author: TAMILIA, Judge: BECK, Judge,

text:
    613 A.2d 1250
    Stella GOLDBERG, Administratrix of the Estate of Jeanne Goldberg, Deceased, and Stella Goldberg, in Her Own Right, Appellant, v. DELTA TAU DELTA, an Unincorporated Association and National Fraternity, Delta Tau Delta, Delta Beta Chapter, an Unincorporated Association, Carnegie Mellon University and Darrell J. Van Mastrigt v. Brian GOLDBERG.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1991.
    Filed March 24, 1992.

      Beck, J., dissented in part and concurred in part and filed opinion.

      Robert A. Cohen, Pittsburgh, for appellant.
    John A. Robb, Jr., Pittsburgh, for Goldberg, appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Stella Goldberg takes this appeal from the April 22, 1991 Order granting appellee, Brian Goldberg’s, motion for summary judgment. Appellant originally brought this civil suit for damages in October, 1988, against Delta Tau Delta, the Beta Chapter of Delta Tau Delta, Carnegie Mellon University (CMU) and Darrell J. Van Mastrigt as a consequence of the February 8, 1987 death of her daughter, Jeanne Goldberg, at the hands of Van Mastrigt. In June, 1989, Brian Goldberg was joined as an additional defendant in this matter by defendant Delta Tau Delta who averred Brian provided Jeanne with the alcohol and marijuana which rendered her incapable of protecting or caring for herself at the time of her fatal injuries. Delta argued Brian’s actions were a direct and proximate cause of Jeanne’s death. Appellee’s initial motion for summary judgment was denied on September 17, 1990. However, appellee was granted leave to refile his motion which, in turn, was granted April 22, 1991. This appeal followed.

This case arises from events which occurred at CMU during the weekend of February 6-8, 1987, culminating in the death of 20-year old Jeanne Goldberg. At this time appellee was an 18-year old freshman at CMU and the decedent, who came to CMU on Friday, February 6th, to attend a fraternity party, was a student at Robert Morris College. In the early morning hours of Saturday, February 7th, Brian Goldberg met the decedent at a Theta Xi fraternity party and shortly thereafter the couple retired to Brian’s room where they had consensual sexual intercourse and fell asleep. Brian and Jeanne spent Saturday together and that evening, at approximately 8:00 p.m., they went to a party held in Brian’s dormitory where beer and mixed drinks were available. Brian had previously paid $5 to attend the party. Brian and Jeanne stayed two hours, left to attend a movie and thereafter went to CMU’s Tartan Grill where they met Van Mastrigt, a passing acquaintance of Brian. The three returned to the dorm party at midnight, each had one drink and then went to Brian’s room where they each took five tokes on marijuana presented in a bowl and provided by Van Mastrigt. Brian defined a toke as one inhale and one exhale (N.T., 7/2/90, p. 66). At about 3:00 a.m., the trio got in Jeanne’s car and she drove them to another fraternity party where Brian had two beers and Jeanne and Van Mastrigt each had one-half of a beer. While at this particular party, Van Mastrigt and Jeanne conversed while Brian stood alone. At 4:00 a.m., Brian, Jeanne and Van Mastrigt joined a small party of 12 in an upstairs room where the decedent and Van Mastrigt consumed the bulk of a fifth of Southern Comfort whiskey. Van Mastrigt obtained the whiskey by trading marijuana with another person at the party. Everyone present also took two tokes of marijuana which was once again provided by Van Mastrigt. Brian, Jeanne and Van Mastrigt left this party at about 5:30 a.m. Because Jeanne was having difficulty walking due to the drugs and alcohol she had consumed, Brian and Van Mastrigt placed her in the back seat of her vehicle and Van Mastrigt drove them to a nearby hot dog shop. While Brian went in to get french fries, Van Mastrigt stayed in the car with Jeanne. When Brian returned, and as Jeanne slept, the two men discussed the fact Jeanne and Brian were not committed to each other and Brian would not object if she and Van Mastrigt had sex. It was Brian’s testimony Van Mastrigt told him Jeanne had repeatedly voiced sexual invitations to Van Mastrigt while Brian was in the restaurant. Van Mastrigt then dropped Brian at his dormitory and drove away with Jeanne. The record reveals Van Mastrigt took Jeanne to South Park where he stabbed her to death.

Appellant argues the court committed an error of law by granting appellee’s motion for summary judgment and ruling, because he had not yet reached age 21, appellee could not be found negligent per se for providing alcohol and marijuana to another minor, herein the decedent. Appellant contends the court also erred by finding appellee’s actions were not a substantial factor in causing Jeanne’s death.

As an appellate court, we are bound to consider certain principles when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 557 A.2d 1064 (1989). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance Co., 380 Pa.Super. 167, 551 A.2d 283 (1988). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court’s conclusion no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035; see Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). The court must ignore controverted facts contained in the pleadings and restrict its review to material filed in support of and in opposition to a motion for summary judgment and to those allegations in pleadings which are uncontroverted. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970 (1989). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

Appellant argues the holding in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), which imposed social host liability on adults who furnish alcohol to persons under the age of 21, should be extended to impose liability on persons between 18 and 21 years of age who provide liquor to persons between 18 and 21 years of age. Appellant argues two Third Circuit Court of Appeals cases suggest, if given the opportunity to address the issue, the Pennsylvania Supreme Court would hold an individual over the age of 18 can be criminally and civilly liable for the service of alcoholic beverages to those under 21 years of age. See Macleary v. Hines, 817 F.2d 1081 (3rd Cir., 1987), and Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3rd Cir., 1986). However, in a companion decision to this appeal, this Court affirmed an Allegheny County Court of Common Pleas decision wherein it was found, for the purposes imposing social host liability a person remains a minor until he reaches age 21. Kapres v. Heller, 417 Pa.Super. 371, 612 A.2d 987 (originally filed on 3/24/92 and refiled on 6/2/92). Therefore, a minor cannot, as a matter of law, be held liable as a social host for furnishing alcoholic beverages to another minor. Accordingly, we find the trial court committed neither an error of law nor abused its discretion by granting Brian Goldberg’s motion for summary judgment.

Although we find appellant’s arguments persuasive, this Court is not prepared to extend social host liability to persons under the age of 21. The Congini case, which is the seminal case in Pennsylvania establishing a cause of action by a minor against an adult social host, specifically limited social host liability to one who is lawfully entitled to possess and consume alcohol and furnishes it to one who is not so entitled. Appellant’s argument that minor Brian Goldberg should be construed as an adult pursuant to Pa.R.C.P. 76, and, therefore, liable for damages incurred by the minor decedent as a result of drugs and alcohol allegedly provided by appellee, was thoroughly analyzed by the trial court and we defer to its well reasoned explanation refuting appellant’s argument.

“At the time of the incident, Jeanne Goldberg, Brian Goldberg, and Darrell J. Van Mastrigt were older than eighteen and less than twenty-one. The issues raised by additional defendant’s motion for summary judgment are (1) whether a person between the ages of eighteen and twenty-one who furnishes alcohol to another person between the same ages can be liable as a social host and (2) whether one adult who assists a second adult in illegality procuring marijuana can be liable for injuries that the second adult sustains as a result of the use of the marijuana.
“In the case of Kapres v. Heller No. G.D. 88-4899, The Honorable David S. Cercone of this Court [Common Pleas Court of Allegheny County] rendered an opinion on November 30, 1990, which held that a nineteen year [old] who served alcoholic beverages to another nineteen year old cannot be held liable. Absent compelling circumstances, I am required to follow this opinion. Yadacufski v. Dept. of Transportation, [499 Pa. 605] 454 A.2d 923 (Pa.1982).
“I believe that this opinion is a correct reading of Pennsylvania law. I also believe that the rationale for the result in Kapres v. Heller bars a claim by one adult against another adult for injuries resulting from the first adult’s use of marijuana that was obtained with the assistance of the second adult.
“Under Pennsylvania law, there is no liability on the part of a social host for serving alcohol to adult guests. Herr v. Booten, [398 Fa.Super. 166] 580 A.2d 1115 (Pa.Super.1990); Klein v. Raysinger, [504 Pa. 141] 470 A.2d 507 (Pa.1983). However, in the case of Congini by Congini v. Portersville Valve Co., [504 Pa. 157] 470 A.2d 515 (Pa.1983), the Pennsylvania Supreme Court held that an adult who served alcohol to a visibly intoxicated eighteen year old was liable because of the provisions of the Criminal Code making it a summary offense for someone under twenty-one years of age to purchase, consume, and possess alcohol (18 Pa.C.S. § 6308) and making a person guilty of an offense if that person is an accomplice of another person in the commission of the offense (18 Pa.C.S. § 306).
“The Court’s opinion specifically limited the imposition of liability to the circumstances in which a person lawfully entitled to possess alcohol furnishes the alcohol to a person who is not entitled to possess alcohol. The Congini opinion states that ‘an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor’ (emphasis added) ([527 A.2d at] p. 517). Also see the opinion of Justice McDermott writing for the Court in Matthews v. Konieczny, [515 Pa. 106] 527 A.2d 508 (Pa.1987), which states that ‘[t]he Congini decision was ground upon the per se negligence involved in an adult dispensing alcohol to a minor in violation of the Crimes Code’ (emphasis added) ([527 A.2d at] p. 511) and the dissenting opinion of Chief Justice Nix which states that
“ ‘In Congini the basis of the duty of the social host to the minor was, as stated above, predicated on sections 306 and 6308 of the Crimes Code. Read together these sections prohibit an adult from furnishing liquor to a minor and make both the host and the minor criminally culpable.’ (emphasis added) ([527 A.2d at] p. 518)
“The term ‘adult’ as used by the Supreme Court in Congini means an adult within the meaning of the liquor laws.* See Kapres v. Heller, supra. Also the ‘minor’ to whom the ‘adult’ served liquor in Congini was eighteen years of age.
“The Supreme Court’s use of the term ‘adult’ who furnishes liquor to a minor rather than ‘person’ who furnishes liquor to a minor establishes that the Court imposed liability because of the responsibility that one who is lawfully entitled to possess alcohol owes to persons who are not entitled to possess alcohol. The argument that the plaintiff raises would mean that under Congini whenever one of several joint participants in a criminal activity sustained damages as a result of the activity, liability would be imposed against the other participants. It would create a cause of action where two adults are involved in obtaining marijuana and one of the two sustains damages from its use. By using the term ‘adult’ in Congini, it appears that the Supreme Court did not intend to utilize the criminal laws in this fashion.”

(Slip Op., Wettick, J., 4/22/91, pp. 30-33.)

Based on the trial court’s well reasoned Opinion and the particular facts of this case, we agree with the trial court’s finding appellee was entitled to judgment as a matter of law.

Having found minor Brian Goldberg cannot be held liable as a social host, our discussion of the extent his participation in providing Jeanne with drugs and alcohol will be brief and is done solely in the interest of judicial economy.

In the case of Jefferis v. Commonwealth, 371 Pa.Super. 12, 537 A.2d 355 (1988), this Court listed various factors which would be taken into consideration when determining whether social host liability should apply. This Court articulated the following test for social host liability, based on the Restatement (Second) of Torts Section 876:

1) The defendant must have intended to act in such a way so as to furnish, agree to furnish or promote the furnishing of alcohol to the minor;
2) The defendant must have acted in a way which did furnish, agree to furnish or promote the furnishing of alcohol to a minor; and,
3) The defendant’s act must have been a substantial factor in the furnishing, agreement to furnish, or the promotion of alcohol to the minor.

Jefferis supra, 371 Pa.Superior Ct. at 17, 537 A.2d at 358. The Jefferis Court also noted the “mere presence at the scene of the crime will not establish accomplice liability.” Id. The trial court found Brian’s involvement in obtaining and furnishing marijuana and alcohol to Jeanne was limited and not a substantial factor causing her death. We agree. Although Brian testified he paid $5 to attend the dormitory party to which Jeanne accompanied him on the night of February 7, 1987, his payment was for his own admission and was paid before he met Jeanne. Furthermore, Brian did not purchase the alcohol, plan the party or assist in serving the beverages provided. The marijuana the three shared in Brian’s room was provided by Van Mastrigt. Later that night at the Delta fraternity house, Brian handed Jeanne and Van Mastrigt each one cup of beer he had obtained from the fraternity bar. When the party moved to an upstairs room, it was Van Mastrigt who secured the Southern Comfort as well as the marijuana consumed by Jeanne.

If activities such as those described above are deemed to create a duty to protect on the part of Brian toward Jeanne, then we would indeed be opening a Pandora’s Box of potential liability. We cannot believe the legislature’s intent or the decisions promulgated in Congini, Fassett, Macleary or any of the other cases addressing social host liability was to proscribe attending parties with friends or passing alcoholic beverages to someone at a party. The record supports a finding minor Brian Goldberg’s participation in furnishing alcohol and/or drugs to the minor decedent was de minimis and not a substantial factor contributing to Jeanne’s untimely demise.

Based on the forgoing reasons of law and fact, we affirm the April 22, 1991 Order granting appellee’s motion for summary judgment.

Order affirmed.

BECK, J., files a dissenting and concurring statement.

BECK, Judge,

dissenting and concurring.

The majority relies on the reasoning and holding of companion case, Kapres v. Heller, 417 Pa.Super. 371, 612 A.2d 987 (originally filed on 3-24-92 and refiled on 6-2-92) to conclude that a person under twenty-one years of age cannot be liable as a social host for furnishing alcoholic beverages to a minor. For the reasons set forth in my dissent in Kapres, I disagree with this conclusion and dissent to the portion of the majority’s opinion which so holds. However, because I agree with the majority that appellee Brian Goldberg’s involvement could not rise to the level of substantiality required for imposition of liability in a social host situation, I concur in the result.

In order for civil liability to attach to one who furnishes a minor with alcohol, the alleged tortfeasor must have intentionally rendered substantial assistance to the minor appellant in his or her consumption of alcohol. Jefferis v. Commonwealth, 371 Pa.Super. 12, 17-21, 537 A.2d 355, 358-359 (1988). I agree with the majority that appellee Goldberg’s accompanying appellant to a party at which alcohol was served, handing her a glass of beer which was poured by another host and attending another gathering at which appellant imbibed additional intoxicants does not amount to substantial assistance in her consumption of intoxicants. As such, I conclude that the trial court correctly granted summary judgment for Brian Goldberg on this reason alone.

      . Although on praecipe judgment was entered for appellee on May 1, 1991, the April 22, 1991 Order granting summary judgment is the final Order from which this appeal is properly taken.

      . Brian Goldberg is not related to Stella Goldberg or Jeanne Goldberg.

      . None of the original defendants is party to this appeal. Delta Tau Delta, the Delta Beta Chapter of Delta Tau Delta and Carnegie Mellon University settled with appellant in return for joint tortfeasor releases. Darrell J. Van Mastrigt was convicted of first degree murder and is serving life imprisonment.

        Any person over the age of fourteen is both presumptively capable of negligence (Kuhns v. Brugger, [390 Pa. 331] 135 A.2d 395 (Pa.1957)) and responsible for conduct that constitutes criminal activity. Consequently, Congini either extends to any person over the age of fourteen (because they are presumed capable of negligence) or is limited to persons over the age of twenty-one (because they have greater responsibilities under the liquor laws).

      . However, I must note that I disagree with the majority’s characterization of the issue. In my view the question is not whether "Brian’s involvement in obtaining and furnishing marijuana and alcohol to Jeanne ... [could be considered] a substantial factor in causing her death.” Instead the issue is whether appellee Brian Goldberg could be found to have been a substantial factor in the furnishing or promoting of Jeanne Goldberg's consumption of alcohol. The question of whether Jeanne Goldberg’s death was, in turn, proximately caused by her consumption of alcohol is a separate issue. See, e.g., Congini v. Portersville Valve Co., 504 Pa. 157, 163, 470 A.2d 515, 518 n. 4 (1983).


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    614 A.2d 239
    COMMONWEALTH of Pennsylvania v. Anthony WOODWARD, Appellant.
    Superior Court of Pennsylvania.
    Argued May 29, 1992.
    Filed July 28, 1992.

      Robert E. Welsh, Jr., Philadelphia, for appellant.
    Peter Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We reverse and remand for a new trial.

On March 23, 1984, appellant Anthony Woodward was charged with first degree murder and criminal conspiracy. Anthony Woodward (“Anthony”) was tried with his cousin, Jerry Woodward (“Jerry”). After a bench trial, the Honorable Juanita Kidd Stout presiding, Anthony was found guilty of first degree murder and conspiracy; Jerry was found guilty of first degree murder, aggravated assault, and conspiracy. Post-verdict motions were filed and subsequently denied. Anthony was sentenced to life imprisonment for murder and the sentence was suspended on the conspiracy charge. Anthony appealed to this court and the judgment of sentence was affirmed in a memorandum opinion on August 23, 1985.

Anthony filed a motion for reargument with this court, which was dismissed because it was untimely filed. Anthony then filed a nunc pro tunc petition for allocatur, which was denied. On October 7, 1987, Anthony filed a petition for post conviction relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. § 9541 et seq. The Commonwealth filed a motion to dismiss the petition on March 30, 1988. On August 17, 1988, the Honorable Joseph D. O’Keefe granted in part the Commonwealth’s motion to dismiss. The motions court dismissed the due process and sufficiency of the evidence claims; however, the remaining claims were assigned to the Honorable James D. McCrudden, who held an evidentiary hearing on the PCHA petition. Judge McCrudden stated that there was insufficient evidence to support the conviction and found that trial counsel was ineffective. He further stated that:

This Court [Court of Common Pleas of Philadelphia County] believes that an injustice has occurred and that while most of the blame was caused by the attorney representing the defendant, the judicial system cannot entirely escape blame for allowing the error to go uncorrected.

Thereafter, Judge McCrudden authorized the filing of post-trial motions nunc pro tunc. Both parties appealed from the order. Woodward appealed to the extent he was denied relief and the Commonwealth appealed from the order to the extent Anthony was permitted to file post-trial motions nunc pro tunc. This court affirmed the PCHA court’s granting of post-trial motions and remanded the case to the trial court. Anthony filed his post-trial motions nunc pro tunc. Following argument, the trial court, the Honorable Juanita Kidd Stout again presiding, denied the post-trial motions and reimposed the sentence of life imprisonment on the first degree murder charge and suspended sentence on the conspiracy charge. This timely appeal followed.

The record indicates that Jerry and the victim, James Himmons (“Himmons”) had a physical and verbal confrontation at a party on March 23, 1984, where Jerry while displaying a gun, threatened to kill Himmons. There is no evidence that Anthony attended that party. After the party ended, the police stopped Himmons for a routine traffic violation. Himmons was driving a friend’s car and was accompanied by several friends. Himmons had a gash on his head, and he explained to the police that the wound was the result of a fight with Jerry. He also stated that Jerry had stolen his designer eyeglasses during the earlier altercation. While the owner of the car which Himmons had been driving stayed with the police, Himmons and his friends then walked to Ted’s bar in search of Jerry.

Inside the bar, Anthony was sitting with friends when Jerry sat down in a booth with them. Thereafter, Himmons and his friends entered the bar and approached Jerry. Himmons demanded his glasses. Jerry denied having the glasses and reached into his pocket. In response, Himmons punched him. Two Commonwealth witnesses who were friends of Himmons, Emanuel Rose and Ernest Hilbert, testified that during this altercation Jerry stabbed Himmons in the abdomen. Anthony attempted to assist Jerry, but was restrained and punched in the face by one of Himmons’s friends. The blow to his face knocked him into a booth. Hilbert testified that when Anthony recovered from the blow, he began striking Himmons on the back. He also stated that Himmons was attempting to flee the bar, while Anthony followed him. The police, who were outside the bar, separated Anthony and Himmons. One of the police officers noticed that Himmons was bleeding. Himmons was taken to Miseracordia Hospital where he, subsequently, died of stab wounds during surgery. Anthony was arrested outside the bar and Jerry, who had exited the bar through a back door, was arrested later. The police discovered a bloody knife in the bar.

Anthony presents several issues for our consideration:

(1) Was there sufficient evidence to support Anthony Woodward’s convictions for first degree murder and conspiracy as an accessory and conspirator in the death of the victim during a bar fight between the victim and appellant’s cousin during which the cousin stabbed the victim?
(2) Was Anthony Woodward denied the effective assistance of trial counsel based upon trial counsel’s failures to investigate, interview and present exculpatory testimony and other evidence which demonstrated that he did not chase and punch the victim after he had been stabbed?
(3) Did the Commonwealth’s failure to disclose exculpatory information showing that the appellant did not chase and punch the victim violate his rights under the due process clause?
(4) Does the testimony of Antrion Freeman and Reginald Marsh constitute newly discovered evidence mandating a new trial?
(5) Should a new trial be ordered based upon cumulative error and in the interests of justice?

I. INSUFFICIENCY OF THE EVIDENCE

Anthony first contends that there is insufficient evidence to support his conviction of first degree murder and conspiracy. More specifically, Anthony argues that there is no evidence of shared criminal intent, intent to kill, or premeditation on his part, nor was there any basis for finding that he aided and abetted or conspired in the murder of Himmons.

In reviewing the sufficiency of the evidence:

... we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of the witness and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

Commonwealth v. Taylor, 324 Pa.Super. 420, 422, 471 A.2d 1228, 1229 (1984). It is with this standard in mind that we review Anthony’s claim.

Pursuant to the Crimes Code, a person is legally accountable for the conduct of another if “he is an accomplice of such other person in the commission of the offense.” 18 Pa.C.S.A. § 306(b). One is an accomplice of another in the commission of an offense if “with the intent of promoting or facilitating the commission of the offense, he ... aids or agrees or attempts to aid such other person in planning or committing it ...” 18 Pa.C.S.A. § 306(c).

Thus, in order to be convicted of accomplice liability,, a two step analysis is required. First, it must be determined whether the accused pbssessed the requisite criminal intent. Commonwealth v. Potts, 388 Pa.Super. 593, 599-600, 566 A.2d 287, 291 (1989), allocatur granted, 525 Pa. 656, 582 A.2d 322 (1990). If the accomplice acts with the intent of promoting or facilitating the commission of the crime, he is equally criminally liable for the acts of the principal. Id. at 600, 566 A.2d at 291. Second, it must be determined whether the defendant aided or agreed or attempted to aid in the commission of the offense. “It is well settled that this requirement is satisfied by the least degree of concert or collusion between the accomplice and the principal.” Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981); Commonwealth v. Strantz, 328 Pa. 33, 40, 195 A. 75, 79 (1937).

Anthony argues that there was no evidence to suggest that he knew that his cousin had mortally wounded Himmons and, thus, there are no facts from which an intent to kill can be found. In order to determine whether there was sufficient evidence to establish beyond a reasonable doubt that Anthony possessed the intent to promote or facilitate Himmons’s death, we must view the facts in a light most favorable to the Commonwealth. Potts, 388 Pa.Super. at 601, 566 A.2d at 291. Given the record here, there was sufficient evidence for the trial court to conclude that'Anthony acted with the intent to facilitate Himmons’s death.

Anthony testified at trial that he was not aware of the stabbing until after he had been arrested. However, in a statement made immediately after the murder, Anthony admitted that he saw Himmons bleeding during the fight. He also described the manner of the stabbing and the sequence of events immediately preceding the stabbing. Additionally, Himmons’s wounds were, clearly visible, as he was bleeding profusely, and his intestines were protruding from his abdomen. Moreover, one witness testified that during the altercation he screamed that Himmons had been stabbed.

It is a well established legal principle that where conflicting evidence exists, the trier of fact is free to “believe all, part, or none of the evidence presented.” Commonwealth v. Miller, 375 Pa.Super. 437, 447-48, 544 A.2d 1000, 1005 (1988). Therefore, based on the evidence presented, the trial court could have reasonably concluded that Anthony entered into the fray with the knowledge that Himmons had been stabbed by Jerry. Such a finding would establish that Anthony understood the nature of the encounter between Jerry and Himmons and acted with the intent of facilitating or promoting the murder of Himmons.

The focus of the second stage of the analysis is whether Anthony aided or attempted to aid his cousin in either planning or completing the crime. Generally, in order to find criminal liability the trier of fact must find that the accomplice actually aided the principal in the commission or planning of the crime. See Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009 (1978); Commonwealth v. Bridges, 475 Pa. 535, 381 A.2d 125 (1977); Commonwealth v. Darnell, 179 Pa.Super., 461, 116 A.2d 310 (1955). The PCHA court stated that the Commonwealth failed to prove that Woodward contributed to Himmons’s death and, therefore, he could not be considered an accessory to the murder. While it is true that the Commonwealth did not prove that Anthony’s conduct aggravated Himmons’s injuries or hastened his death, it should be noted that in Pennsylvania a person can be an accomplice to a crime if he aids or agrees or attempts to aid another in the commission of that crime. 18 Pa.C.S.A. § 306(c). The record indicates that Anthony knew when he entered the fight that Himmons had been stabbed. Thus, there was sufficient evidence at trial to establish that Anthony was attempting to aid his cousin Jerry in the murder of Himmons. Taylor, supra.

Regarding the conspiracy charge, Anthony contends that there was no evidence of an agreement between himself and Jerry as required to uphold a conviction of conspiracy. In support of this assertion, Anthony maintains that there is no evidence to suggest that he knew that he was going to meet Jerry in the bar that night, that he had any knowledge that Jerry was carrying a knife, or that his actions were anything but in defense of his cousin.

It is firmly established that a common understanding or agreement is the basis of a conspiracy. Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927, 929 (1982). However, “(a)n explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities.” Commonwealth v. Strantz, 328 Pa. 33, 43,195 A. 75, 80 (1937). Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. Kennedy, 499 Pa. at 395, 453 A2d at 930. Anthony knew of the stabbing when he entered into the fight yet, as the testimony of the officer on the scene demonstrates, continued to strike Himmons about the head. Thus, while there was no evidence from which a formal agreement to commit murder could be found, the trier of fact, could find collusive behavior between Anthony and his cousin. Viewing the facts and all reasonable inferences derived therefrom in a light most favorable to the Commonwealth, we hold that there was sufficient evidence to support Anthony Woodward’s convictions for first degree murder and conspiracy in the death of James Himmons. Taylor, supra.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

In his next issue, Anthony contends that his trial counsel failed to present readily available exculpatory evidence, and, therefore, he was denied effective assistance of counsel. The evidence, which consisted of the testimony of four witnesses, contradicts the Commonwealth’s assertion that Anthony chased and punched Himmons after the stabbing. Anthony argues that since the trial court’s verdict was based upon a finding of his knowledge of the stabbing and his subsequent punching of Himmons, the presentation of this evidence at trial would have cast reasonable doubt on his guilt.

Our Supreme Court has authorized the following standard of review for claims of ineffective assistance of counsel:

In reviewing a claim of ineffective assistance of counsel, we must first determine whether the issue underlying the claim has arguable merit. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). If, however, the claim has merit, we must then determine whether the course of action chosen by counsel has some reasonable basis designed to effectuate the client’s interest. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991).

To establish that counsel was ineffective for failing to investigate or call witnesses, appellant must show “(1) the identity of the witness, (2) that counsel knew of the existence of the witness, (3) the material evidence that the witness would have provided, (4) the manner in which the witness would have been helpful to his cause.” Commonwealth v. Polk, 347 Pa.Super. 265, 273, 500 A.2d 825, 829 (1985). We feel that these elements have been sufficiently demonstrated by Anthony with regard to witnesses Ernest Fleet (“Fleet”) and Aaron Beard. (“Beard”)

During the PCHA hearing, Fleet, a longtime friend of Himmons, testified that Anthony did not punch Himmons during the altercation. He further stated that Himmons chased Anthony out of the bar, jumped on him, and demanded his glasses. A statement corroborating this testimony had been given to the police within hours of the murder. The testimony of this eyewitness casts doubt on the theory on which the prosecution proceeded; specifically, that Anthony struck Himmons with intent to kill.

Beard, also a friend of Himmons, testified at the PCHA hearing that he saw Himmons and Anthony rush out of the bar. Beard stated that he saw Himmons throwing punches but could not say whether Anthony had thrown any punches. Both Fleet and Beard were identified as witnesses at the preliminary hearing. Additionally, during the PCHA hearing, trial counsel admitted his knowledge of the existence of these two witnesses at the time of trial.

We find that Anthony’s underlying claim is of arguable merit since the omissions of counsel constitute highly questionable legal judgement in conducting the defense. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). Trial counsel’s failure to perform any investigation, to research the law regarding accomplice liability and conspiracy, and to present available exculpatory witnesses was revealed in his testimony to the PCHA court. Such omissions constitute, at the very least, highly questionable judgment. Davis, supra.

We must also determine whether counsel’s decision not to call these witnesses had some reasonable basis designed to effectuate Anthony’s interests. “(T)he balance tips in favor of finding effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.” Pierce, 515 Pa. at 158, 527 A.2d at 975.

At the PCHA hearing, Anthony’s attorney claimed that he refrained from interviewing and calling Beard and Fleet as witnesses for three reasons. First, he saw no way Anthony could be convicted as there was “nothing” to any accomplice theory. Counsel stated that “I could have done absolutely nothing and Anthony should be acquitted.” Second, trial counsel said he was “broke” and could not afford an investigator. Third, although he testified that he read the police reports, counsel decided not to interview the witnesses because he assumed they would be partial to the prosecution. Such reasons do not justify his failure to interview these witnesses, especially Fleet, an eyewitness who, within hours of watching his friend’s murder, had given a statement to the police negating the prosecutions theory.

Counsel’s testimony revealed a general lack of understanding regarding the elements of conspiracy and accomplice liability. Due to his general confusion regarding these areas of law, Anthony’s attorney refrained from interviewing and calling to trial readily available witnesses who were friends of Himmons, and whose testimony might have cast doubt on whether Anthony had struck Himmons at all. Given his misunderstanding of the law and the omissions that resulted therefrom, counsel’s defense strategy here can hardly be considered reasonable.

Lastly, we must determine whether counsel’s failure to question these witnesses prejudiced Anthony’s defense. “This requires showing that counsel made errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Pierce, 515 Pa. at 158, 527 A.2d at 975 (citations omitted).

Anthony’s conviction was predicated upon a finding that he knew Himmons had been stabbed and that he subsequently chased and punched Himmons, thereby contributing to his death. Portions of both Fleet’s and Beard’s testimony cast doubt on such a finding. We acknowledge that there are inconsistencies between the testimonies of these two witnesses and Anthony’s testimony. However, we also recognize that in an altercation such as the one that transpired here, conflicting versions of the crime will often occur. Fleet’s testimony here negates the theory upon which the Commonwealth relies, specifically, that Anthony chased and punched Himmons. This testimony was damaging to the Commonwealth’s case and should have been presented to the trial judge. Since this exculpatory evidence was not presented at trial, Anthony’s right to a fair and reliable trial was severely hampered. Pierce, supra.

At the preliminary hearing, Emanuel Rose, (“Rose”) another companion of Himmons, testified that Himmons chased Anthony out of the bar. At trial however, Rose stated that he lost track of Himmons and Anthony, as his attention was focused on the knife which Jerry was wielding. Trial counsel’s failure to question Rose about the discrepancies in his testimony magnifies the prejudicial nature of the trial. Counsel’s error here also demonstrates his misunderstanding and mishandling of the case. Had Anthony’s attorney been cognizant of the importance of the order in which Anthony and Himmons left the bar, he would have brought this matter to the attention of the court.

Anthony also asserts that defense counsel neglected to conduct any pre-trial investigation which would have led to the discovery of two disinterested witnesses, Antrion Freeman and Reginald Marsh, who were standing outside the bar when the fight occurred. At the PCHA hearing they testified that it was Himmons who was attacking Anthony outside the bar. This testimony would tend to show that Anthony was not the aggressor here and, therefore, he did not possess the requisite intent to kill. Moreover, this testimony would have directly contradicted the testimony of Police Officer Stewart and Ernest Hilbert, two Commonwealth witnesses upon whom the trial judge based her finding of guilt.

Counsel’s lack of understanding concerning the theories of accomplice liability and conspiracy led him to believe that there was no conceivable way Anthony could be convicted. As a result, he undertook no investigation outside of questioning those witnesses who could testify that Jerry and not Anthony stabbed Himmons. We do not agree with Anthony’s contention that the testimonies of Freeman and Marsh are of such a nature that a different verdict would result if a new trial was granted. Nor can it be concluded that his attorney knew of the existence of these witnesses as is necessary for a finding of ineffective counsel here. Polk, supra. However, the PCHA testimony of these two bystanders underscores defense counsel’s failure to conduct any investigation which might have led to potentially exculpatory evidence, and is indicative of the inadequate defense given to Anthony.

It is evident from the foregoing that Anthony’s right to a fair trial was surely undermined by an attorney who negligently refrained from investigating witnesses and ultimately failed to present readily available exculpatory evidence. Due to the resulting prejudice suffered by Anthony, a new trial is warranted. Pierce, supra.

III. COMMONWEALTH’S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE

Anthony’s next contention stems from the testimonies of Fleet and Beard at the PCHA hearing. Both witnesses claimed that during the preliminary hearing they told an assistant district attorney that they saw Himmons attacking Anthony. Anthony contends that the alleged failure of the prosecutor to disclose this exculpatory evidence constituted a violation of due process under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Anthony has produced no evidence to support Beard and Fleet’s allegations that they gave statements to the assistant district attorney and to police detectives other than the police reports mentioned herein. The assistant district attorney who represented the Commonwealth at the preliminary hearing testified that he recalled no contact with either of these parties during the hearing. Additionally, the detectives who handled the pre-trial investigation testified that except for the statement made after the murder, Fleet never indicated that Himmons attacked Anthony.

The record does not reveal that the Commonwealth withheld any evidence to the defense. Consequently, we cannot find that Anthony has been denied due process under the rule of Brady, supra. As we have resolved that Anthony should be given a new trial, his remaining issues are moot, and we therefore will not address them.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

      . The Post Conviction Hearing Act has been modified in part, repealed in part, and renamed the Post Conviction Relief Act (PCRA) through amendments effective April 13, 1988. Anthony’s petition was filed on October 26, 1987 and is, therefore, governed under the PCHA.


author: CAVANAUGH, Judge.

text:
    614 A.2d 246
    MERIDIAN OIL AND GAS ENTERPRISES, INC. v. The PENN CENTRAL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1992.
    Filed Aug. 7, 1992.
    Reargument Denied Oct. 19, 1992.

      Matthew J. Siembieda, Philadelphia, for appellant.
    William T. Jorden, Meadville, for appellee.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   CAVANAUGH, Judge.

Appellant, The Penn Central Corporation (Penn Central), appeals from an order of the Crawford County Court of Common Pleas entering judgment on a jury verdict in favor of appellee, Meridian Oil & Gas Enterprises, Inc. (Meridian), in the amount of $800,000 plus interest. Because we find the lower court erred in precluding Penn Central’s use of a prior judicial determination to collaterally bar the instant action, we reverse the order entering judgment on the jury verdict and remand for a new trial.

Penn Central is in the business of selling abandoned railroad lines. It first sells the rails, ties and fixtures. Next, it sells the ballast, and finally the land. On October 17, 1979, following a telephone conversation between James Shearer, Meridian’s owner and president and T.E. Jordan, a Penn Central employee, Penn Central issued a sales order to Meridian, in which Penn Central sold and Meridian purchased 31.4 miles of ballast on the Erie and Pittsburgh branch of a rail line between Jamestown and Albion, Pennsylvania for the amount of $40,820. The sales order did not define the term “ballast,” specify depth and width limitations on the ballast sold, or provide a time limit for removal. According to Shearer’s testimony, he had never purchased ballast before the October 1979 contract with Penn Central.

Under the name, James Drilling Corporation, Shearer entered into two more ballast removal contracts with Penn Central on a different rail line. A sales order dated November 9,1979, contained no time limit for removal but specifically provided that “Ballast is to be removed to a depth not exceeding 15" deep and 10' wide.” A sales order dated December 22, 1980, provided depth and width limits of fifteen inches and ten feet, respectively and required that the ballast be removed by a specified date, just over five months from the date on the sales order.

At some point after entering into the ballast removal contracts, Shearer discovered that he did not own the appropriate equipment to remove ballast. Shearer then purchased the necessary equipment and proceeded to remove ballast on the three lines.

On February 27, 1980, Penn Central sold by quitclaim deed a one mile stretch of land on the Erie and Pittsburgh rail line to Warren Kelly. The land Kelly purchased fell within the perimeters of Meridian’s October 17, 1979 ballast removal contract with Penn Central. Kelly began removing ballast on the one mile stretch of land and Meridian sued to permanently enjoin further ballast removal by Kelly.

On June 24, 1982, Judge Thomas of the Crawford County Court of Common Pleas issued a decree nisi denying Meridian’s request for a permanent injunction. Meridian Oil and Gas Enterprises, Inc. v. Warren Kelly, Court of Common Pleas, Crawford County, Civil-Equity 11 (1982). In Kelly, Judge Thomas framed the issue before the court as:

[WJhether the Plaintiffs [Meridian’s] contract [with Penn Central] to buy ballast from an abandoned rail line ... includes all material between the top of the now rail free right-of-way to the natural ground level, or whether ballast is a term limited to the material directly beneath and to the side of the ties and rails and resting on other surface material to support the former ties and rails.

Trial Court Opinion, June 24, 1982, at 1.

The court then made the following finding of fact:

Shearer, Meridian’s President and owner, contends no mention was made of the depth and width of the ballast in his first contract at issue here ..., so that he essentially bought everything between the top of the line down to natural ground level. Testimony clearly establishes that the term ballast has a clear and recognized meaning in the railroad construction business and is the top course of dense material upon which ties are imbedded. A Penn Central employee, T.E. Jordan, testified that he specifically spelled out to Shearer in the negotiations, as he does to all potential ballast buyers, the depth and width of the ballast he was buying and that the descriptive 15" x 10' language normally used in all ballast contract sales was inadvertently left off the Meridian contract. We find as a fact that Shearer knew or should have known that his purchase of ballast was a purchase of the topmost course of material constituting the right-of-way bed and did not include materials in the right-of-way below approximately the top 15 inches.

Trial Court Opinion, June 24, 1982, at 3.

Judge Thomas then concluded as a matter of law that under Meridian’s October 17, 1979 ballast removal contract with Penn Central, Meridian purchased ballast to a depth not in excess of fifteen inches from the top of the former ties and to a width of ten feet. Judge Thomas concluded that under his deed from Penn Central, Kelly purchased all materials beneath the ballast in the right-of-way for a distance of one mile. Judge Thomas further concluded that Meridian had no further right to remove materials from the one mile strip owned by Kelly.

On August 25, 1982, Penn Central notified Meridian by letter that according to an on-site evaluation by a Penn Central field employee, Meridian had removed all of the ballast to which it was entitled under the October 17, 1979 contract and that Meridian should cease removing anymore material.

On January 28, 1983, Meridian filed a complaint against Penn Central in the Crawford County Court of Common Pleas requesting the court to declare that Meridian’s rights under the October 17, 1979 contract entitled it to all ballast, without limitation, from the sub-grade to the top of the ballast. On February 7, 1986, Meridian filed a motion for leave to amend their complaint, which was granted by Judge Walker on March 22,1988. On April 27,1988, Meridian filed an amended complaint, which added a request for an award of compensatory and punitive damages for Penn Central’s willful, fraudulent and intentional conduct in depriving Meridian of its ballast by quitclaiming property subject to the ballast removal contract to third parties. On April, 27, 1988, Penn Central filed an answer to Meridian’s amended complaint, which made no mention of the prior judicial determination in the Kelly case.

On October 3,1988, the parties met for a pretrial conference before Judge Thomas, who was scheduled to preside at the trial. Penn Central submitted a pretrial narrative raising as a defense Judge Thomas’ prior determination in Kelly that Meridian was only entitled to ballast fifteen inches deep and ten feet wide under the sales order at issue. Judge Thomas indicated that he would allow Penn Central to use the collateral estoppel defense at trial. R.R. at 942a.

On October 7, 1988, Meridian filed a motion in limine to preclude Penn Central from using the collateral effect of the Kelly decision at trial. The case was then reassigned to Judge Walker, who granted Meridian’s motion in limine one day before trial on October 10, 1988. Judge Walker first determined that the collateral estoppel issue was properly before him and turned to the merits of the defense. Judge Walker then decided to preclude Penn Central’s use of the defense because Meridian obtained certain Penn Central documents in the second action during discovery that Judge Walker determined were inaccessible to Meridian in the Kelly case.

At trial, Meridian presented the testimony of James Shearer and an expert, Charles Alsdorf, both of whom had testified in the Kelly case. Penn Central presented the prior recorded testimony of T.E. Jordan from the Kelly case. The jury returned a verdict in favor of Meridian for compensatory damages in the amount of $800,000 plus interest. Penn Central appealed and now raises six issues for our review.

Penn Central’s first claim is that the lower court should have given collateral estoppel effect to the Kelly decision to avoid relitigation of Meridian’s rights under the October 17, 1979 sales order. Because we find Penn Central’s first contention meritorious and reverse on that ground, we do not reach the other five issues on appeal. Before we may address, however, the merits of the collateral estoppel issue, we need to respond to Meridian’s assertion that Penn Central has waived consideration of the matter since it was not pleaded in a New Matter or in preliminary objections.

Although Pa.R.Civ.Proc. 1030 does not specifically list collateral estoppel as an affirmative defense, it is within the contemplation of the rule, which requires affirmative defenses to be pleaded in a responsive pleading under the heading “New Matter.” Rule 1032 provides that a party waives, subject to certain exceptions, all defenses which are not presented either by preliminary objection, answer, or reply. Penn Central did not raise collateral estoppel as a defense until the pretrial conference before Judge Thomas, when it was raised in a pretrial narrative.

At the conference, Judge Thomas indicated his approval of Penn Central’s use of the defense at trial, which was tantamount to approving an amendment under Pa.R.Civ.Proc. 1033. R.R. at 942a. The case, however, was then reassigned to Judge Walker and Meridian filed a motion in limine to preclude use of the defense at trial. In granting Meridian’s motion in limine, Judge Walker treated the collateral estoppel issue as properly raised by Penn Central and proceeded to address the merits of the defense. Judge Walker, reasoning perhaps that the defense, having been raised at the pretrial conference, qualified as an amendment to the pleadings under Rule 1033. In his opinion, Judge Walker states:

There is no procedural bar to the defendant raising the collateral estoppel issue at the pretrial conference or in its post trial motion. Meridian v. Kelly was not a final judgment of record at the time of the initial pleadings and the defense may be raised when it becomes available. See Williams v. W.C.A.B. (Philadelphia), 119 Pa.Cmwlth. 127, 546 A.2d 747 (1988) (collateral estoppel may be raised when it becomes available but no later than at the pretrial conference).

Trial Court Opinion, September 21, 1991, at 6.

Thus, as both trial court judges treated the defense as properly raised, we may do likewise. See Thatcher’s Drugs of West Goshen, Inc. v. Consol. Supermarkets, Inc., 391 Pa.Super. 524, 532, 571 A.2d 490, 494 (1990), appeal granted 526 Pa. 638, 584 A.2d 320 (1990); and Iorfida v. Mary Robert Realty Co., Inc., 372 Pa.Super. 170, 175, 539 A.2d 383, 386 (1988). Cf. Kurtas v. Kurtas, 521 Pa. 105, 109, 555 A.2d 804, 806 (1989) (plurality) (where court concluded in context of waiver of issues due to untimely filing of post-trial motions that rigid application of our rules of civil procedure does not serve intended purpose of justice and fairness); and Williams v. W.C.A.B. (Philadelphia), 119 Pa.Cmwlth. 127, 132, 546 A.2d 747, 750 (1988) (where court concluded that affirmative defense of collateral estoppel should have been raised at the very latest at the pretrial conference). Therefore, we will respond to the claim that the trial court erred in granting a motion in limine which precluded Penn Central’s use of the collateral estoppel defense.

“A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered.” Commonwealth v. Johnson, 399 Pa.Super. 266, 269, 582 A.2d 336, 337 (1990) (citation omitted), appeal granted 529 Pa. 617, 600 A.2d 534 (1991). When reviewing rulings on motions in limine, this Court applies the scope of review appropriate to the particular evidentiary matter at issue. Johnson at 269, 582 A.2d at 337.

The decision to allow or to deny a prior judicial determination to collaterally bar relitigation of an issue in a subsequent action historically has been treated as a legal issue. As such, this Court is not bound by the trial court’s conclusions of law and we may draw our own conclusions from the facts as established. 2401 Penn. Ave. Corp. v. Fed. of Jewish Agencies of Greater Philadelphia, 507 Pa. 166, 172, 489 A.2d 733, 736 (1985); Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 411, 595 A.2d 1211, 1214 (1991). Our inquiry, therefore, focuses on whether the trial court erred in precluding the collateral effect of Kelly to bar relitigation of the ballast limitations issue.

The doctrine of collateral estoppel or issue preclusion prevents a question of law or an issue of fact that has once been litigated and fully adjudicated in a court of competent jurisdiction from being relitigated in a subsequent suit. Blake v. Garvin, 403 Pa.Super. 208, 210, 588 A.2d 553, 555 (1991). An adjudication in equity is as conclusive as a judgment at law and can have collateral estoppel effect upon a subsequent action at law. Cf. Consol. Coal Co. v. Dist. 5, United Mine Workers of America, 336 Pa.Super. 354, 362, 485 A.2d 1118, 1122 (1984) {res judicata claim) (quoting Exner v. Exner, 268 Pa.Super. 253, 257, 407 A.2d 1342, 1344 (1979)).

The court below held that Meridian did not have a ftdl and fair opportunity to litigate the issue of the ballast limitations in Kelly because Meridian did not have the benefit of internal documents obtained from Penn Central during discovery in the second action. The court found that the documents, allegedly showing bad faith on the part of Penn Central, were inaccessible to Meridian in the Kelly case due to the time constraints of an equity action and the limited discovery allowed of a non-party’s documents.

Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment. City of Pittsburgh v. Zoning Bd. of Adjustment of Pittsburgh, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989) (citations omitted). Melat v. Melat, 411 Pa.Super. 647, 653, 602 A.2d 380, 384 (1992).

Instantly, the court below improperly applied the doctrine. In the Kelly case, Judge Thomas was called on to determine the issue of the limitations, if any, on the ballast that Meridian had purchased under the October 1979 sales order with Penn Central. Judge Thomas declared that Meridian was only entitled to ballast fifteen inches deep and ten feet wide under its contract with Penn Central. We have thoroughly reviewed the record in the instant case and there is no doubt that this case dealt with the same issue that was presented to the court in Kelly. Further, of the three witnesses who testified for Meridian at the second trial, two of them had previously testified for Meridian in the Kelly case. Thus, the first element of collateral estoppel was met as Meridian relitigated in the instant case the same issue that was previously litigated in Kelly.

The second element that final judgment in the previous action was rendered on the merits of the issue was met as Meridian appealed Judge Thomas’ decision to this Court and we affirmed. The third requirement was also met. The party against whom the issue of collateral estoppel had been raised, Meridian, was a party in the Kelly case.

The fourth requirement that the party against whom the defense is raised must have had a full and fair opportunity to litigate the issue was also met. The' issue of the ballast limitations under the October 1979 contract was fully presented to the court in Kelly. James Shearer, president of Meridian, testified that no mention was made of depth or width limitations while negotiating his first contract and that he believed he purchased all material below the ties down to the sub-grade. Charles Alsdorf, an expert, also testified on behalf of Meridian. T.E. Jordan testified that he specifically spelled out to Shearer during negotiations, the depth and width limitations on the ballast. Testimony also established that ballast has a clear and recognized meaning in the railroad business as the top coarse material upon which the ties are imbedded. There is no question but that the issue of the ballast limitations under the October 1979 contract was fully covered at the hearing on the permanent injunction and the court specifically found that Shearer knew or should have known of the ballast limitations in the contract.

Further, we are not persuaded by the argument that the equity action did not afford Meridian sufficient time to discover Penn Central’s documents, showing the alleged bad faith in the transaction. There has been no showing that Meridian was denied an adequate opportunity to conduct discovery or investigation before or during the conduct of the Kelly trial. Thus, we conclude that Meridian had adequate time to investigate in the Kelly case and the fact that they could present more evidence in the second action was not a sufficient ground for disallowing the application of the doctrine. Com., Dept. of Transp. v. Martinelli, 128 Pa.Cmwlth. 448, 452-55, 563 A.2d 973, 976-77 (1989).

It is also clear that the fifth requirement was met as it was essential in Kelly to determine the dimensions of the ballast that Meridian had purchased under the contract with Penn Central in order to decide whether Kelly’s activities on the one mile stretch should have been permanently enjoined.

Since Meridian had already received an adverse judgment on the same issue for which it sued Penn Central and since all of the elements for use of the defense of collateral estoppel were met, Meridian should not have been entitled to a second bite of the apple. Thus, we hold that the court below erred in granting Meridian’s motion in limine, thereby precluding Penn Central’s use of the Kelly decision to collaterally bar the instant case. Accordingly, we reverse on this issue and remand for a new trial.

Finally, we are troubled by the excessiveness of the $800,-000 verdict compared to Meridian’s out-of-pocket expenses. As this case is to be retried, however, we will not formally address this claim for relief.

Order entering judgment on the jury verdict reversed. Case remanded for a new trial. Jurisdiction relinquished.

      . Ballast or top-ballast is a layer of rocks or other material, placed under the tracks of a rail line to hold the tracks and ties in place. Beneath the top-ballast is another layer of material, sub-ballast, designed to provide drainage, prevent upheaval from frost, and distribute the load over the roadbed. Beneath the sub-ballast is the sub-grade, a foundational layer of earth, cleared free of top soil. See THE TRACK CYCLOPEDIA, 9th ed. (1978).

      . On appeal to this Court, we affirmed Judge Thomas’ decree nisi denying Meridian’s request for a permanent injunction. Meridian Oil v. Warren Kelly, 339 Pa.Super. 625, 488 A.2d 1170 (1984) (Memorandum).

      . Meridian also had another expert testify, Michael McManus, who had not testified in the Kelly case.

      . In addition, Penn Central introduced the deposition testimony of James Shearer and Edward Claypole, a Penn Central employee. An expert also testified for Penn Central.

      . The court had directed a verdict in favor of Penn Central on Meridian's claim for punitive damages at the close of plaintiff’s case.

      . Penn Central’s five additional grounds for a new trial are: (1) Meridian’s amended complaint added a cause of action sounding in tort, which was barred by the statute of limitations; (2) the jury verdict is contrary to the evidence, grossly excessive and a shock to the sense of justice; (3) the trial court’s jury instruction regarding construction of the sales order was erroneous and confusing; (4) the trial court erroneously allowed Meridian's experts to testify when they had not been properly identified prior to trial; and (5) the trial court erroneously summarized in a jury instruction the rebuttal testimony of a Penn Central employee.


author: JOHNSON, Judge.

text:
    614 A.2d 252
    COMMONWEALTH of Pennsylvania, Appellant, v. John Edward BREZAN, Appellee.
    Superior Court of Pennsylvania.
    Argued June 25, 1992.
    Filed Aug. 14, 1992.
    Reargument Denied Oct. 23, 1992.
    Jacquelyn C. Paradis, Asst. Dist. Atty., Allentown, for Com., appellant.
    William P. Wismer, Asst. Public Defender, Allentown, for appellee.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   JOHNSON, Judge.

The Commonwealth appeals from an order of the Lehigh County Court of Common Pleas which granted John Brezan’s Motion for a New Trial. Because the order granting a new trial, on its face, relied exclusively on an unpublished memorandum decision of this court, we are constrained to vacate the order granting a new trial, vacate the judgment of sentence entered previously thereto, and remand for further proceedings.

On May 6, 1987, a jury convicted Brezan of four counts of involuntary deviate sexual intercourse, four counts of indecent assault, two counts of indecent exposure, one count of statutory rape and two counts of corruption of minors. On May 31, 1989, while post-trial motions remained pending, the Honorable Robert K. Young sentenced Brezan to ten to twenty years’ imprisonment.

The Superior Court, by Order, quashed Brezan’s appeal from the judgment of sentence as it was taken before the disposition of post-verdict motions. More than two years after the judgment of sentence was entered, the trial court entered an order which purported to grant Brezan’s motion for a new trial.

That order, in its entirety, provided as follows:

ORDER
NOW, this 5th day of June, 1991, upon consideration of the written Briefs and oral Arguments of Counsel, and consistent with the accompanying footnote,
IT IS ORDERED that Defendant’s motion for a new trial is granted.
BY THE COURT:
s/Robert K. Young
s/Carol K. McGinley

The sole issue which we will consider on this appeal is whether the trial court improperly granted a new trial on the basis of a memorandum opinion of this court when such opinions may not be cited as precedent, and no other basis for the decision of the trial court is apparent? We agree with the Commonwealth’s contention that this was improper and that it requires that the order be vacated and the matter remanded for further proceedings.

Internal Operating Procedures of the Superior Court of Pennsylvania, Rule 444 B, provides as follows:

444. Unpublished Memoranda Decisions
B. An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding, except that such a memorandum decision may be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding. When an unpublished memorandum is relied upon pursuant to this rule, a copy of the memorandum must be furnished to the other party and to the Court.

Superior Court of Pennsylvania, Internal Operating Procedures, implementing Pa.R.A.P. 3501-3517, effective April 1, 1988, as amended. Compare, Superior Court, Notice to the Bar, 598 A.2d 1324: “These memorandum opinions are not to be considered as precedent and cannot be cited for any purpose.” .

Counsel for Brezan cites Major v. Major, 359 Pa.Super. 344, 518 A.2d 1267 (1986) and Melendez v. Pennsylvania Assigned Claims Plan, 384 Pa.Super. 48, 557 A.2d 767 (1989) for the proposition that citation by a trial court to unpublished memoranda does not constitute reversible error. Both of those cases can be distinguished from the situation before us on this appeal. In Major, this court reviewed an award of equitable distribution and considered the issue of whether Pennsylvania recognizes a military retirement pension as marital property. On review, a panel of this court had available the special master’s recommendations, the exceptions filed by the parties, the final order and opinion of the trial court. It was only after thoroughly reviewing the findings of the trial court and modifying the trial court’s order pursuant to 42 Pa.C.S. § 706 that the Major panel even considered the propriety of the trial court’s citation to an unpublished memorandum. The Major court found independent grounds for affirming the trial court and, by implication, determined that the citation to the unpublished memorandum had been harmless. The decision of the Superior Court panel was further modified on appeal. 518 Pa. 62, 540 A.2d 529 (1988).

In Melendez, supra, this court was able to conclude that the authority which was contained within the unpublished memorandum was applicable to the case then before the Melendez panel, in a matter involving the extinction of an insurance carrier’s subrogation rights by the insured’s execution of a release, and the resulting effect upon the insurer’s obligation to pay first-party benefits. The trial court had reviewed and discussed Section 1756 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1756, and had determined the parties’ rights based upon that analysis. The reference to the unpublished memorandum had been in support of the trial court’s reasoning, and not in substitution thereof.

What we are faced with on this appeal, unlike either Major or Melendez, is an order granting a new trial after judgment of sentence, where the only support for the new trial anywhere in the certified record is the footnote accompanying the order, indicating the trial court’s erroneous belief that it was bound by the “dictates” of the unpublished memorandum. The footnote runs counter to both this Court’s Internal Operating Procedures and the Notice to the Bar, supra.

After the notice of appeal in this case was filed, the Lehigh County court en banc, on November 15, 1991, filed its Memorandum Opinion pursuant to Pa.R.A.P. 1925, which set forth, in its entirety:

MEMORANDUM OPINION

NOW, this 15th day of November, 1991, the Court adopts its Order of June 5, 1991 as its Opinion.
s/Robert K. Young
s/Carol K. McGinley

We are compelled, therefore, to look solely to the June 5, 1991 order in determining whether the trial court either abused its discretion or committed an error of law.

The trial court believed that its Order of June 5, 1991 set forth and included the reasons for that order, in compliance with Pa.R.A.P. 1925(a). The trial court’s Memorandum Opinion of November 15, 1991 did nothing more than refer back to the previous Order. The trial court has concluded that the case of Commonwealth v. Rivera, 412 Pa.Super. 649, 594 A.2d 784 (1991) pet. for allow, denied, 530 Pa. 654, 608 A.2d 29 (1992), “involv[es] the exact same legal issues and factual questions as the instant case against Mr. Brezan.” The trial court went on to assert: “This Court cannot find any grounds to distinguish this case from the Rivera case and is, therefore, bound by its dictates.” Order, Young and McGinley, JJ., June 5, 1991, n. 1.

In Rivera, the unpublished memorandum decision which was cited and relied upon by the trial court, we were called upon to consider whether the expert testimony of Detective Carol Bennis concerning the typical behavior of child incest victims was an impermissible encroachment upon the jury’s function of determining credibility. It was only after the Rivera panel had considered both the facts and the reasoning in other cases, including Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989) [since aff'd. in part, rev’d. in part, 529 Pa. 168, 602 A.2d 830 (1992); Commonwealth v. Gibbons, 383 Pa.Super. 297, 556 A.2d 915 (1989); and Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988), and applied the reasoning in those cases to the specific facts and testimony under review in Rivera, that it determined that “Detective Bennis’ testimony was an infringement upon the province of the jury.” Memorandum slip opinion at pages 9-10.

In Rivera, the issues raised on appeal challenged the actual testimony admitted into evidence and the purpose for which that evidence was introduced. In the case now before us, the points preserved for review as set forth in the Motion for New Trial filed May 18, 1987 included the following:

2. The Trial Court erred in permitting the Commonwealth to present expert testimony of the police prosecutor, Detective Carol Bennis, when said expert opinion was not disclosed pre-trial to the defendant by the District Attorney Office’s [sic] in violation of the mandatory provisions of Rule 305 of the Pennsylvania Rules of Criminal Procedure.
4. The Trial Court erred in qualifying Detective Bennis as an expert in the area of child sexual abuse syndrome.

It thus can be seen that these issues,- as they relate to Detective Bennis, are: (1) the Commonwealth’s alleged violation of the mandatory disclosure provisions of Pa.R.Crim.P. 305 and (2) the qualification of Detective Bennis as an expert in the area of child sexual abuse syndrome. It is possible that the trial court may have considered the admissibility of Detective Bennis’ testimony itself and the purpose of that testimony when the motions court heard argument on October 24, 1990, however, there is nothing in the record which permits us to reach that conclusion. The trial court does refer to “the written Briefs and oral Arguments of Counsel” in its Order of June 5, 1991, however, none of that has been included in the record.

The trial court’s assertion in its footnote to the June 5, 1991 order that this case involves the exact same legal issue and factual questions as found in Rivera is not supported by the certified record made available to this court. Our responsibility is to determine whether the facts found by the trial court are supported by competent evidence in the record. We are unable to do that when the trial court’s only reference to facts is its assertion, without more, that the facts on this appeal are identical to facts set forth in another case involving a different certified record.

We do not attempt, on this review, to say that the ruling of the trial court was erroneous. We merely find that we have been prevented from performing our function as a reviewing court, where the sole reason provided to us by the trial court for its decision is the clearly erroneous assertion that a trial court is bound by an unpublished memorandum decision of this Court. Further, without the benefit of the trial court’s reasoning, appellate counsels’ obligation to either support or attack that reasoning is certainly frustrated.

We would expect that, on remand, the trial court will give appropriate consideration to any and all of the published opinions of our Supreme Court and this court which might bear upon the issues properly before the trial court, including but not limited to Commonwealth v. Dunkle, supra, 529 Pa. 168, 602 A.2d 830 (1992). Because we are limited to reviewing the orders brought before us on appeal, we take no position and we have not considered whether defense counsel may have been ineffective in failing to specifically object at trial, and specifically address in post-trial motions, the admissibility of the expert testimony of Detective Carol Bennis regarding child sexual abuse dynamics. We are confident that the trial court will address all issues properly brought before it and, if an appeal is taken from any subsequent order, provide this court with its reasons in proper form.

Order dated June 5, 1991 granting new trial is vacated. Judgment of sentence entered May 30, 1989 is vacated. This appeal is remanded to the trial court for disposition of all pending post-trial motions and further proceedings consistent with this Opinion. Jurisdiction is relinquished.

       After the arguments were heard on this matter, the Superior Court decided Commonwealth v. Rivera [412 Pa.Super. 649, 594 A.2d 784 (1991)]. This memorandum opinion of a case tried by our colleague Honorable James Knoll Gardner granted a new trial in a case involving the exact same legal issue and factual questions as the instant case against Mr. Brezan. This Court cannot find any grounds to distinguish this case from the Rivera case and is, therefore, bound by its dictates.


author: CERCONE, Judge.

text:
    614 A.2d 255
    June A. HEARD, Appellant, v. Cary L. HEARD.
    Superior Court of Pennsylvania.
    Argued December 11, 1991.
    Filed Aug. 20, 1992.

      Eileen D. Yacknin, Pittsburgh, for appellant.
    Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   CERCONE, Judge.

This is a consolidated appeal from the trial court order dated September 26, 1990. On August 10, 1990, the trial court granted a protection from abuse order against both appellant (“wife”) and appellee (“husband”). Wife filed timely post trial motions which the trial court denied pursuant to an order dated September 26, 1990. This appeal followed. For the reasons set forth below, we affirm in part and vacate in part the judgment entered pursuant to the September 26, 1990 order.

The trial court aptly summarized the facts of this case as follows:

The parties have been married since 1964. On July 24, 1990, pursuant to the provisions of the Protection from Abuse Act, 35 P.S. Section 10181, et seq., Wife filed a PFA petition, alleging that throughout their marital relationship, Husband had caused or attempted to cause bodily harm to Wife, thus placing her in fear of imminent serious bodily harm. Wife alleged that on or about July 23, 1990, Husband pried open the parties’ locked bedroom door with a crow bar, pulled her off the bed and onto the floor, and began to punch her in the eye and to kick her repeatedly in the upper torso area. Wife called the Wilkinsburg police, who responded to the call but ultimately declined to file a report of the incident. Wife then went to Divine Providence Hospital , for medical treatment of bruises and soreness in ribs she sustained as a result of Husband’s abusive conduct. When she returned, she learned that Husband had obtained an emergency order from a local night court authorizing him to commit her involuntarily to Western Psychiatric Hospital for psychiatric evaluation. The police arrived for a second time to escort her to the hospital, where she remained for three hours until her release. The next day, she sought the PFA order against her husband.
Based on Wife’s petition, the court issued a preliminary order, dated July 24, 1990, granting Wife’s request for a ten-day exclusion of Husband from the marital residence until final hearing. At the final hearing on August 10, 1990, the parties gave varying and largely unsubstantiated accounts of the July 24, 1990 incident and of the events that precipitated the incident. Wife’s version is that it was an unprovoked attack on her by Husband, brought on by heavy marijuana and cocaine use that night. (August 10, 1990 hearing, Tr., 21). By the time the police arrived, however, she alleged Husband had flushed the marijuana down the toilet. (Tr. 22-23).
Husband denied Wife’s allegation of drug use. (Tr. 90, 124). According to him, he acted in self-defense due to Wife’s threats to kill him with the parties’ .22 [caliber] automatic handgun, which he had reason to believe was loaded at the time. (See generally Tr. 90-124). Although he acknowledged forced entry into the bedroom with a tire iron, he maintained that he had no intention of making physical contact with Wife until, upon entry into the bedroom, he discovered she was pointing the gun at him from underneath the bedcovers. (Tr. 93-94, 121-122).
Husband further alleged that Wife had a history of alcohol and drug abuse problems, thus giving him reason to believe she was under the influence of both that night. (Tr. 103, 121-122). Wife’s hospital records, which were introduced into evidence, indicate that Wife has previously sought treatment for alcoholism. (See Tr. 65). On cross-examination, Wife admitted to certain prescriptive drug use for depression and stress, but said she would not characterize it as “abuse,” and, in any case, stated that she was not under the influence of either alcohol or drugs that night. (Tr. 64-69).
As to the actual threat posed to Husband by the gun, the testimony was, again, conflicting and largely unsubstantiated in both cases. Wife admitted that she had pulled the gun from the headboards of the bed, where it was usually kept, while Husband was attempting to force his way into the bedroom. (Tr. 14-18). She said this was necessary in order to protect herself. Later, however, she testified that the gun was not functional at the time because of a malfunctioning trigger and a bullet that had previously lodged in the cylinder of the gun. (Tr. 14-18). She stated that both she and husband knew the gun was not working that night, and therefore, Husband had no reason to believe that she could have used it against him at that time. (Tr. 14-18). Wife is 5’3 and weighs 124 lbs.; Husband is 6’ and weighs approximately 190 lbs. (Tr. 46).
According to Husband, the gun was, indeed, functional, and had always been functional, and that he was “terrified” when he discovered her pointing it at him. (Tr. 93-94, 121-122).

Trial Court Opinion dated 3/21/92 at 1-4. After the hearing, the judge entered an order which provided, in pertinent part:

1. The parties are:
a. directed to refrain from abusing one another;
b. prohibited from having any contact with one another during the exclusion period;
c. restrained from entering each party’s place of employment/business or the other party’s school; and,
d. prohibited from harassing one another.
2. [Husband] is completely excluded from the residence at 1684 McNary Boulevard, Pittsburgh, PA 15221 and from any other residence where [Wife] may live. Exclusive possession of these premises is granted to [Wife]; [Husband] shall have no right or privilege to enter or be present on the premises. [Husband] is advised that if [Husband] moves back into the residence from which this Court Order excludes him, the [Husband] can be arrested on the charge of Indirect Criminal Contempt....
11. All provisions of this Order shall expire in one year, on August 10, 1991, except that the exclusion order of Paragraph 2 shall expire on August 24, 1990.

Trial Court Order dated 8/10/90 at 1-2. Wife timely filed post-trial motions with the trial court denied. This timely appeal followed.

Wife raises the following issues for our review:

The lower court improperly acted ultra vires the Protection From Abuse Act and without jurisdiction by issuing, sua sponte, a “mutual no abuse” order which directed the appellant, as well as her husband, not to abuse the other party, not to contact the other, not to harass the other, and not to enter the other’s place of business of school.
Whether the lower court’s sua sponte entry of a “mutual no abuse” order against the appellant unconstitutionally deprived her of her due process guarantees, because the appellant was never afforded prior notice or an opportunity to prepare a defense.
‡ ‡ $ $ $
Whether the lower court abused its discretion by issuing an exclusion order of only two weeks against the appellant’s husband.

We will address these issues in order.

Wife first argues that pursuant to the specific language of the Protection From Abuse Act, 23 Pa.C.S.A. § 6101 et seq. (formerly 35 P.S. § 10181 et seq.) (“the PFA Act”), the trial court was without authority to sua sponte enter a “mutual no abuse” order. Specifically, wife contends that because husband did not petition the court for relief under the PFA Act, the trial court was without authority to grant him a protection order against wife. We agree.

In Pennsylvania, it is well-settled that a court must construe the words of a statute according to their plain meaning. 1 Pa.C.S.A. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982); Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). When the words of a statute are unambiguous, they are not to be disregarded under the pretext of pursuing the spirit of the statute. 1 Pa.C.S.A.1921(a). Therefore, we must first determine whether the issue may be resolved by reference to the express language of the statute.

The PFA Act provides only one method by which an individual may seek relief under its provisions:

General Rule. An adult or an emancipated minor may seek relief under this chapter for that person ... by filing a petition with the court alleging abuse by the defendant.

23 Pa.C.S.A. § 6106(a) (formerly 35 P.S. § 10184)). The Pennsylvania Rules of Civil Procedure likewise provide only one method by which an action may be commenced under the PFA Act:

(a) Except as provided in subdivision (b), an action shall be commenced by filing with the prothonotary a petition setting forth the alleged abuses by the defendant.
(b) Filing in the office of the prothonotary of a certified order of a district justice entered pursuant to Section 8 of the Act shall constitute the commencement of an action in the court of common pleas.

Pa.R.C.P., Rule 1902, 42 Pa.C.S.A. Once a petition has been filed, the PFA Act further provides that:

Within ten days of the filing of a petition under this chapter, a hearing shall be held before the court, at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence. The Court shall advise the defendant of the right to be represented by counsel.

23 Pa.C.S.A. § 6107(a) (formerly 35 P.S. § 10185(a)). The statute unequivocally provides that a hearing “shall be held” within ten days of the petition’s filing.

It is a cardinal rule of statutory construction that “words and phrases shall be construed according to rules of grammar, and according to their common and approved usage; .... ” 1 Pá.C.SA. § 1903. Unfortunately, Pennsylvania courts have fostered imprecision regarding the use of the terms “shall” and “may” in prior decisions. Commonwealth v. Ferguson, 381 Pa.Super. 23, 33, 552 A.2d 1075, 1080 (1988). “Generally, though, the term ‘shall’ is construed as creating a mandatory duty, and only rarely in matters of time or form is the term construed as creating only a discretionary duty.” Mamone v. Beltone Hearing Aid Services, Inc., 416 Pa.Super. 555, —, 611 A.2d 755, 757 (1992).

To meet the special circumstances of abuse cases, the legislature fashioned procedures which suspend, temporarily, the due process rights of the alleged abuser. In re Penny, 353 Pa.Super. 70, 74, 509 A.2d 338, 340 (1986). “[Continued suspension, irrespective of motivating factors, cannot be countenanced without judicial limits, subject to substantive or procedural restraint.” Id. In summarizing the intentions of our legislature, this court has clarified the procedures to be used when seeking relief under the act as follows:

The Protection From Abuse Act is a vanguard measure dealing with the problems of wife and child abuse---- To institute an action, the plaintiff must file a petition with the court alleging abuse by the defendant. If emergency relief is needed, the court may enter a temporary, ex parte order to protect the plaintiff or minor children from abuse. In any event, a hearing must be held within ten days at which time plaintiff must prove the charges.

Cipolla v. Cipolla, 264 Pa.Super. 53, 55 n. 1, 398 A.2d 1053, 1054 n. 1 (1979) (emphasis added) (citation omitted). In so stating, this court has effectively eliminated any ambiguity in the legislature’s use of the term “shall.” This same requirement is imposed where action is commenced through the issuance of an emergency ex parte order. In re Penny, 353 Pa.Super. at 74, 509 A.2d at 340. Based on the above, we conclude that the term “shall” as used in section 6107 imposes a mandatory limitations period within which hearings must be conducted.

Here, appellee (husband) apparently filed for and was granted an emergency protection from abuse order against wife on July 23 or 24, 1990. See N.T. 8/10/90 at 29-30, 98; Appellant’s Brief at 10. On July 24, 1990, wife filed for and was granted a preliminary protection from abuse order against husband. The hearing on wife’s petition scheduled for August 1, 1990 was continued because of wife’s hospitalization for pneumonia. It is apparent from the record that the trial court neither scheduled nor continued a hearing on husband’s petition within the 10-day limitations period set forth in the 23 Pa.C.S.A. § 6107(a). Because the limitations period on the alleged petition filed by husband had expired, the trial court had no authority to grant husband relief under the PFA Act. Accordingly, those portions of the August 10,1990 order of the trial court granting a relief to husband against wife are reversed.

Next, wife argues that the trial court’s order violated her due process rights under the constitution. However, it is well-settled that statutes must be construed whenever possible in a manner that avoids a decision on a constitutional issue. Clapper v. Clapper, 396 Pa.Super. 49, 53 n. 5, 578 A.2d 17, 19 n. 5 (1990). Based upon our resolution of wife’s first issue, an analysis of wife’s due process claim is unnecessary.

Finally, wife argues that the trial court abused its discretion by issuing an exclusion order of only two-weeks’ duration against husband. The PFA Act provides that a protection order “shall be for a fixed period of time not to exceed one year.” 23 Pa.C.S.A. § 6108(b). “The court is empowered to grant broad relief to bring about a cessation of abuse.” Cipolla v. Cipolla, supra, 264 Pa.Super. at 55 n. 1, 398 A.2d at 1054 n. 1. Here, wife contends that the record supports a much longer exclusion of husband from the marital residence.

It is up to the trial court as fact finder, to judge the credibility of witnesses and to weigh their testimony. Allegheny County v. Monzo, 509 Pa. 26, 35, 500 A.2d 1096, 1101 (1985). On appeal, it is not the duty of this court to find facts, but to determine if there is evidence in the record to support the trial court’s findings. Id. Findings of fact made by the trial court and supported in the record may not be overturned absent an abuse of discretion. Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc), allocatur denied, 529 Pa. 668, 605 A.2d 333 (1992); Aletto v. Aletto, 371 Pa.Super. 230, 240 n. 8, 537 A.2d 1383, 1388 n. 8 (1988). In defining “abuse of discretion,” this court has stated:

An abuse of discretion is not “merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record.... ” Fee v. Fee, 344 Pa.Super. 276, 299, 496 A.2d 793, 794 (1985)

Monsky v. Sacks, 403 Pa.Super. 40, 42, 588 A.2d 19, 20-21 (1991), allocatur denied, 529 Pa. 635, 600 A.2d 954 (1991). See Rogers v. Johnson & Johnson Products, Inc., 401 Pa.Super. 430, 436, 585 A.2d 1004, 1007 (1990) (abuse of discretion requires prejudice on the part of the trial court, partiality, bias, ill-will or misapplication of law).

In the present case, the trial court was presented with two conflicting accounts of the night of July 23, 1990. Wife alleged that husband, under the influence of marijuana, was hostile and verbally abusive in their bedroom. N.T. 8/10/90 at 7-10. When husband went downstairs, she locked the bedroom door in an effort to prevent an argument. Id. at 11. However, husband used a “crow bar” to open the locked door. Id. at 13. Wife testified that she attempted to scare husband with a gun she believed to be broken. Id. at 14. Husband took the gun, pulled wife to the floor and proceeded to punch and kick her in the face and chest. Id. at 18-20.

Husband’s version of the event differed from that presented by wife. He stated that after a brief exchange in the bedroom, he went downstairs. Id. at 92. While he was downstairs, wife came down, shouted obscenities, then locked herself in the bedroom. Id. at 92. When wife wouldn’t open the door, husband used a tire iron to enter the bedroom. Id. at 93. Once inside the bedroom, wife pulled out a gun. Id. To the best of his knowledge, the gun was not broken. Id. at 94. While struggling over the gun, husband struck wife. Id. After husband took possession of the gun, he restrained wife as she kicked and scratched. Id. at 94-95. Wife subsequently called the police.

It is obvious from the record that the trial court chose not to believe the version presented by wife or husband. Because the trial court is free to independently assess the credibility of witnesses, and to accept or reject the testimony presented, Baraff v. Baraff, 338 Pa.Super. 203, 210-211, 487 A.2d 925, 929 (1985), and because the trial court’s findings have support in the record, we are constrained from finding an abuse of discretion. Therefore, we must affirm the trial court’s exclusion of husband from the marital residence for a two-week period.

Order vacated as to any finding or conclusion regarding protection from wife’s abuse and affirmed in all other respects. Jurisdiction relinquished.

      . Although the order of September 26, 1990 is not a final, appealable order, the trial court entered judgment on the order on March 26, 1991. The notice of appeal filed on October 26, 1990 is timely and proper as it relates to the March 26, 1991 entry of judgment. See Pa.R.A.P., Rule 905(a), 42 Pa.C.S.A.

      . Wife also challenges the sufficiency of the evidence supporting the protection from abuse order entered against her by the trial court. However, because of our disposition of wife's first issue, we need not reach the merits of her sufficiency claim.

      . "[I]n all cases in which emergency ex parte Orders are issued under the provisions of the Act, a hearing shall be held within ten days of a motion by the parties regardless whether the order eventuated from petition under § 10185(a) [now § 6107] or from some other exigent action.” In re Penny, 353 Pa.Super. at 74, 509 A.2d at 340.