed, i.e., to provide prompt and adequate compensation to victims who “accidentally” sustain bodily harm on the Commonwealth’s highways.

Appellant cites to us Howe v. Harleysville Insurance Co., 7 D. & C.3d 214 (Luzerne County, 1978), in support of his contention that his injuries are compensable under the No-Fault Act. In Howe, the plaintiff was a passenger in an insured vehicle when he was shot by a hunter, who had fired at a deer and missed his mark. The errant bullet struck the claimant while he was seated in the moving vehicle. The court decided that the injury came within the ambit of the No-Fault Act; however, in so doing, the court was careful to note the public policy aspect of this kind of case:

“Certainly to the unsuspecting passenger, it makes no difference if his injuries are caused by a collision with another vehicle, a falling tree, a stationery pole, or a misfired bullet . . . damages and loss are the same. We see nothing in the [No-Fault] Act which supports or requires the conclusion that the legislature desired to restrict application of the No-Fault Act to a particular type of accident or that causation is a statutory prerequisite to recovery.” (Emphasis added) Id. at 217-218.

We find Howe distinguishable, for in the case sub judice we are not dealing with either an “unsuspecting” occupant of a vehicle or “a misfired bullet.” Rather, appellant’s actions initiated and escalated the scenario of facts that culminated in his being shot. As a corollary thereto, it cannot be gainsaid that “[t]he policeman who fired the damaging shot did so willfully, intentionally and deliberately after having witnessed [appellant’s] attempt to run over [said policeman] and his fellow officers.” (Lower Court Opinion at 5)

Additionally, appellant proffers the rulings in Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974) and Wetzel v. Westinghouse Electric Corporation, 258 Pa.Super. 500, 393 A.2d 470 (1978) to buttress his averment that the courts of this Commonwealth have permitted recovery under a policy of insurance even where the insured was injured during the commission of a criminal act. In both Mohn and Wetzel, the innocent beneficiaries sought to collect the proceeds from the death of a family member under the policy of insurance, whereas here the perpetrator of the crime that set in motion an erratic sequence of events that culminated, directly, in the injury now seeks reimbursement. Surely, it cannot be said, in all candidness, that appellant was “behaving as a motorist at the time of his assault” by the authorities. See generally Day v. State Farm Mutual Insurance Co., supra. Thus, as stated in Mohn, examining the “injury . . . from the viewpoint of the insured,” we find no reason to take odds with the trial court’s determination that “[appellant’s] injury did not arise out of the use of his automobile nor was the injury accidentally sustained.” (Lower Court Opinion at 5) To hold otherwise, under the particular facts of this case, would do violence not only to the logical interpretation of the No-Fault Act, but would be inconsistent with jurisprudentially sound decision-making by this Court.

Order affirmed.

BECK, J., concurs in the result.

      . Appellant was charged with aggravated assault, recklessly endangering another person and resisting arrest. He was found guilty of simple assault on January 4, 1979, before the Hon. Angelo A. Guarino.


author: McEWEN, Judge:

text:
    450 A.2d 725
    COMMONWEALTH of Pennsylvania v. Michael KNOX, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1981.
    Filed Sept. 17, 1982.

      Douglas M. Johnson, Assistant Public Defender, Souderton, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   McEWEN, Judge:

We here consider an appeal from the Order of the Common Pleas Court which dismissed the petition of appellant for relief under the Post-Conviction Hearing Act, Act of January 25,1966, P.L. 1580, 19 P.S. § 1180-1 et seq. Appellant contends principally that he should be afforded P.C. H.A. relief because his guilty pleas to burglary and various related charges were unlawfully induced and because he had been denied his constitutional right to the effective assistance of counsel. We affirm.

Appellant, Michael Knox, was apprehended during his commission of the burglary of an apartment dwelling and subsequently entered pleas of guilty to burglary, theft, possession of an instrument of crime, terroristic threats, recklessly endangering another person and criminal conspiracy. He was thereafter sentenced to two concurrent terms of imprisonment of from one and one-half to five years on the charges of possession of an instrument of crime and terroristic threats and to a consecutive six year term of probation on the burglary charge. Sentences on the charges of theft, recklessly endangering another person, and criminal conspiracy were suspended. Counsel filed a timely motion to modify sentence which was denied. Appellant then filed a pro se petition to vacate and reconsider sentence which was dismissed by the court. Appellant thereafter initiated pro se P.C.H.A. proceedings and alleged, inter alia, that his guilty pleas had been unlawfully induced and that he had been denied his constitutional right to representation by competent counsel. The Common Pleas Court appointed a new attorney to represent defendant on the P.C.H.A. petition. The Commonwealth filed a motion to dismiss the P.C.H.A. petition and, after hearing, the petition of appellant was dismissed. Appellant, having replaced his trial counsel with court appointed counsel for the P.C.H.A. proceedings in the Common Pleas Court, then proceeded to replace the P.C.H.A. counsel with new court appointed counsel for the appeal to this Court.

The brief of appellant sets forth the following two issues in the Statement of Questions Involved which were raised in the lower court:

(1) Did the appellant waive the right to challenge the validity of his guilty plea?
(2) Was the appellant’s plea of guilty unlawfully induced because he was not properly advised of the possible defense available to the crimes charged?

The opinion of the post-conviction hearing court addressed these issues and we agree with its determinations. Under the Post-Conviction Hearing Act there is a rebuttable presumption that the failure to raise an issue in the trial court is a knowing and understanding failure. 19 P.S. § 1180-4(c); Commonwealth v. Baylor, 279 Pa.Super. 304, 420 A.2d 1346 (1980).

Appellant failed to timely move in the Common Pleas Court for withdrawal of his guilty plea pursuant to Pa.R. Crim.P. 320. We, therefore, conclude that he has waived, for the purpose of this appeal the issue of the validity of his guilty plea. Commonwealth v. McGarry, 280 Pa.Super. 527, 421 A.2d 847 (1980); Commonwealth v. Campbell, 269 Pa.Super. 467, 410 A.2d 350 (1979); Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975).

We further conclude that appellant has failed to establish that his trial counsel provided ineffective assistance, the extraordinary circumstance which would preclude waiver of the issue raised here on appeal. 19 P.S. § 1180-4(b)(2); Commonwealth v. Newell, 486 Pa. 474, 406 A.2d 733 (1979); Commonwealth v. Baylor, supra. Our review of the record makes clear that appellant has failed to show his counsel was ineffective. The pleas of guilty were entered following an extended colloquy which demonstrated that the decision of appellant to plead guilty to the various charges was made knowingly, willingly and voluntarily on the basis of the belief of his counsel and the advice of counsel to appellant that the court would most likely impose a much less severe sentence if appellant pleaded guilty. This advice by counsel to appellant was also based upon the disclosure by appellant to counsel prior to the time of the anticipated trial that (1) the burglary had actually been planned prior to his ingestion of a drug which he had previously maintained would be the mainstay of his defense of involuntary intoxication; and (2) that he would no longer subject himself to further hypnosis sessions with a medical expert which had been aimed toward establishing the defense of involuntary intoxication, nor would he continue with the preparation of that defense. The record reflects that appellant was well apprised of the possible defense of involuntary intoxication, had worked extensively with his attorney in preparation of this defense, was apprised of the applicable case law, and, shortly before the anticipated trial, voluntarily made the decision to forego this line of defense and plead guilty.

When we review a claim of ineffective assistance of counsel we apply a two-step analysis. First, we determine if the issue underlying the allegation of ineffectiveness is of arguable merit. Second, if we find the underlying issue to be of arguable merit, we shift our inquiry to a determination of whether the course actually chosen by counsel had some reasonable basis designed to effectuate the interests of the client. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982).

The P.C.H.A. Court found that under all of the circumstances of the case, including the decision of the appellant not to pursue the possible defense of involuntary intoxication, the advice of counsel to appellant that he plead guilty in the belief that the judge would be lenient in imposing sentence had a reasonable basis in effectuating his client’s interests. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). The Superior Court will not disturb the findings of the P.C.H.A. Court if they are supported by the record. Commonwealth v. May, 296 Pa.Super. 435, 442 A.2d 1129 (1982); Commonwealth v. Sullivan, 472 Pa. 129, 145, 371 A.2d 468, 476 (1977). Since the findings are supported by the record we will not disturb them.

Through the device of an allegation of the ineffectiveness of both trial counsel and P.C.H.A. counsel, appellant, represented by even newer counsel on this appeal, raises a new issue—he claims that his guilty plea was unlawfully induced by the failure of his guilty plea counsel to object to erroneous information provided by the prosecutor during the guilty plea colloquy concerning the maximum terms of imprisonment and fines applicable for the crimes to which he pleaded guilty. The primary issue as to whether the guilty pleas were unlawfully induced has already been litigated in the P.C.H.A. hearing below. Despite the conclusion of the P.C. H.A. Court that the issue had been waived, the court proceeded to a determination of the issue on the merits on the basis of the allegation of ineffective assistance of counsel and concluded that (1) the guilty plea was not unlawfully induced; and (2) that counsel was not ineffective. We have accepted that determination.

Appellant now attempts to here litigate for the first time a claim that the guilty plea was defective for a further but previously unmentioned reason, namely, the prosecutor provided erroneous information during the guilty plea colloquy with regard to the aggregate maximum sentences and fines which confronted appellant, and would have us consider this claim on the basis that both trial counsel and P.C.H.A. counsel were ineffective for failing to earlier object to the defect.

While there are certain procedural deficiencies which would ordinarily preclude the consideration of this contention, Commonwealth v. Lowe, 298 Pa.Super. 219, 444 A.2d 739 (1982), we shall nonetheless consider it in the interest of judicial efficiency, since we have presently before us a record which is adequate to now dispose of the contention.

In order to establish a right to relief in a P.C.H.A. proceeding, the petitioner must demonstrate not only that an error has occurred but also that the error has prejudiced him. See Commonwealth v. Blair, 274 Pa.Super. 606, 418 A.2d 571 (1980).

Our examination of the record here reveals that appellant was properly advised of the individual maximum fines and terms applicable to the crimes charged. This aspect of the colloquy comported with the requirement of an inquiry into the defendant’s awareness of the permissible range of sentences and fines for the charged offenses pursuant to the guidelines set forth in the Comment to Pa.R.Crim.P. 319(a). See Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977); Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976); Commonwealth v. Schork, 467 Pa. 248, 356 A.2d 355 (1976); Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974).

A scrutiny of the record confirms, however, that the information provided by the prosecutor was in error with regard to the aggregate maximum sentences and fines which appellant could have faced by pleading guilty to the crimes charged. Appellant has not, however, demonstrated the manner in which this error prejudiced him.

We conclude that this contention is without arguable merit, since the record demonstrates that appellant did not plead guilty because of the defect asserted—a quite trifling and baseless contention—but that he was motivated to enter pleas of guilty by: (1) the overwhelming evidence of his participation in the burglary which included his apprehension in the very apartment during the actual burglary; (2) his inability to replace the contrived defense which he had decided to abandon; and (3) his desire to secure a reduced sentence for these crimes.

Order affirmed.

      . Appellant claims that he was improperly advised of the aggregate maximum terms of imprisonment and the maximum fines which he faced. The disputed portion of the guilty plea colloquy conducted by the District Attorney is set forth as follows:
      By Mr. Selig [Assistant District Attorney]:
      Q. So altogether you face a maximum of, I believe, it’s eighty six years in jail, and the fines, I didn’t add those up, but there are well over one hundred thousand dollars in fines, you understand that? A. Yes.
      Q. That could be the maximum imposed upon you. Do you understand that?
      A. Yes, sir. (N.T. guilty plea, 10-16-79, p. 43).
      The approximation of sentence expressed by the Assistant District Attorney was in error. The prosecutor stated he believed it was 86 years; appellant in his brief indicates the aggregate maximum was 46 years; a closer calculation would indicate that a term of 59 years and a fine of $90,000 is the aggregate maximum sentence for the crimes to which appellant pleaded guilty: burglary, theft, possession of an instrument of crime, terroristic threats, recklessly endangering another person and criminal conspiracy.


author: CIRILLO, Judge:

text:
    450 A.2d 729
    Geraldine HUTCHINGS & Dorothy White & Samuel White, Appellants, v. Jerry TRENT & Overland Coach Lines, Inc.
    Superior Court of Pennsylvania.
    Argued June 4, 1982.
    Filed Sept. 17, 1982.

      Allen L. Feingold, Philadelphia, submitted a brief on behalf of appellants.
    Michael P. McKenna, Philadelphia, for appellees.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from an order granting a petition to open a default judgment. Since the order was entered prematurely, we remand for further proceedings.

On July 15, 1978, plaintiffs/appellants, Geraldine Hutchings and Dorothy White (hereinafter “appellants”) were passengers in a bus owned by defendant/appellee, Overland Coach and driven by defendant/appellee, Jerry Trent (hereinafter “appellees”). Appellants allege that they sustained personal injuries when the bus stopped suddenly and threw them about. The incident allegedly took place in Hanover County, Virginia. Appellants are residents of Philadelphia. Appellee/Overland is a corporation which regularly does business in Philadelphia and Hanover County, Virginia.

On June 16, 1980, appellants filed a complaint in trespass in the Court of Common Pleas of Philadelphia County against appellees. Service was made at appellee’s office in Virginia on June 17, 1980 by certified mail. Subsequently, on July 15,1980, appellant/Dorothy White, only, filed another complait in trespass in the Circuit Court of the County of Hanover against appellees. Service was made on appellees in their Virginia office on July 18, 1980.

Though appellees timely entered an appearance in the Virginia action, no appearance was entered or answer filed in the Pennsylvania action. Default judgment was taken against appellees on September 3, 1980 in the Pennsylvania suit. On January 8, 1981, appellee filed a petition to open judgment. The petition was granted on March 25, 1981. It is from this order that this appeal was taken.

It is well settled that a petition to open judgment is an appeal to the equitable powers of the court and is a matter largely within its discretion. Zinck v. Smashy’s Auto Salvage, Inc., 250 Pa.Super. 553, 378 A.2d 1287 (1977). Before granting the petition to open in a trespass action, the petitioner must establish that: 1) the petition was promptly filed after the judgment was entered, and 2) a legitimate explanation exists for the default. If the equities are otherwise clear, a meritorious defense need not be demonstrated. Corprew v. Prudential Ins. Co. of America, 286 Pa.Super. 302, 428 A.2d 1003 (1981).

Appellant argues that none of these requirements was met and the lower court abused its discretion in opening the default judgment. Appellant also contends that the lower court erred in opening the judgment where no depositions were taken and there were contested issues of fact.

Initially, we will consider whether the petition was promptly filed. The lower court, in its opinion, stated:

There is no dispute that defendants notified plaintiffs’ counsel immediately upon notice of the entry of the default judgment. By letter of September 25, 1980, counsel for the parties agreed that settlement negotiations would continue but should they prove fruitless, defendants would petition to open judgment. Further, counsel agreed that such petition would be considered timely filed. The parties were unable to reach an agreement and the petition to open was filed on January 8, 1981. Accordingly, timeliness of this petition is not at issue herein.

The court’s conclusion that timeliness was not at issue and there was no dispute that appellee had contacted appellant’s counsel immediately upon notice of default is simply not supported by the present state of the record.

In its petition to open, appellee alleged that counsel entered into an agreement to the effect that any delay in filing the petition would not be raised while settlement discussions were held. No factual allegations were made concerning when appellee first received notice of the entry of judgment and when appellee contacted appellant’s counsel and entered into the “stay” agreement. In his answer to the petition to open, and in an accompanying memorandum of law, appellant disputed that he had agreed that the petition, if and when filed, would be considered timely. In particular, appellant argued that the letter which contained the “stay” agreement, merely provided that the petition to open when filed, would be considered filed as of the date appellee first contacted appellant after judgment was entered. Appellant also denied that appellee acted promptly upon discovery of the default.

The letter in question states in pertinent part:

If settlement does not occur and we cannot agree on the opening of judgment, any petition that you file for the opening of judgment will be considered filed as of the date of your first contact with our office after you found that judgment had been entered and you had requested that we open same.

The wording of the letter would seem to be consistent with appellant’s averments that timeliness of the petition was in issue. Therefore, the court was incorrect in finding that counsel had agreed that the petition would be considered timely filed.

Furthermore, the court’s conclusion that there was no dispute that appellee had notified appellant’s counsel immediately upon discovery of default was erroneous. Appellant, in its answer to the petition, denied that appellee had acted promptly. Appellee’s assertion that the promptness requirement was met, while possibly true and may be proven on remand, was a contested factual issue which could not be resolved without the benefit of admissions or depositions. See, Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979).

We now consider whether appellee has adequately explained the reason for failing to enter an appearance or file an answer in the Pennsylvania action. In its petition to open, appellee states that it was served with the Pennsylvania complaint by certified mail on June 17, 1980. In averment four of its petition, appellee maintains that these papers were immediately sent to its insurance representative. In averment seven, appellee alleges that through clerical oversight, as a result of the confusion created by the institution of two separate actions in two separate jurisdictions, the Pennsylvania suit papers were not sent to the insurance company until after judgment had been entered. Appellant’s answer to the petition denied these allegations and demanded strict proof thereof. Specifically, appellant alleged that no confusion resulted from the filing of the two suits because the form of the suit papers was totally different and appellee failed to give an explanation as to why the normal office procedure for sending papers, regardless of their content, to their insurer was not followed in this particular instance.

Our court has held that when a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof. Johnson v. Leffring, 211 Pa.Super. 84, 235 A.2d 435 (1967). The procedure for providing such proof is dictated by Pa.R.C.P. 209; it was not followed here.

Pa.R.C.P. 209 provides:

If, after the filing and service of the answer, the moving party does not within fifteen days; (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

Thus, petitioner bears the burden of supporting his allegations of fact by depositions. Retzbach v. Berman, 222 Pa.Super. 523, 294 A.2d 917 (1972). Only after petitioner is ruled to proceed, and fails to take depositions or order the cause for argument on the petition and answer, will the factual averments of respondent be taken as true. Smith v. Dale, 405 Pa. 293, 175 A.2d 78 (1961).

In the instant case, when the lower court ruled on the petition, neither party had taken any action under Rule 209. Petitioner had not taken depositions or ordered the cause for argument on petition and answer, and respondent had not served a rule on petitioner to show cause why depositions should not be taken or the matter ordered for argument on the petition and answer.

Based on the petition and answer alone, the court opened the default judgment. This decision was clearly premature. See, Shainline, supra; Instapak v. S. Weisbrod Lamp & Shade, 248 Pa.Super. 176, 374 A.2d 1376 (1977). Apparently, the lower court believed averment seven of appellee’s petition, and disregarded appellant’s answer, in concluding that the default was reasonably explained.

On the issue of whether appellee’s confusion when served in two lawsuits legitimately explained his default, the court had no evidence, only contradictory pleadings. Thus, the court had no basis for preferring appellees’ version over that of appellants’. White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974). We, therefore, must remand to the lower court for further proceedings consistent with Rule 209. Shainline, supra; Instapak, supra.

The order of the lower court is reversed and the matter remanded for further proceedings consistent with this Opinion. Jurisdiction is relinquished.

      . Appellee/Overland’s normal office procedure when it received papers involving any accident was to automatically transfer them to another envelope and send them immediately to their insurance representative. This was done whether Overland understood what the papers were or not.

      . The closest thing to evidence in the record were the statements, attached to appellee’s petition to open, of Harry V. Mitchell, owner of Overland Coach and of Cecilia C. McNally, Claims Supervisor for Overland’s insurer. These statements were in the form of depositions but were in fact taken ex parte, depriving appellant’s counsel of the opportunity to cross-examine on the issues presented in the petition to open.


author: BECK, Judge:

text:
    450 A.2d 732
    COMMONWEALTH of Pennsylvania v. Louis B. STEWART, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1981.
    Filed Sept. 17, 1982.
    Petition for Allowance of Appeal Denied Jan. 31, 1983.

      Michael P. Dignazio, Media, for appellant.

      David E. Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH JJ.
   BECK, Judge:

Appellant, Louis B. Stewart, was convicted by a jury of murder in the first degree. Post-verdict motions were timely filed by trial counsel who thereafter retired from practicing law. Appellant secured new counsel who filed supplemental motions alleging, inter alia, ineffective assistance of counsel. A hearing was held and post-verdict motions were denied. Appellant was sentenced to life imprisonment, and he appeals from judgment of sentence.

The facts underlying the instant appeal are uncontroverted. On July 30, 1979, the Upper Darby Police Department received a call informing them that a woman was unconscious at 7293 Glenthorne Road. The caller identified himself as Michael Fitzpatrick and gave the number of the telephone from which he was calling; that number corresponded to the phone in the deceased’s apartment. The police proceeded to Glenthorne Road and discovered that there was no building with the given address. A second call was received by the dispatcher stating that the police were at the wrong address and that the building for which they were looking was down the street. The police ascertained that the correct address was 7293 Guilford Road, which road crosses Glenthorne Road. Upon arriving at the deceased’s building, police observed appellant exiting the premises, waving to them and beckoning them to the scene. At the murder scene, appellant volunteered to the police officers that he was not the person who called them. He told them that a Michael Fitzpatrick had made the call. Upon entering the deceased’s apartment, the police officers discovered the naked body of the seventy-four year old victim covered with feces and blood; her eyeballs had been removed from the sockets. There were no people either inside the victim’s apartment or in the front section of the building. After noticing blood on appellant’s clothing, the officers asked him if he would accompany them to the station. There he was read his Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] rights and arrested.

Appellant alleges initially that the lower court erred in allowing the taped telephone conversation to be played to the jury. The voice that was recorded, appellant argues, was not properly identified. It is clear, though, that when seeking to introduce testimony as to the content of a telephone conversation, the identity of the caller may be established by circumstantial evidence. Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977); Commonwealth v. Topa, 269 Pa.Super. 473, 410 A.2d 354 (1979); Commonwealth v. DeRohn, 444 Pa. 334, 282 A.2d 256 (1971). We find that the trial court did not err in concluding that there were sufficient indicia of reliability supporting the identification of appellant as the caller and accordingly find no error in admitting the taped conversation. As noted above, appellant was the only person in the vicinity of the victim’s apartment, and he told the police officers that Michael Fitzpatrick, not he, had called them. The record reflects that Michael Fitzpatrick was incapacitated in the Delaware County Hospital at that time, making it extremely unlikely that it was he who placed the call. Also the facts that appellant was aware of the call, that he volunteered to the officers at the murder scene much of the information supplied in the telephone call, and that he was leaving the deceased’s apartment when the police arrived, all point to appellant as the caller.

Appellant next objects to admission of the tape for any purpose because its “negligible” probative value was outweighed by its prejudicial impact. We find that the tape was logically relevant in that it tended to connect appellant to the crime as well as to explain the course of conduct of the police officers. This Court in Commonwealth v. Ryan, 253 Pa.Super. 92, 103, 384 A.2d 1243, 1249 (1978) (emphasis in original) held that the trial court was correct in admitting testimony as to radio broadcasts “to show the mental state of the police and explain their course of conduct.” Accord, Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980).

The standard for excluding logically relevant evidence was well stated by this Court in Commonwealth v. Strube, 274 Pa.Super. 199, 216-217, 418 A.2d 365, 374 (1979), cert. denied, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980):

[E]vidence which is logically relevant should be excluded when it would so inflame the minds of the jurors that its probative value is outweighed by unfair prejudice. Commonwealth v. Bryant, 461 Pa. 3, 334 A.2d 603 (1975); Commonwealth v. Smalls, 460 Pa. 436, 333 A.2d 853 (1975); Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973); Commonwealth v. Wright, 227 Pa.Super. 134, 323 A.2d 349 (1974). Because no rigid rule might be formulated to embrace the infinite range of evidence which might be proffered, and because the trial judge is in a far superior position to assess any possible prejudicial effect on the jury, we will not reverse the trial court’s decision on admissibility absent an abuse of discretion. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth v. Pilosky, 239 Pa.Super. 233, 362 A.2d 253 (1976); Commonwealth v. Kinnard, 230 Pa.Super. 134, 326 A.2d 541 (1974).

We find that the recording was not unduly inflammatory; therefore the lower court judge did not abuse his discretion in admitting it.

Appellant additionally alleges several instances in which his trial counsel was ineffective. Our standard of review in evaluating such claims was recently reasserted in Commonwealth v. Schroth, 495 Pa. 561, 564, 435 A.2d 148, 149 (1981):

In considering appellant’s claim of ineffective counsel, we are governed by Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where we held that a court must independently review the record and examine counsel’s stewardship in light of available alternatives. The inquiry ceases and counsel is deemed to have been effective once the court is able to conclude that counsel’s actions had a reasonable basis designed to effectuate the client’s interests. The test is not whether it appears on hindsight that another course of action would have been more reasonable. Further, counsel is not ineffective in failing to assert a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant asserts that trial counsel failed to file a motion for pre-trial discovery pursuant to Pa.R.Crim.P. 305 and that as a result he was not prepared for the testimony of an expert witness who testified that a fingerprint lifted from a tray in the victim’s apartment matched appellant’s left ring finger. We initially note that appellant’s trial counsel had engaged in informal discovery and had been allowed thoroughly to peruse the prosecution’s file prior to trial. He testified at the post-conviction hearing that he was not aware of this particular piece of evidence. But this omission could hardly be termed ineffective in that it was never controverted at trial that appellant had been inside the victim’s apartment. In fact, it was established that he had been living with her. Our Supreme Court, in Commonwealth v. Ford, 491 Pa. 586, 592, 421 A.2d 1040, 1043 (1980), quoting Commonwealth v. Wade, 480 Pa. 160, 172, 389 A.2d 560, 566 (1978) reiterated the requirement of prejudice resulting from trial counsel’s omission or commission in order for there to be a finding of ineffective assistance.

[Bjefore a defendant on direct appeal is entitled to relief under a theory of ineffective assistance of trial counsel, it must appear that the lawyer’s act of omission or commission was arguably ineffective representation, and that it is likely that such ineffectiveness was prejudicial to the defendant.

(Emphasis added.)

Appellant also contends that by failing to object to the admission of the aforementioned tape recording, trial counsel was ineffective. As discussed above, that evidence was both logically and legally relevant and was thus admissible. “[W]e have consistently held counsel will not be considered to have been ineffective if his action or inaction had ‘some reasonable basis designed to effectuate his client’s interests.’ Commonwealth ex rel. Washington v. Maroney, [427 Pa. 599, 604, 235 A.2d 349, 352 (1967) ]. And we will find a ‘reasonable basis’ for inaction if the thing not done had no likelihood of success.” Ford, 491 Pa. at 593-594, 421 A.2d at 1044. Applying that standard, it becomes clear that objecting to plainly admissible evidence bore “no likelihood of success.”

Appellant asserts that trial counsel rendered ineffective assistance in failing to move for a demurrer or a directed verdict at the completion of the prosecution’s case. The test for ruling upon a demurrer or a motion for a directed verdict is whether “the prosecution’s evidence, and all inferences arising therefrom, considered in the light most favorable to the prosecution are insufficient to prove beyond a reasonable doubt that the accused is guilty of the crimes charged.” Commonwealth v. Finley, 477 Pa. 382, 384, 383 A.2d 1259, 1260 (1978). Compare, e.g., Commonwealth v. Baker, 287 Pa.Super. 39, 429 A.2d 709 (1981). In light of the evidence presented, it appears that either motion would have been an exercise in futility. It is quite clear that the prosecution had presented a prima facie case and that there was sufficient evidence to sustain a guilty verdict.

Appellant’s final assertion is that trial counsel was ineffective in failing to present psychiatric testimony because “the sole issue confronting the jury in its deliberation was the Defendant’s state of mind at the time of the killing.” (Appellant’s brief at 21.) Were the sole issue state of mind, trial counsel would clearly have been ineffective in failing to introduce psychiatric testimony. Appellant points to Commonwealth v. Potts, 486 Pa. 509, 406 A.2d 1007 (1979) for the foregoing proposition. In that case there was no issue as to whether defendant committed the murder, and our Supreme Court stated:

When the only issue is appellant’s state of mind, trial counsel’s decision not to present relevant psychiatric and psychological testimony which may be determinative of the issue can be as damaging to the truthfinding process as the failure in other contexts to present the testimony of an available eyewitness, alibi witness, or other key witness.

Id., 486 Pa. at 513, 406 A.2d at 1009. But Potts is readily distinguishable from the instant case in that appellant Stewart insisted upon his innocence.

The instant case is controlled by Commonwealth v. Mizell, 493 Pa. 161, 425 A.2d 424 (1981). The Mizell court held that the failure to seek and introduce psychiatric testimony supporting an insanity defense where defendant maintained his innocence did not rise to the level of ineffective assistance of counsel.

Presentation of an insanity defense would imply that appellant committed the act in question, a position totally diametric to appellant’s assertion. Under these circumstances, where counsel represented a lucid defendant who refused to submit to a psychiatric examination and who insisted upon his innocence of the act charged, we do not find an insanity issue which counsel can be deemed ineffective for having failed to pursue.

Id., 493 Pa. at 164, 425 A.2d at 426. We find that trial counsel acted reasonably in deferring to appellant’s assertion of innocence. Appellant himself refused to consider a diminished capacity defense, and we will not now find trial counsel ineffective for seeking an acquittal for an act appellant claims he did not perform.

Judgment of sentence affirmed.

       Appellant suggests that because the recording tended to link him to the crime and damaged his defense, it was unduly prejudicial and therefore should not have been admitted. We find that argument to be sheer sophistry, and it has been explicitly rejected by our Supreme Court. E.g., Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980), cert. denied, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 387 (1981); Commonwealth v. Green, 477 Pa. 170, 383 A.2d 877 (1978); Commonwealth v. Smalls, 460 Pa. 436, 333 A.2d 853 (1975).


text:
    450 A.2d 736
    Clifford C. KRAGER v. FOREMOST INSURANCE COMPANY and Chester County Mutual Insurance Company, Appellant. Appeal of CHESTER COUNTY MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1981.
    Filed Sept. 17, 1982.

      Robert J. Smith, Montrose, on brief for appellant.
    Sam W. Lewis, Scranton, on brief for Krager, appellee.
    William E. Wyatt, Montrose, for Foremost, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   WATKINS, Judge:

This appeal stems from an action for a Declaratory Judgment in Susquehanna County. The action is really two separate law suits with a common plaintiff originating in an accident in which the plaintiff was involved. The defendants are insurance companies authorized to do business in Pennsylvania. The plaintiff, Clifford Krager, was involved in a motor vehicle collision with one Linda Blacheck. Linda and her husband sued Krager who gave each of the insurance companies notice of the action and demanded that they defend the claim. Each denied coverage and this suit was filed to recover the expenses of Krager in defending the action and to determine liability. The court below found coverage against the defendant Chester County Mutual Insurance Company and found no coverage in the case against Foremost Insurance Company.

The facts as agreed are as follows: This action was commenced by plaintiff with a complaint seeking declaratory judgments to which answers were filed by the defendants, Chester County Mutual Insurance Company and Foremost Insurance Company. The defendants were joined in one suit in accordance with P.R.C.P. 2229. The plaintiff then moved for summary judgment.

On about Thursday, August 2, 1979, Clifford Krager was operating a garden tractor owned by his mother, Matilda Krager, on Pennsylvania Legislative Route 57066 in Susquehanna County. Mr. Krager was allegedly involved in an accident with a motorcycle operated by Linda Blacheck. Mrs. Blacheck sustained injuries as a result of this accident.

Mr. and Mrs. Blacheck sued the plaintiff herein, who gave each of the defendant insurance companies notice of the action and demanded a defense of the claim. Both companies denied coverage relying upon the language of their respective policies.

The defendant Foremost had issued a mobile homeowner’s liability insurance policy to the plaintiff Clifford Krager, but denies coverage on the ground that the operation of the garden tractor at the time of the accident was not incidental to the maintenance of his own mobile home premises in Broome County, New York. The defendant Chester County Mutual Insurance Company had issued a homeowner’s liability insurance policy to the plaintiff’s mother, Matilda Krager, but denies coverage on the ground that the plaintiff is not a “resident” of his mother’s household and, therefore, does not come within the definition of an “insured” under the language of the policy.

The plaintiff, Clifford Krager, an adult, 54 years of age, owns a mobile home in Castle Creek, Broome County, New York, where he lives at least six months of the year. He holds a New York State operator’s license entitling him to operate a motor vehicle. He is a registered voter of the State of New York and exercises his voting rights as a New York State resident. Krager lives at his New York mobile home from November to April each year, and from April to November with his mother at her summer home in Susquehanna County, Pennsylvania. At the time of the alleged accident, the plaintiff was staying with his mother at her Pennsylvania home.

The orders under review found that there is no coverage under the defendant Foremost’s policy and that there is coverage under the defendant Chester County Mutual’s policy-

The policy issued to Clifford Krager by Foremost Insurance Company on his mobile home in New York contained the following:

Liability provides protection against accidents that happen to somebody else, but that YOU are legally responsible for, subject to all policy terms and conditions.
We’ll pay under Personal Liability Coverage for damages YOU become legally obligated to pay when the damages occur on YOUR mobile home premises or result from YOUR personal actions.. .
Liability doesn’t provide payment for Personal Liability coverage and medical payments to others coverage doesn’t pay for bodily injury or property damage . ..
Arising out of the ownership, maintenance, use, loading, or unloading of:
Any motor vehicle licensed or not for road use, on or off public roads except riding lawn mowers or equipment usual and incidental to the maintenance of YOUR mobile home premises.

The exclusion on Page 18 concerns itself with the exact situation which formed the basis for the original trespass action and clearly excludes coverage under Foremost Policy.

The policy issued by Chester County Mutual Insurance Co. to Matilda Krager, mother of Clifford Krager, on her dwelling at R.D. # 4, Susquehanna, PA provided the following:

We will provide the insurance in this policy in return for the premium and compliance with all applicable provisions of this policy. Throughout this policy, “you” and “your” refer to the “named insured” shown in the Declarations and the spouse if a resident of the same household, and “we”, “us” and “our” refer to the Company providing this insurance. In addition certain words and phrases are defined as follows: ...
3. “insured” means you and the following residents of you household:
a. your relatives.

The Courts of this Commonwealth have historically recognized the classical definitions of the words domocile and residence. Domicile being that place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning.

Residence being a factual place of abode. Living in a particular place, requiring only physical presence.

Though the two words may be used in the same context, the word resident as used in the policy, without additional words of refinement, i.e., permanent, legal, etc., would carry the more transitory meaning.

The appellant having written the contract, any ambiguity in its terms will be construed against it. Miller v. Prudential, 239 Pa.Superior Ct. 467, 362 A.2d 1017 (1976).

Clifford Krager was clearly a resident relative of the insured and within the coverage of the policy issued by Chester County Mutual Insurance Company.

The orders as entered by the court below are affirmed.

POPOVICH, J., concurred in the result.


author: HOFFMAN, Judge: VAN der VOORT, Judge, dissenting:

text:
    450 A.2d 738
    COMMONWEALTH of Pennsylvania v. William ASHBY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 20, 1981.
    Filed Sept. 17, 1982.

      John A. Clay, Beaver, for appellant.
    John L. Brown, Assistant District Attorney, Beaver, for Commonwealth, appellee.
    Before MONTGOMERY, HOFFMAN and VAN der YOORT, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s denial of appellant’s Post Conviction Hearing Act (PCHA) petition. Because we are unable to determine the merits of appellant’s contentions on the record before us, we must vacate the order of the lower court and remand for an evidentiary hearing.

On June 9, 1975, appellant entered counselled guilty pleas to four counts each of burglary and theft by unlawful taking. No direct appeal was taken. On May 13, 1976, appellant filed a pro se PCHA petition challenging the voluntariness of his pleas and the effectiveness of his counsel. The lower court appointed new counsel, heard argument, and then dismissed the petition without an evidentiary hearing. Appellant’s pro se PCHA petitions filed on May 10, 1978 and August 10, 1978 were dismissed without appointment of counsel or evidentiary hearings because the claims were substantially similar to those denied in the first PCHA petition. No appeals were taken from any of these dismissals. Appellant filed this pro se petition on August 2, 1979, alleging for the first time that the guilty plea colloquy was inadequate and that the sentencing court had failed to advise him of his right to appeal. The PCHA court found the plea colloquy adequate but agreed that appellant had not been informed of his right to appeal. It dismissed the petition, however, because the only issues cognizable on appeal had been waived by failing to raise them in prior PCHA petitions. Appellant perfected an appeal to this Court, and new counsel was appointed.

On this appeal, appellant contends that his PCHA counsel was ineffective in failing to: (1) amend his petition to challenge the lack of a factual basis for the guilty plea; (2) challenge the sentencing colloquy when the lower court had not informed appellant of his rights to withdraw his guilty plea and appeal; and (3) advise appellant to appeal from the denial of PCHA relief. Although these claims appear to have arguable merit, the present record is insufficient to permit a determination of whether counsel had a reasonable basis for failing to pursue them. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Accordingly, we must remand for an evidentiary hearing on PCHA counsel’s effectiveness. Either party aggrieved by the lower court’s actions on remand may take a new appeal as allowed by law.

Order vacated and case remanded for proceedings consistent with this opinion.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge, dissenting:

Appellant filed his fourth PCHA petition on August 2, 1979. In such he averred that the sentencing court failed to advise him of his right to appeal and that the guilty plea colloquy was inadequate. Appellant now argues on this appeal that counsel on his first PCHA petition was ineffective in not raising the above issue and in not appealing the adverse ruling on the first petition.

Reviewing the fourth petition, I do not find that such petition alleged that prior PCHA counsel was ineffective. While appellant may have checked off the block, in the standardized petition, questioning counsel’s effectiveness, nowhere in the petition is there any indication that he was challenging PCHA’s counsel’s stewardship. Appellant’s claim was not properly presented in his fourth petition and neither the trial court or this court should consider it. Commonwealth v. Carrier, 494 Pa. 305 n. 3, 431 A.2d 271, 273, n. 3 (1981); Commonwealth v. Zillgitt, 489 Pa. 189, 192 n. 3, 413 A.2d 1078, 1079 n. 3 (1980); Commonwealth v. Stokes, 294 Pa.Superior Ct. 529, 440 A.2d 591 (1982); Commonwealth v. Stanton, 294 Pa.Superior Ct. 516, 440 A.2d 585 (1982).

I respectfully dissent.

      . A second PCHA petition, filed May 14, 1976, was treated as an amendment to the May 13 petition.

      . Appellant has preserved his objections to PCHA counsel’s effectiveness because this is his first opportunity with independent counsel to raise them. Commonwealth v. Triplett, 476 Pa. 83, 88 n.5, 381 A.2d 877, 880 n.5 (1977); Commonwealth v. Johnson, 298 Pa.Superior Ct. 493, 498, 444 A.2d 1291, 1293 (1982); Commonwealth v. Oliver, 280 Pa.Superior Ct. 274, 277 n.1, 421 A.2d 719, 721 n.1 (1980).

      . Appellant also filed: a PCHA petition on May 14, 1976 which was treated as an amendment to the May 13, 1976 petition; he also filed a motion to withdraw his guilty plea, nunc pro tunc under date of June 18, 1979.


author: PER CURIAM:

text:
    450 A.2d 740
    FIRST PENNSYLVANIA SAVINGS ASSOCIATION, Formerly Known As Troy Savings and Loan Association v. FOUR SEASONS RACQUET CLUB, INC., William F. Choltko, Janice M. Olszewski, James A. Huet and Carol T. Huet, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed Sept. 24, 1982.
    Edgar J. Cooke, Bellevue, for appellants.
    I. Leonard Greenwald, Monroeville, for appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   PER CURIAM:

This court, in an opinion filed as of No. 329 Pittsburgh, 1980, 287 Pa.Super. 180, 429 A.2d 1160, reversed and remanded the within deficiency judgment action to the Court of Common Pleas of Westmoreland County and in the course of that opinion provided direction to that court to proceed in the following manner:

Reconsider the case.
Determine whether the findings of the trial judge should be changed and, if so, by how much.
Enter a new Order.
Provide an Opinion fully explaining the basis for the change.

The Westmoreland County Common Pleas Court failed to comply with that procedure and instead proceeded in apparent summary fashion to enter an order that set aside the order it had entered as a court en banc establishing the value of the assets in question at $375,000 while reinstating the determination of value of $300,000 that had been entered by the trial judge, as a result of which the within appeal, the most recent appeal proceeding, was undertaken.

ORDER

IT IS HEREBY ORDERED THAT the matter be remanded to the Common Pleas Court of Westmoreland County for en banc proceedings by that court that comply with the directives expressed in the earlier opinion entered by this court. Jurisdiction is relinquished.