text:
    491 A.2d 267
    UNITED STATES FIDELITY AND GUARANTY v. Richard E. GRIGGS, and Jane D. Griggs, t/d/b/a Diamond-Lite Steak House and Cocktail Lounge and Ormond E. Peluso, Individually and as Administrator of the Estate of Noelle Marie Peluso, Deceased. Appeal of Richard E. GRIGGS and Jane D. Griggs, t/d/b/a Diamond-Lite Steak House and Cocktail Lounge.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1984.
    Filed April 12, 1985.

      Clifford A. Rieders, Williamsport, for appellants.
    Robert A. Seiferth, Media, for U.S., appellee.

      Richard J. Callahan, Williamsport, for Peluso, appellee.
    Before WICKERSHAM, DEL SOLE and POPOVICH, JJ.
   WICKERSHAM, Judge:

Appellants Richard E. and Jane D. Griggs, t/d/b/a Diamond-Lite Steak House and Cocktail Lounge, appeal from the order of the Court of Common Pleas of Lycoming County granting summary judgment against them.

In 1977, appellants contacted Mr. Terry Neubold, an agent of United States Fidelity and Guaranty (hereinafter “U.S.F.&G.”), in order to obtain insurance for the restaurant/bar business which they were opening. After some discussion, appellants purchased an insurance package from Mr. Neubold, which was mailed to them with a cover letter. At some later date, but prior to October 26, 1978, Mr. Neubold had a discussion with Mr. Griggs concerning the fact that appellants’ policy did not cover “liquor liability.” As a result of this conversation, Mr. Neubold sent appellants a letter dated October 26, 1978 explaining “liquor liability” coverage.

On August 23, 1981, Noelle Marie Peluso was killed in an automobile accident. Ormond E. Peluso, individually and as administrator of Noelle’s estate, filed suit against appellants, alleging that appellants had served alcohol to the driver of the car which killed Noelle when the driver was visibly intoxicated. Appellants informed U.S.F. & G. of the lawsuit, but U.S.F. & G. subsequently denied coverage under the policy.

On February 17, 1983, U.S.F. & G. filed a declaratory judgment action to obtain a judicial determination of the validity of the liquor liability exclusion in the policy issued to appellants. Appellants filed an answer and, as new matter, requested a declaratory judgment in their favor. Following various other pleadings and discovery, both U.S.F. & G. and appellants filed motions for summary judgment. The trial court, finding the exclusion in the policy unambiguous, ruled, based upon Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 469 A.2d 563 (1983), that summary judgment should be entered for U.S.F. & G., and entered an order to that effect on February 8, 1984. Appellants filed this timely appeal. Appellants’ sole issue before us is as follows:

Was the insurance policy exclusion so clearly worded and conspiciously [sic] displayed as to render the exclusion unambiguous as a matter of the law?

Brief for Appellants at 3.

The Pennsylvania Supreme Court has recently restated the principles governing the interpretation of an insurance contract.

The principles governing our interpretation of a contract of insurance are familiar and well settled. The task of interpreting a contract is generally performed by a court rather than by a jury____ The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument.... Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement.... Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language____ “[I]n the absence of proof of fraud, ‘failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.’ ”

Standard Venetian Blind Co. v. American Empire Insurance Co., supra, 503 Pa. at 304-05, 469 A.2d at 566 (citations omitted). A provision of an insurance policy is ambiguous if reasonably intelligent persons, on considering it in the context of the entire policy, would honestly differ as to its meaning. Garber v. Travelers Insurance Cos., 280 Pa.Super. 323, 421 A.2d 744 (1980); Celley v. Mutual Benefit Health and Accident Association, 229 Pa.Super. 475, 324 A.2d 430 (1974).

Application of these principles to the instant insurance contract leads us to conclude that appellants are bound by the contract they signed. Under the policy in effect at the time of the accident, appellants were covered for “all sums which [appellants] shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies...” R.R. at 37a. Following this section, the word “Exclusions” appears in bold-face, conspicuous type. Under the “Exclusions” caption 16 exclusions, (a) to (p), to the liability coverage are listed. Exclusion (h) is applicable to this case and states as follows:

Exclusions
This insurance does not apply:
za
(h) to bodily injury or property damage for which the Insured or his indemnitee may be held liable
(1) as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages, or
(2) if not so engaged, as an owner or lessor of premises used for such purposes, if such liability is imposed
(i) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or
(ii) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person;
but part (ii) of this exclusion does not apply with respect to liability of the Insured or his indemnitee as an owner or lessor described in (2) above;

R.R. at 37a-38a.

As found by the lower court, exclusion (h)(1) is clearly worded, conspicuously displayed, and unambiguously excludes the liquor liability coverage at issue in this case. Appellants argue that (h)(1) is meant to exclude coverage only to those persons engaged in the “sole” business of selling alcoholic beverages, and thus would not apply to them since they also sell food. We find this argument to be meritless. This would require the insertion of the word “sole” before “business” and would mean a rewriting of the contract. Where the language of a policy, including exclusion clauses, is clear and unambiguous, it cannot be construed to mean other than what it says. Service Trucking Co., Inc. v. American Casualty Co. of Reading, 160 Pa.Super. 331, 51 A.2d 397 (1947).

Nor are we persuaded by appellants’ alternative argument that exclusion (h) taken as a whole, is structurally ambiguous. Appellants contend that subparts (i) and (ii) apply only to part (2). We do not agree; and find that subparts (i) and (ii) obviously apply, by the structure and language of the exclusion, to both parts (1) and (2). Furthermore, the liquor liability exclusion contained in (h) is more or less standard language in tavern general liability policies, and is generally recognized as accomplishing the result intended. See, e.g., Stewart v. Estate of Bohnert, 101 Cal.App.3d 978, 162 Cal.Rptr. 126 (1980); Heritage Insurance Co. of America v. Cilano, 433 So.2d 1334 (Fla. App. 4 Dist.1983); New Hampshire Insurance Co. v. Hillwinds Inn, Inc., 117 N.H. 350, 373 A.2d 354 (1977).

In Kelmo Enterprises, Inc. v. Commercial Union Insurance Co., 285 Pa.Super. 13, 426 A.2d 680 (1981), exclusion (h) — identical to the one at issue herein — was held invalid pursuant to the then applicable standards of Hionis v. Northern Mutual Insurance Co., 230 Pa.Super. 511, 327 A.2d 363 (1974). In his dissenting opinion in Kelmo, however, Judge Watkins, who would have not applied Hionis to the Kelmo case, specifically considered exclusion (h) and found that it was not ambiguous. He noted that “the exclusion is set forth in terms understandable to the average person and that the concept involved (excluding damages or injuries occasioned by reason of serving alcoholic beverages to minors or visibly intoxicated persons) is one which is relatively uncomplicated.” Kelmo Enterprises, Inc. v. Commercial Union Insurance Co., supra 285 Pa. Super, at 31, 426 A.2d at 689. See also, Ranochia v. Reliance Insurance Co. of Philadelphia, 33 Pa. D. & C.2d 531 (1962):

The language of this exclusion [ (h) ] is clear and unambiguous and interpretation thereof is not required or indeed permitted. The intent is clear that the policy coverage does not apply where liability is imposed on an insured as a person engaged in the business of selling or distributing intoxicants by reason of any statute pertaining to the sale, gift, distribution or use of an alcoholic beverage.

Id. at 542.

Unlike the situation in Kelmo, supra, there is no need to consider the application of Hionis, supra, to the instant case. Where, as here, the policy limitation relied upon by the insurer to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to read or understand it. Standard Venetian Blind Co. v. American Empire Insurance Co., supra; Patula v. Northwestern National Insurance Co. of Milwaukee, 329 Pa.Super. 321, 478 A.2d 488 (1984). Furthermore, under Pennsylvania law, if the language of an insurance policy is unambiguous, interpretation of the contract is a matter of law for the court. Eastern Associated Coal Corp. v. Aetna Casualty & Surety Co., 632 F.2d 1068 (3d Cir.1980), cert. denied, 451 U.S. 986, 101 S.Ct. 2320, 68 L.Ed.2d 843 (1981); Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891 (1984). Therefore, summary judgment was indeed proper in this case.

Order affirmed.

      . This case is entitled Peluso v. Walter, and is docketed in the Court of Common Pleas of Lycoming County at No. 81-2876. Named defendants in the case are Wayne Walter (the driver of the car which struck the decedent), Joseph A. and Ann L. Prato, t/d/b/a Joey’s Place (owners of the first bar at which Walter was served), and the Griggs, t/d/b/a Diamond-Lite Steak House and Cocktail Lounge (appellants herein). Recently, our court reversed the grant of summary judgment in favor of the Pratos, see Peluso v. Walter, 334 Pa.Super. 609, 483 A.2d 905 (1984), and remanded the case to Lycoming County for further proceedings.

      . Mr. Peluso, also named as a defendant in the declaratory judgment action by U.S.F. & G., likewise filed an answer requesting that U.S.F. & G. provide coverage for appellants in the case of Peluso v. Walter, No. 81-2876.

      . Mr. Peluso also filed a timely notice of appeal but did not file a brief nor participate in oral argument in this case.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    491 A.2d 270
    Carol A. MILLER v. Mark KRINER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1984.
    Filed April 12, 1985.

      George N. Daghir, Saint Marys, for appellant.
    Vernon D. Roof, Ridgway, for appellee.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   BROSKY, Judge:

This case is before us on appeal from the order of the lower court imposing upon appellant a duty of support and ordering him to pay costs, subsequent to a jury’s determination that appellant was the father of appellee’s child. We find no merit to appellant’s arguments, and, accordingly, we affirm.

Appellant first argues that he should be granted a new trial because the lower court refused to permit him to impeach the credibility of expert witnesses by using the results of H.L.A. blood tests which had been performed on his brother, Michael, and which indicated that Michael had a slightly higher (.02%) likelihood of paternity. Immediately prior to commencement of the trial, by motion in limine, appellee’s counsel challenged appellant’s right to introduce the results of the blood tests which had been performed on appellant’s two brothers. The lower court ruled that the results of the tests might be relevant during cross-examination of expert witnesses concerning effectiveness or lack of certainty of the tests, but that the test results had to be used “in the third-party sense,” challenging the test “not by way of name of Brother Scott or Brother Michael.” In fact, appellant’s counsel cross-examined one of the expert witnesses in detail concerning hypothetical brothers who had similar test results (using the same results as were actually obtained from appellant and his brother Michael), as follows:

Q. Let’s talk about blood types. For example, supposing that my brother was accused of being the putative father and I went and — he went to your laboratory, and he came off with a plausibility of paternity of 99.17 percent and a paternity index of 120 to 1 like we have in this case, and then I came to you and said, “Mr. Houtz, will you take my blood test and run it through the same system that you have run this thing through,” and you came up with the results in my case of not only 120 to 1, but 122 to 1, and you came up with the results of plausibility of paternity of not only 99.17, but 99.19 percent, would you say that the probability of me being the father was greater than my brother?
A. Well, I would have to ask first of all did you both have sexual access to the woman in the case.
Q. I would have to answer in all fairness to you, yes, we both had access.
A. If I remember your question, my answer was going to be that if both men being brothers had sexual access to the mother in the case, I would tell you I couldn’t tell you which one is the father of that child.
Q. So that it not only requires of this 2.9 percent differential or 2.7 percent, I’m sorry, that they might have a higher probability of being the father, but it also requires that they must have had sexual access to the mother? Is that what you are saying?
A. Yes.
Q. What if I proved to you that Mark Kriner did not have sexual access to the mother? What would be the result of your — what would be your opinion on the test results that you gave us here today?
A. It wouldn’t change.
Q. Okay. How can that be if we are talking on the basis of my example with me and my brother when you say, “Well, I can’t say, Mr. Quattrone, that you would be the father unless you tell me that both you and your brother had sexual access,” but in this case of Mark Kriner when I say, “He didn’t have sexual access,” you say, “It doesn’t make any difference, I still think he is the putative father”?
A. Based on the testing results, I would have to say it’s extremely likely if he had sexual access, that he is the father of that child.
Q. That’s the second brother who tested higher?
A. No, Mr. Mark Kriner.
Q. All right now, let’s go back to my example, okay? With brother one and brother two, now brother one has a test, he is 120 to 1 and 99.19. Brother two has the test, he comes out with a higher paternity index of 122 to 1 and 99.19. Based on your test results, why isn’t brother two more probably the father than brother number one? A. Well, first of all I am not at all surprised that two brothers have similar blood types. The basis of this test is genetic inheritance. We are looking at a family situation where we are looking at the blood types of the child; we are looking at the blood types of the mother. We gain a genetic description of the biological father of this child. Because the basis of this test is inheritance, I would expect in a family situation, for two brothers to share blood types. In fact, if you recall, most organ transplantations is [sic] done within a family situation. Often a brother is utilized or. a sibling is utilized as a donor for another sibling. If you tell me two brothers or three brothers have similar or very much aligning or identical blood types, I am not surprised. The probability of paternity is based on calculation of this man’s chance to the random population. A man, a sibling of a man involved in a paternity case is not the random population.
Q. Let me ask you one more question. Of all these thousands of tests that you have done, have you found two people who were within the orbit of your 99 percent plausability of paternity for the same woman?
A. We have had cases where there were two men accused, and we were not able to exclude the other man. Q. That both guys tested within the orbit of the possibility?
A. I don’t recall if they had the exact same plausibility of paternity, but they were not excluded and did have a plausibility of paternity.

We find that appellant’s counsel was given plenty of leeway in his attempt to impeach the credibility of appellee’s expert witness and discredit the results of the tests. In view of the fact that there was no testimony that appellant’s brother Michael had engaged in intercourse with appellee, we find that the lower court did not err in prohibiting the introduction of Michael Kriner’s blood test results.

Appellant argues further that the Uniform Act of Blood Tests to Determine Paternity, 42 Pa.C.S. § 6133 (hereinafter referred to as the Act), authorizes a court to order the testing of the blood of any person alleged by a party to be the father of the child in question, and that the results of such test should be admissible by either party to aid in the determination of parentage. A panel of our court has determined that a court does not have the authority to order the testing of blood of persons who are not parties to the action. In re Mengel, 287 Pa.Super. 186, 429 A.2d 1162 (1981). We therefore reject this argument.

Appellant next argues that the Act does not encompass the H.L.A. test, but only the red blood cell or exclusionary test, and that since the lower court’s order of December 30, 1982 ordered appellant to submit to blood tests pursuant to the Act, the H.L.A. test results should not have been admitted into evidence absent stipulation of the parties. Section 2 of the Act provides:

In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.

The Act provides the authority for court-ordered “blood tests”, and does not limit the tests to red blood cell tests only. We find that Section 2 of the Act provides the authority for court-ordered H.L.A. blood tests as well as for red blood cell tests.

Appellant argues that the lower court erred in allowing into evidence, over appellant’s objection, a birth certificate which listed appellant as the father of appellee’s child. We find no merit to this argument. Noting that the presence of the child in the courtroom didn’t prove his birth date, the trial judge admitted the birth certificate into evidence, with a cautionary instruction to the jury. We find no prejudice to appellant from the introduction of this document, in light of the cautionary instruction. Cf Groulx v. Groulx, 98 N.H. 481, 103 A.2d 188 (1954).

Appellant argues that a misstatement of evidence by appellee’s counsel during closing argument so prejudiced appellant’s case as to require a new trial. We disagree. Upon reviewing the testimony of one of appellant’s witnesses, one Kelly Jolene Wilson (a friend of appellee), counsel stated that he had asked Ms. Wilson to name the person who had asked Mark Gagliardi to leave the courtroom, and that Ms. Wilson had replied that appellant’s counsel had asked him to leave. After a sidebar discussion, appellee’s counsel stated to the jury: “Ladies and gentlemen, you will note that prior to the objection by Mr. Quattrone [appellant’s counsel] I had indicated that Mr. Gagliardi was asked to leave by Mr. Quattrone. I stand corrected. You have heard the record of this case. That’s why we have a court reporter here, and she has indicated in .response to my question to Kelly Jolene Wilson, Mr. Quattrone asked him to be here.” In addition, the trial court pointed out: “For the record please, I want to make it clear that Mr. Roof [appellee’s counsel] has acknowledged a misstatement. The record does not show that Mr. Quattrone asked Gagliardi to leave the courtroom. The record does show, for what it’s worth, it’s for you to judge, that witness Jolene or Kelly Jolene Wilson testified that Mr. Quattrone asked him to be present, asked Mr. Gagliardi to be present.”

The resolution of whether or not remarks made by counsel in an argument to the jury warrant a new trial requires a determination based upon an assessment of the circumstances under which the statements were made and the precaution taken by the court and counsel to prevent such remarks from having a prejudicial effect. Martin v. Philadelphia Suburban Transport Co., 435 Pa. 391, 257 A.2d 535 (1969). In the case before us, in light of counsel’s acknowledgment of his error, and in light of the trial court’s instruction to the jury, we find no prejudice to appellant.

Appellant argues that the lower court erred in charging the jury that they might infer from the defendant’s failure to produce the testimony of Mark Gagliardi that Mr. Gagliardi’s testimony would have been unfavorable to the defendant. The court’s charge was as follows:

In presenting his case, the defendant did not produce Mr. Gagliardi. The general rule is that where evidence, which would properly be part of a case, is within the control of or available to the party whose interest it would naturally be to produce it, and he failed to do so without satisfactory explanation, you may draw the inference that if produced, it would be unfavorable to him. You should apply that rule if you find a factual basis to do so.

In Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952), the defendant in an automobile accident suit testified that a person not a party to the case had made a statement within a few minutes after the accident indicating his responsibility for the accident. The defendant did not produce the witness for trial, although the defendant knew the person’s address. There was no indication that the person was unavailable for trial. The trial court gave the missing witness instruction to the jury, but added, “the court is of the opinion that if [the witness] was a party in any way to the accident he was equally available to both plaintiffs and the defendant.” In reversing the trial court’s decision, the Supreme Court found that it was “naturally” in the defendant’s interest to produce the third party as a witness, since the defense rested upon the contention that the third party was responsible for the accident; that such evidence was within the control of the defendant; that the defendant had offered no satisfactory explanation for the failure to produce the witness; and that the trial court’s instruction should therefore have been given only with respect to the defendant.

In the case before us, during cross examination of the plaintiff, appellant’s counsel asked the witness if she had ever dated Mark Gagliardi. Counsel for appellee objected to the question. At sidebar, the judge ruled that counsel was entitled to challenge the plaintiff’s credibility, but that he regarded the line of questioning as being inflammatory unless counsel contradicted the plaintiff’s answers with affirmative testimony. Counsel stated that he did have a witness to back up his inquiry, whom he intended to use. Proceeding to cross-examine the- witness, counsel asked her if she knew Mark Gagliardi, if she had dated him, and if she had ever had sexual intercourse with him during the months of May through July, 1981. The witness responded that she knew Mr. Gagliardi, but had not dated him or had sexual intercourse with him. Although appellant’s counsel subsequently called one Kelly Jolene Wilson, who testified that she knew plaintiff and Mr. Gagliardi had dated prior to May or June of 1981 and that she had seen them together on one occasion in June, 1981, walking down a road, kissing and holding hands, counsel did not elicit any testimony as to whether or not appellee had engaged in sexual intercourse with Mark Gagliardi. Although Mr. Gagliardi was present in the courtroom during at least part of the trial, appellant’s counsel did not call him to testify, and did not in any way attempt to rebut appellee’s testimony on cross-examination that she had not engaged in sexual intercourse with Mark Gagliardi; furthermore, during closing argument, appellant’s counsel strongly suggested to the jury that Mark Gagliardi was the father of the child.

Under the circumstances, we find: (1) that it was naturally in appellant’s interest to produce Mark Gagliardi as a witness, since the defense was attempting to show that Mr. Gagliardi was the father of appellee’s child; (2) that the witness was within the control of appellant, since appellant’s counsel had been responsible for Mr. Gagliardi’s presence in the courtroom, had led the court and opposing counsel to believe that he would be presenting testimony of sexual intercourse between appellant and the witness (testimony which would be unlikely to come from anyone other than Mark Gagliardi), and since discovery was not available to appellee unless authorized by special order of court, Pa.R.C.P. No. 1910.9, the action having been commenced as a support action; (3) that appellant offered no satisfactory explanation for the failure to call the witness; and (4) that the lower court did not err in giving the missing witness charge to the jury. Haas, supra.

Appellant next contends that the lower court erred in admitting into evidence testimony concerning a lab report which dealt with the H.L.A. test results performed on appellant. The testimony was elicited from Terry Houtz, supervisor of the laboratory which conducted the H.L.A. tests (the person responsible for all the activities in the H.L.A. laboratory), and from Margaret Ann Brooks, the general supervisor of the lab. Both witnesses were qualified as experts, and were accepted as such by the lower court. These two persons had originally programmed the computer which was used to perform the calculations necessary for determining paternity indices, and had supervised the testing and prepared the report for this particular case.

Although the report bore the stamped “signature” of Robert E. Wenk, M.D., who did not appear to testify, since the report itself was not admitted into evidence, and since our examination of the notes of testimony of the trial convinces us that an adequate foundation was laid for the introduction of the test results by the two expert witnesses, we find that the lower court did not err in allowing the introduction into evidence of the results of the H.L.A. tests.

Appellant’s final argument is that the lower court improperly taxed appellant with the costs of the H.L.A. tests, including the expert witness expenses. The Act provides:

The compensation of each expert witness appointed by the court shall be fixed at a reasonable amount. It shall be paid as the court shall order. Subject to general rules, the court may order that it be paid by the parties in such proportions and at such times as it shall prescribe or that the proportion of any party be paid by the county and that after payment by the parties or the county, or both, all or none of it be taxed as costs in the action. Subject to general rules, the fee of an expert witness called by a party but not appointed by the court, shall be paid by the party calling him, but shall not be taxed as costs in the action.

It is clear that the lower court ordered appellant to submit to blood tests. We interpret this section of the Act as empowering a trial court to impose on appellant the costs of the tests and the compensation of any expert witnesses called to testify with respect to those tests.

Having found no merit to any of appellant’s arguments, the order is accordingly affirmed.

      . Human Leukocyte Antigen (H.L.A.).

      . Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983), did not decide the specific issue which is now before us. Turek held that, apart from the Act, H.L.A. blood tests are relevant and admissible evidence of the likelihood of paternity, provided that a proper foundation is laid. (Appellant in the case before us does not argue lack of a proper foundation).

      . The record indicates that Mark Gagliardi left the courtroom prior to the close of appellant’s case.

      . But see, Raffaele v. Andrews, 197 Pa.Super. 368, 178 A.2d 847 (1962), and Green v. Green, 182 Pa.Super. 287, 126 A.2d 477 (1956).


author: POPOVICH, Judge:

text:
    491 A.2d 276
    COMMONWEALTH of Pennsylvania v. John FIORE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1984.
    Filed April 12, 1985.

      C. Grainger Bowman, Harrisburg, for appellant.
    Paul M. Yatron, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order vacating judgment of sentence and directing the State of Delaware to remand appellant, John Fiore, to the Commonwealth of Pennsylvania to serve sentence. We reverse.

After pleading guilty to 24 counts of non-compliance with various tax statutes (see 72 P.S. §§ 2614.21(a), 7268(b)), appellant was sentenced to 11V2 to 23 months imprisonment and 8 years probation, which was to be served at the completion of the term of imprisonment. Also, appellant was ordered to pay the cost of prosecution and $100 to the Commonwealth.

A timely motion to modify sentence was filed seeking the Dauphin County court’s approval to have appellant serve his Pennsylvania sentence (ordered to commence on December 26, 1983) in the State of Delaware upon his sentence in that State for similar tax violations. Thereafter, under the mantle of 42 Pa.C.S.A. § 9761(b), appellant filed a motion substantiating his request that service of his Delaware sentence (a period of incarceration up to 23 months to commence also on December 26, 1983) either satisfy or be credited against his Pennsylvania sentence.

By order dated December 14, 1983, the Dauphin County court directed that appellant “be given full credit for time served by him under the sentence imposed by the Superior Court of Delaware (New Castle County) in the action known as State of Delaware v. John Fiore and Zurich Corp., Cr. A. Nos. N-82-10-1732 through N-82-10-1787.”

On February 9, 1984, a rule to show cause was issued upon appellant by the Commonwealth, and contained therein were the following relevant averments:

3. Defendant commenced his prison sentence in the State of Delaware on December 26, 1983, which was the same day set for commencement of his sentence in Pennsylvania.
4. On or about January 4, 1984, defendant was released by correctional authorities to the State of Delaware and permitted by them to serve his sentence in what is known in Delaware as “supervised custody”.
5. “Supervised custody”, as that program is known in the State of Delaware, is in all respects identical to a sentence of probation in the Commonwealth of Pennsylvania or the release on parole in the Commonwealth of Pennsylvania.
6. Neither the Office of Attorney General of the Commonwealth of Pennsylvania, Dauphin County Adult Probation Office nor Your Honorable Court were consulted or notified by authorities in the State of Delaware prior to defendant’s release on supervised custody.
7. On or about January 30, 1984, the Commonwealth first learned of defendant’s release from prison in the State of Delaware.
8. The law of the Commonwealth of Pennsylvania and the Order of this Honorable Court dated December 14, 1983, requires that defendant be returned to the Commonwealth of Pennsylvania to serve the remainder of his term of imprisonment as imposed by this Court, with credit for ten days served in prison in the State of Delaware.
9. The defendant’s release on probation or parole in the State of Delaware is entirely contrary to the understanding of the parties when the plea was entered ... and when sentence was imposed pursuant to that plea.
10. The defendant is entitled to no credit towards his. Pennsylvania sentence for time in which he was not actually incarcerated in the State of Delaware. WHEREFORE, the Commonwealth pray[ed the] Honorable Court enter an Order declaring defendant released from custody in the State of Delaware and remanding him to the Commonwealth of Pennsylvania to serve the remaining portion of the sentence imposed by [the] Honorable Court____
Respectfully submitted,
LeROY S. ZIMMERMAN ATTORNEY GENERAL

A rule to show cause hearing was held February 21. At that proceeding, counsel for appellant noted at the outset that his client was at work in Wilmington, Delaware under an authorized program conducted by the Delaware Department of Corrections. Further, counsel pointed out that appellant was classified “as an inmate in the inmate population under the Delaware Department of Corrections,” and, therefore, to be present at the show cause hearing would have placed him in violation of the Delaware Department of Corrections’ restrictions as to his movements.

We observe that in appellant’s answer to the rule to show cause, paragraph 8, he denied being “released” from the custody of the Delaware authorities. Rather, he stated he “remain[ed] within the inmate population of the Delaware Department of Corrections”. Also, in paragraph 4, appellant admitted “that, as of January 20, 1984, [his] inmate classification by the Delaware Department of Corrections permitted] certain supervised custody conditions to attach to [his] service of sentence.”

It was the court’s opinion that the sentence issued in Delaware, aside from being contrary to its normal concepts of punishment, was “just not the type of confinement which was contemplated in connection with the offense in the State of Pennsylvania.” Counsel for the Commonwealth agreed and added that he had opposed, consistently, a work release program for appellant.

After hearing argument on the jurisdiction to decide the rule to show cause, the court entered an order making the rule absolute and directing Delaware to remand appellant to Pennsylvania to serve the remaining portion of the sentence initially imposed. Further, the court vacated the December 14, 1983 order giving appellant credit for time served in Delaware. This appeal followed.

We find that the dispositive issue at bar concerns the authority of the court below to vacate (or to act in any capacity in regard to) the initial sentence entered. Absent any such authority, the action of the court below is a nullity.

We commence our discussion with the observation that the courts of this Commonwealth, at common law, had the power to vacate a judgment of sentence and to impose a new sentence, even if more severe, so long as such action took place within the same term of court as did the original sentence. Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978). Presently, this power is codified in section 5505, 42 Pa.C.S.A., which reads:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

The Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978.

The caveat contained in section 5505, in respect to the power of a court to “modify or rescind” any order, was articulated over eight decades ago by the United States Supreme Court in Gagnon v. United States, 193 U.S. 451, 456, 24 S.Ct. 510, 511, 48 L.Ed. 745 (1904); namely:

The power to amend its records, to correct mistakes of the clerk or other officer of the court, inadvertencies of counsel, or supply defects or omissions in the record, even after the lapse of the term, is inherent in courts of justice.

Accord Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970). We add to this list of exceptions, allowing a modification (decrease or increase) in the punishment initially imposed, the provision sanctioning such a change where the “punishment was procured by appellant by such fraud as would make a complete nullity of the[for example, prior sentencing] proceedings.” Commonwealth v. Coleman, 271 Pa.Super. 581, 585-586, 414 A.2d 635, 637-38 (1979). We find the reason to be self-evident.

It certainly would not serve the ends of justice, not to mention the affront to the court itself, to allow an accused to secure a more lenient sentence than would have been issued had it not been for the use of misinformation intended to keep from the sentencing agent information impacting on the type and length of punishment to be meted out.

Herein, on December 14, 1983, the day appellant was sentenced, the court below indicated that appellant was to be given credit for the time served by him “under the sentence imposed by the Superior Court of Delaware”. While it may be true, as the court below recites in its opinion to us, that “the status of this defendant in the State of Delaware was contrary to the understanding of the parties when the plea was entered ... and was indeed contrary to the understanding of this Court when the sentence was imposed pursuant to the plea”, “the sentence, as recorded, indicates the imposition of no other conditions, or that it was ‘tentative’ in any sense, except for the condition before noted, and we are bound by the record.” Commonwealth v. Silverman, 442 Pa. 211, 218, 275 A.2d 308, 312 (1971), cert. denied, 405 U.S. 1064, 92 S.Ct. 1490, 31 L.Ed.2d 794 (1972).

To the extent that the court below and the Commonwealth argue that the work release program/probation was not the type of (or equivalent to the) sentence contemplated by the parties, we wish to respond that in Pennsylvania the Sentencing Code makes it clear that a term of “probation is a sentence. The Act of December 30, 1974, P.L. 1052, No. 345, § 1, as amended, 42 Pa.C.S.A. § 9721(a)(1). Accord Commonwealth v. Johnson, 250 Pa.Super. 431, 434 n. 3, 378 A.2d 1013, 1018 n. 3 (1977) (Dealing with The Act of December 6, 1972, P.L. 1482, No. 334, § 1301, which now appears in modified form at 42 Pa.C.S.A. § 9721).

Albeit the Delaware work release program, under which appellant became eligible to work at his original place of employment during the day with a return to his approved residence thereafter, may not comport with the lower court’s “normal concepts of punishment”, nonetheless, the program of probation does constitute punishment since it is unquestionably a restriction on appellant’s freedom and a deprivation of his liberty within the meaning of the Fourteenth Amendment. Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967).

Accordingly, since the court below placed no other conditions on appellant’s Pennsylvania sentence other than it be served concurrently with the Delaware sentence, and since there is no proof that the sentence was procured by the perpetration of a fraud upon the court, the fact that the vacation of sentence was made neither within the term of the original sentence nor within 30 days thereafter, the vacation of sentence clearly was invalid. Compare Commonwealth v. Coleman, supra; Commonwealth v. Gallagher, 200 Pa.Super. 136, 186 A.2d 842 (1962).

Of necessity, the aforesaid renders ineffectual the court’s further order directing the return of appellant by Delaware penal authorities prior to his completion of his sentence in that jurisdiction. Cf. Commonwealth v. Liscinsky, 195 Pa.Super. 183, 186, 171 A.2d 560, 561 (1961) (“... in the interest of orderly administration of justice, [the second sovereign should] ... postpone exercise of its jurisdiction by not taking the defendant into custody until the first sovereign has exhausted its remedy against him.”).

The order is reversed, and the December 14, 1983 order directing that appellant be given full credit for the time served by him under the sentence imposed by the Superior Court of Delaware is reinstated. Jurisdiction is relinquished.

      . In the record appears a letter dated February 6, 1984 from counsel for appellant to the court below outlining the work release program. It reads in relevant part:
      On January 5, 1984 Mr. Fiore was transferred to Plummer Center from Gander Hill Correctional Facility, a classification facility and prison also operated by the Delaware Department of Corrections. His classification for service of sentence at Plummer Center was made in the ordinary course. As of January 20, his classification permits certain work release/supervised custody conditions to attach to his service of sentence. Mr. Fiore has not been paroled and remains a member of the inmate population of the Plummer Center.
      At Plummer Center, Mr. Fiore has been placed on work release/supervised custody status with the complete knowledge and approval of the Delaware Department of Justice (See letter of Christopher J. Curtin, Deputy Attorney General, dated December 28, 1983, copy enclosed). The purpose of work release/supervised custody is to allow Mr. Fiore's business operations to be undertaken while Mr. Fiore remains in custody. The substantial restitution to which Mr. Fiore committed himself in Delaware and in Pennsylvania would not otherwise be viable. The State of Delaware has acknowledged this reality after an extensive investigation into Mr. Fiore’s background, work habits, circumstances, and finances.
      The conditions of Mr. Fiore’s work release/supervised custody at Plummer House are as follows:
      1. Mr. Fiore must report, in person, for an in-depth interview two to three times every week, regarding his living conditions, working conditions, etc., which interview is held at Plummer Center.
      2. Mr. Fiore is required to live in Delaware and cannot leave the State.
      3. Mr. Fiore must be in one hour’s telephone reach of the Delaware Department of Corrections at all times.
      4. Mr. Fiore must be in residence from 11:00 p.m. to 7:00 a.m. every evening.
      5. Mr. Fiore has a Host (in this case his wife, Barbara). It is required that the Host be a blood relative living in the State of Delaware. This has forced Barbara Fiore to move from New York City (the site of her job) to Wilmington, and she must now commute to New York City to her job.
      6. Mr. Fiore’s residence must be approved by the Delaware Department of Corrections, and his approved residence is an apartment at his place of employment which has been built by Fiore’s employer specifically for Mr. Fiore and his family.
      7. Mr. Fiore is not permitted to drink any kind of alcoholic beverages, either in public or at home. He cannot enter any establishment that serves liquor.
      8. Until last week, Mr. Fiore was not permitted to drive a motor vehicle. As of this date, he is permitted to drive, but only to work or for work related purposes.
      9. Mr. Fiore is subject 24 hours a day to be called in for chemical and urine tests, and accordingly, he is not permitted to take any medication of any kind without prior authorization.
      10. Mr. Fiore must maintain a job to stay in the work release/supervised custody program, and Mr. Fiore’s employer is interviewed by phone every week regarding his job progress.
      11. Mr. Fiore must pay weekly toward his fines and restitution depending upon his salary.


author: PER CURIAM:

text:
    491 A.2d 281
    Robert W. WOLFE, Appellee, v. Lois J. WOLFE, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1984.
    Filed April 12, 1985.

      Gretchen S. Reed, Beaver, for appellant.
    Robert W. Lewis, Jr., Ambridge, for appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from a declaratory judgment that an agreement entered into by the parties on August 27, 1979, is a valid post-nuptial agreement and bars appellant’s claim for equitable distribution of marital property in the instant divorce action. We agree with the court below and therefore affirm.

Robert and Lois Wolfe were married on March 15, 1954. They have three children, all of whom are now adults. In 1968, Robert quit his employment with Halstead Engineers to start his own business, Pittsburgh Tubular Shaft Company, Inc. For most of the marriage, Lois remained at home raising the children. In 1974 or 1975, Lois sought and obtained employment as a secretary. In 1979, marital problems arose which ultimately resulted in Lois leaving the marital home in August of that year. The parties discussed, and ultimately reduced to writing, an agreement under which Robert would pay Lois $25,000 and Lois would execute a deed vesting title to the marital residence in Robert. Robert would also assume custody and sole economic responsibility for the children. Lois would also receive certain personal property.

Robert obtained counsel to draft the agreement. Discussions were held and revisions made before the agreement was reduced to final form by Robert’s counsel. Attached to the agreement was a net worth statement prepared by Robert listing his assets. Robert gave a copy of the final agreement to Lois and advised her to review it with her own attorney. A few days later, Robert’s attorney also advised Lois to seek counsel to review the agreement before she signed. Lois declined their advice and signed the agreement on August 29, 1979. Shortly, thereafter, Lois left the marital home.

After the separation, the parties saw each other on a social basis until February 1981, going out to dinner and to plays and occasionally engaging in sexual intercourse. The relationship ended when Robert began to see another woman. On March 18, 1982, Robert filed for divorce. Lois filed an answer and counterclaim alleging that the agreement was invalid and requesting equitable distribution, alimony, counsel fees and costs. The parties requested a declaratory judgment pursuant to Pa.R.Civ.P. 1602. The Honorable Joseph S. Walko concluded that the agreement was valid and precluded the claim for equitable distribution. This appeal followed.

Appellant’s arguments on appeal are intertwined. First, she claims that the agreement is not a “complete” property settlement agreement because she received only one-half of the parties jointly-owned properties and none of the property owned solely by her husband. She also contends that, since the Divorce Code of 1980, 23 P.S. § 101 et seq., defines marital property so as to include property held in the name of one spouse as long as such property was acquired during the marriage, she is entitled to equitable distribution of that property.

The long-standing law of this commonwealth is that postnuptial agreements are presumed to be valid and binding on the parties. McGannon v. McGannon, 241 Pa.Super. 45, 359 A.2d 431 (1976). With respect to such agreements, the Divorce Code of 1980 states, “This act shall not affect any marital agreement executed prior to the effective date of this act____” 23 P.S. § 103. Under prior law, the party seeking to nullify such an agreement had the burden of proving, by clear and convincing evidence, either that a reasonable provision for the claiming spouse was not made at the time of the agreement, or, in the absence of such a provision, a full and fair disclosure of the other spouse’s worth was not made. Ratony Estate, 443 Pa. 454, 277 A.2d 791 (1971).

Appellant herein does not argue that the 1979 agreement was unfair or did not make reasonable provision for her nor does she claim that appellee failed to fully disclose his assets. Rather, she based her claim on the premise that the agreement is not a complete one because she could not waive her right to equitable distribution (pursuant to the Divorce Code of 1980) since that right had not yet come into existence. We disagree. The New York divorce law contains a provision similar to 23 P.S. § 103, quoted above. In reviewing a similar case, the New York Supreme Court noted:

Part of the quid pro quo which one gives up when one enters into a comprehensive agreement such as this is, [sic] the possibility that the law may change in one’s favor. A stable and sure arrangement in the present is preferred to the mere “possibility” of a better result in the future.

Boss v. Boss, 107 Misc.2d 984, 436 N.Y.S.2d 167 (1981). Appellant’s argument that the agreement must be nullified because she received only what she was entitled to under the prior law is not persuasive. While it may be true that appellant could not have forced a more favorable property settlement in court, nothing in our law precluded the parties from being more generous to one another than the court would have been.

Appellant. also contends that the language of the agreement itself does not support an interpretation of the agreement as a complete property settlement but only a partial settlement (which therefore would entitle appellant to equitable distribution of property not covered in the agreement). We believe there is ample support in the record for Judge Walko’s finding that the agreement effectively disposed of all of the then-existing marital property and was indeed intended to dispose of all property. Included in the agreement is a paragraph in which each party releases the other from “all claims, demands, actions, causes of action or suits at law or in equity____” While not controlling, we also note the recital to the effect that the parties have come to an agreement as to “all of their said matters of property.” The exhibit attached to the agreement disclosed appellee’s sole assets as well as the sole assets of appellant. We cannot conclude that the failure to transfer one party’s sole assets to the other party indicates an intention that the agreement is less than complete.

Judgment affirmed.

      . Although the request for declaratory judgment also asked for a determination as to Lois's claims for alimony and counsel fees. Judge Walko did not discuss these claims in his opinion or in the accompanying order. We therefore confine our review to the issue of the agreement’s effect on Lois’s equitable distribution claim.

      . Appellant also claims that the parties continued their marital relationship after the signing of the agreement and that such activity abrogated the the agreement. This argument is inconsistent both with prior case law on settlement agreements and with recent cases determining the meaning of "living separate and apart”, under 23 P.S. § 201(d). Judge Walko found the instant agreement to be a complete property settlement agreement rather than a mere separation agreement providing for support. In such circumstances, any subsequent reconciliation of the parties does not affect the validity of the agreement. Commonwealth ex rel. DiValerio v. DiValerio, 169 Pa.Super. 477, 82 A.2d 687 (1951). Further, under the facts of this case, the parties’ activities, which consisted primarily of "dates” with occasional sexual intercourse while the parties continued to maintain separate residences, can hardly be called a reconciliation. See, Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984).

      . In McGannon v. McGannon, supra, this court rejected the argument that the requirement of "reasonable provision” is not met if the party attacking the agreement received only what she was entitled to as a joint owner of tenancy-by-the-entireties property.


text:
    491 A.2d 835
    Arthur BUCCHIANERI, As Executor Of The Estate of Eleanor Bucchianeri, Deceased, v. EQUITABLE GAS COMPANY, Appellant, v. GANNETT-FLEMMING CORDRY AND CARPENTER, INC., Bernard Bucchianeri, Renda Construction Company, Carroll Township Sewage Authority and Arthur Bucchianeri. Arturo BUCCHIANERI v. EQUITABLE GAS COMPANY, Appellant, v. GANNETT-FLEMMING CORDRY AND CARPENTER, INC., Western Pennsylvania Water Company, Bernard Bucchianeri, Renda Construction Company, and Carroll Township Sewage Authority.
    Superior Court of Pennsylvania.
    Argued Aug. 29, 1984.
    Filed March 1, 1985.
    Reargument Denied May 14, 1985.

      William R. Tighe, Jr., Pittsburgh, for appellant.
    George, Retos, Jr., Washington, for Arthur Bucchianeri, appellee.
    Before ROWLEY, JOHNSON and HESTER, JJ.
   PER CURIAM:

This consolidated appeal is from judgments of the Court of Common Pleas of Washington County entered January 11, 1983. The underlying basis for the cause of action was a natural gas explosion which occurred in Carroll Township, Washington County on March 13, 1977. Eleanor Bucchianeri died as a result of the explosion. Her brother-in-law, Arturo Bucchianeri, was injured and his home destroyed.

Both Arturo Bucchianeri and Arthur Bucchianeri, executor of the estate of Eleanor Bucchianeri, filed actions against appellant, Equitable Gas. In each action, appellant then joined as additional defendants-appellees Gannett-Flemming Cordry and Carpenter, Inc., (hereinafter Gannett-Flemming), Bernard Bucchianeri, and Renda Construction Company (hereinafter Renda). Following a jury trial, appellant was found to be 90% negligent. The Estate of Arturo Bucchianeri was found to be 10% negligent. Verdicts were rendered in favor of Gannett-Flemming and Renda and the other additional-defendant appellees. The court had directed that a verdict be entered on behalf of Bernard Bucchianeri. Damages were assessed by a jury in the Arturo Bucchianeri case in the amount of $130,000.00 and in the case of Eleanor Bucchianeri in the amount of $73,000.00.

Appellant filed post-verdict motions, alleging various trial errors as a basis for a new trial. Said motions were denied, and judgments entered on the verdicts. Appellant thereafter perfected this appeal.

Appellant avers that the trial court committed six errors, and that the verdicts were excessive. Although we will address all the alleged errors, we find the first two assignments of error are crucial and prove to be dispositive. We reverse and remand for a new trial.

Initially, appellant contends that the trial court erroneously permitted appellees’ witness, Carl Natale, who was ruled to be not qualified as an expert, to testify as to his expert opinion. Mr. Natale examined the scene following the explosion and conducted detailed interviews, tests, and measurements. He inspected the interior and exterior of the premises and reviewed numerous photographs of the scene which were taken immediately after the explosion. The trial judge informed appellees’ counsel that he could ask Mr. Natale to state any physical facts helpful to him. However, the court cautioned counsel not to ask for “an opinion, or a conclusion, or a theory, or a concept.” The judge observed, “[Mr. Natale] has taken pictures; he has measured; he’s drawn a diagram; he’s done adjuster’s work. I’m not going to make him an expert out of these mere obvious conclusions, like there was an explosion and the explosion was in the cellar.”

Testimony was later elicited from this witness as follows:

Q. Based on your observations that you’ve just told us about Mr. Natale; the 3" line, the impression where it was; the terra cotta line; the sewer line; the drain; where you estimate the explosion, the area where the explosion took place from your observations of where the wall was blown out in the circle here on the diagram; based on all these observations, how did the gas that caused the explosion get into that home?
MR. TIGHE: Objection, Your Honor.
THE COURT: What is the objection?
MR. TIGHE: I don’t believe the witness has been qualified to give an opinion as to an expert question, as to an expert opinion. There is no proper foundation factually for any such opinion. Secondly, the opinion which we were furnished in a report pursuant to Court Order, by which the Plaintiff is bound, is not supported by any evidence.
THE COURT: I don’t conceive that the answer he’s seeking at this, moment is an opinion. If I understand the situation correctly, he is necessarily going to have to contend that there is only one way this could have happened; otherwise it could not come in as factual testimony. He is testifying at this moment as a factual witness from these observations that there is only one way this could have happened. I think that is for cross-examination and the truth or falsehood of what he says is a jury question. With that explanation, I’m going to overrule the objection, again, making it clear for the record that I am not treating this man as an opinion but a factual witness. Proceed Sir.

(Question read back by Court Reporter).

A. Based on my observations at the scene, I determined the explosion was caused by natural gas that entered the structure through a serious leak at the 3" coupling; found its way through the terra cotta drain line that extends directly to the furnace room where the center of the explosion was occurred.
THE COURT: Is the necessary import of what you said that from what you saw that is the only way that could have happened?
A. Based on my observations that’s the only way the gas would have entered the structure in sufficient quantity to cause the explosion.

It is axiomatic that questions concerning the admission or exclusion of evidence are within the sound discretion of the lower court and will be reversed on appeal only where a clear abuse of discretion exists. Camp Construction Corp. v. Lumber Products Co., 311 Pa.Super. 381, 457 A.2d 937 (1983). “To justify a reversal because of a ruling on evidence, the ruling must not only be technically erroneous, but it must also be harmful to the appellant.” Furey v. Thomas Jefferson University Hospital, 325 Pa.Super. 212, 219, 472 A.2d 1083, 1087 (1984). When improperly admitted testimony may have affected a verdict, the only correct remedy is the grant of a new trial. Mapp v. Dube, 330 Pa.Super. 284, 288-289, 479 A.2d 553, 555 (1984).

We find the challenged testimony to have been improperly admitted and clearly prejudicial to appellant’s case. The theory advanced by appellees at trial was that the cause of the explosion was a leak emanating from a break in appellant’s main line in the street near the front of Arturo’s home. Appellant asserted that the source of the natural gas was a hole in an improperly maintained house line under the control of Arturo Bucchianeri. The witness in question testified that he believed a severe leak existed at the 3" main line controlled by appellant. Natale admitted that the portion of the main line which coupled with Arturo Bucchianeri’s house line had been removed before he examined the scene of the explosion.

The trial court properly refused to qualify Natale as an expert for purposes of expressing an opinion, and sought to limit his testimony to that of a fact witness. Concededly, “the division whether testimony constitutes fact or opinion may be difficult, for ‘there is no litmus test for fact versus opinion.’ ” Commonwealth ex rel. B. v. B., 295 Pa.Super. 1, 10, 440 A.2d 1192, 1197 (1982), quoting Strausser v. Strunk, 222 Pa.Super. 537, 544, 295 A.2d 168, 173 (1972). However, in the case at bar, the testimony-elicited was not based upon the witness’s own perceptions or observations of the critical pipe. The sole purpose of the objectionable question was to draw inferences from the facts and present a conclusion to the jury as to what caused the explosion. We hold that the witness’s testimony constituted expert opinion testimony and was improperly admitted. We further hold that this ruling warrants reversal because of the highly prejudicial nature of the witness’s pronouncement and the likelihood that it affected the verdict.

Appellant next alleges that the trial court erred in refusing to charge the jury with respect to any theory of liability of additional defendants Gannett-Flemming and Renda, and in refusing to admit the Gannett-Flemming contract.

Several months prior to the explosion, a sewer excavation project was underway on the street in front of the Bucchianeri residence. Renda Construction Company was the contractor, and Gannett-Flemming was the engineer. During the trial, these parties executed a joint tort-feasor release settlement with the Bucchianeris.

Evidence at trial indicated that Gannett-Flemming and Renda may have disturbed the pipes in the area where the leak occurred during the course of their construction. Consequently, appellant submitted points for charge on theories of liability with respect to these appellees.

The trial judge made only one reference to them in his recitation of the facts:

Apparently if Vignoli is to believed, the contractors, Renda and Gannett-Flemming Cordry and Carpenter had been working around there for six to eight weeks. I assume that the argument against them is that they broke [the pipe] when they were working there ...

Other than that, the lower court concentrated on the gas company and homeowner as it explored the various theories of liability relative to each.

A jury charge must be reviewed in its entirety in order to determine whether error was committed. Antonace v. Ferri Contracting Co., 320 Pa.Super. 519, 467 A.2d 833 (1983). An appellate court must analyze the charge against the background of evidence adduced at trial to consider whether the issues have been clearly defined and to note the general effect of the charge. Berry v. Friday, 324 Pa.Super. 499, 503, 472 A.2d 191, 193 (1984), quoting Smith v. Clark, 411 Pa. 142, 147, 190 A.2d 441 (1963). The trial judge is ultimately responsible for defining all pertinent questions of law, and all issues which are relevant to pleadings and proof may become the subject of jury instructions. Berry v. Friday, supra.

Having reviewed the charge in full, we agree with appellant that the court failed to explore the theories of liability pertaining to Gannett-Flemming and Renda. His reference to them as recited above and a later reference when explaining the verdict slip to the jury were insufficient to clarify to the jury that these parties were serious defendants whose liability was to be weighed in reaching a fair and just verdict. This court does not mean to imply that the contractors should have been found liable. Rather, a fair reading of the charge leads us to believe that the trial judge failed to fully explain the issues involving these parties. Although the trial judge is not bound to employ the specific wording in appellant’s points for charge, he must instruct the jury, in any language he chooses, on all pertinent and relevant issues.

Appellant’s argument that the trial court erred in refusing to submit provisions of the Gannett-Flemming contract to the jury must fail. We agree with appellees that no appropriate foundation was laid for the admission of that documentary evidence. Hence, no error was committed by the lower court in that regard.

Appellant alleges further error with respect to the charge wherein the trial judge cited various examples from prior caselaw in an attempt to clarify some issues. We find no error here. The examples chosen were uncomplicated and relevant to the jury’s understanding of the issues. Assuming arguendo that the examples cited were irrelevant, we have held that “the court does not commit reversible error in giving irrelevant instructions of minor importance which are unsupported by the evidence.” Junk v. East End Fire Dept., 262 Pa.Super. 473, 489, 396 A.2d 1269, 1277 (1978).

We find appellant’s issue concerning appellees’ rebuttal witness to be devoid of merit.

Appellant’s fifth allegation of error is that the verdicts were excessive. In light of our decision to remand for a new trial, this issue is rendered moot.

Finally, appellant avers that the trial court erred in dismissing the actions as to Bernard Bucchianeri, a relative of appellees who testified that, on the day of the explosion, he smelled gas in Arturo’s home, but failed to call the gas company.

On a motion for a directed verdict, the trial court must accept as true all facts and inferences tending to support the contentions of the party against whom the motion has been made, rejecting all testimony and references to the contrary. Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 339, 455 A.2d 637, 639 (1982). In reviewing the grant or denial of a motion for a directed verdict, we must determine if “an abuse of discretion or error of law which controlled the outcome of the case occurred.” McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982). If so, only then will we reverse. Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 471 A.2d 891 (1984).

Herein, there was no basis to sustain allegations of negligence against Bernard Bucchianeri. His mere presence at the scene of the explosion did not impose a legal duty on him to take appropriate steps to avoid the disaster. Without a legal duty, he could not be found responsible for the subsequent damages and injuries sustained by his relatives. An abuse of discretion or error of law was clearly absent in this ruling. Hence, we will not disturb it on appeal.

Judgment as to all parties except Bernard Bucchianeri vacated, and case remanded for a new trial and proceedings not inconsistent with the dictates of this opinion. Jurisdiction is relinquished.

      . Arturo Bucchianeri had died from unrelated causes during the pendency of this case.


text:
    491 A.2d 841
    Helen F. PASTIERIK, Executrix of the Estate of Paul P. Pastierik, Deceased, Appellant, v. DUQUESNE LIGHT CO. Helen F. PASTIERIK, Executrix of the Estate of Paul P. Pastierik, Deceased, Appellant, v. JOHNS-MANVILLE CORPORATION, a Corporation, Keene Corporation, Successor in interest to Baldwin-Ehret-Hill, Inc., a Corporation, Owens Corning Fiberglas, a Corporation, Owens-Illinois, Inc., a Corporation; the Celotex Corporation, Successor in interest to Philip Carey Manufacturing Corporation, Philip Manufacturing Company, Briggs Manufacturing Company and Panacon Corporation, a Corporation; Eagle Picher Industries, Inc., a Corporation, Raybestos Manhattan, Inc., a Corporation; Armstrong Cork Company, a Corporation, Forty-Eight Insulations, a Corporation, American Industrial Contracting, Inc., a Corporation; Industrial Furnace Supplies, Inc., a Corporation; George V. Hamilton, Inc., a Corporation; Acands, Inc., a Corporation; and Atlas Asbestos Company, a Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1984.
    Filed March 8, 1985.
    Reargument Denied May 17, 1985.

      Edwin H. Beachler, Pittsburgh, for appellant.
    John A. Lee, Pittsburgh, for appellee (at 153).

      Patrick R. Riley, Pittsburgh, for appellees (at 211).
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   PER CURIAM:

This consolidated appeal is taken from the grant of judgments on the pleadings in favor of appellees. Because we conclude that the court erred in dismissing appellant’s wrongful death and survival actions as time-barred, we vacate the judgments, and remand with instructions to reinstate the complaints.

Appellant’s husband died on April 4, 1978. Appellant filed a complaint on August 11, 1981, alleging decedent’s death from carcinoma of the lung, caused by exposure to asbestos in the course of his employment by appellee Duquesne Light. Appellant filed a second suit on October 20, 1981, alleging that decedent died of carcinoma caused by his exposure to asbestos products manufactured, sold, and supplied by the appellee-asbestos manufacturers. In both actions, appellant alleged that she did not know and reasonably could not have known that decedent’s death was caused by his exposure to asbestos products until March 1981, and that the actions were thus timely filed.

The court concluded that the two year statute of limitations began to run from the date of decedent’s death. Appellant argued for the application of the “discovery rule” to toll the statute of limitations, based on her inability to discover the cause of decedent’s death. The court rejected this argument, holding that the actions were barred, because filed more than two years after decedent’s death.

Our Supreme Court has recognized the equitable application of the discovery rule to toll the running of the statute of limitations in cases in which the plaintiff is unable, despite the exercise of due diligence, to know of an injury or its cause. See Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983). In “creeping disease” cases, involving diseases contracted from exposure to hazardous substances, the statute of limitations begins to run when the plaintiff knows or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct. Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135, 471 A.2d 493, 500 (1984) (en banc).

The equitable foundation of the discovery rule generally is no less sound in the context of wrongful death and survival actions. See Anthony v. Koppers, 284 Pa.Super. 81, 425 A.2d 428 (1980), reversed 496 Pa. 119, 436 A.2d 181 (1981) (prior statute of limitations). It seems clear that to permit the discovery rule if the allegedly tortious conduct results in personal injury, but to deny its application if the allegedly tortious conduct causes death, would be unjust.

It is thus apparent that the court erred in granting judgment on the pleadings and dismissing appellant’s complaints. Because the discovery rule is properly applicable to. these wrongful death and survival actions, the question of the timeliness of the action must be resolved by determining when appellant knew or reasonably should have known that decedent was injured and that his injury had been caused by another party’s conduct.

Accordingly, we vacate the judgments, and remand with instructions to reinstate the complaints.

Jurisdiction relinquished.

      . See Act of April 26, 1855, § 2, P.L. 309, 12 P.S. § 1603, repealed by Judiciary Act Repealer Act, Act of April 28, 1978, § 2(a)[310], P.L. 202, effective June 27, 1978 (wrongful death actions), and Act of June 24, 1895, § 2, P.L. 236, 12 P.S. § 34, repealed by Judiciary Act Repealer Act, § 2(a)[807] (survival actions). The suits involved in the present appeal were filed pursuant to 42 Pa.C.S.A. § 8301 (wrongful death actions) and 42 Pa.C.S.A. § 8302 (survival actions). The applicable statute of limitations is found at 42 Pa.C.S.A. § 5524(2). See 42 Pa.C.S.A. § 5502 for the method of computing periods of limitation under Chapter 55.

      . Recently, this Court approved the use of the discovery rule in a suit in which plaintiffs decedent had filed the complaint himself, and his wife and executrix was substituted as plaintiff upon his death. See Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984). The court affirmed the trial court’s grant of summary judgment, based on its finding that decedent filed suit two and one-half years after he clearly had knowledge of his disease and its cause, and thus six months after the two year statute of limitations period had run.


author: WIEAND, Judge:

text:
    491 A.2d 843
    COMMONWEALTH of Pennsylvania, Appellee, v. Eric Ralph FRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1984.
    Filed March 22, 1985.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and MONTGOMERY, JJ.
   WIEAND, Judge:

Does evidence that an eighteen year old defendant placed his arms around a ten year old child and lifted the child from the ground support a conviction for simple assault in violation of 18 Pa.C.S. § 2701(a)(3)? We hold that it does not. Therefore, we reverse the judgment of sentence and discharge the defendant.

On March 11, 1983, a ten year old female child was walking to school with a younger brother and two friends. When she reached the school grounds, Eric Fry, age eighteen, approached her from behind, grabbed her by putting his arms around her and lifted her off the ground. When she started to kick and scream, Fry said, “shut up, you’re coming with me.” The child had not been acquainted previously with Fry. Two children who were serving as safety patrol members saw what was happening and ran toward Fry; whereupon, he put the child down and walked away. At trial, the child surmised that Fry intended to pull her toward a flight of stairs leading to a locker room, but she conceded that she wasn’t certain about that.

Fry was tried by jury and was found guilty of false imprisonment in violation of 18 Pa.C.S. § 2903 and of simple assault in violation of 18 Pa.C.S. § 2701(a)(3). The trial court found the evidence insufficient to sustain the conviction for false imprisonment and arrested judgment thereon. With respect to the conviction for simple assault, however, the trial court denied post-trial motions and sentenced Fry to probation for twenty-three months. Fry appealed.

Fry was charged and convicted of violating 18 Pa. C.S. § 2701(a)(3) which provides: “A person is guilty of an assault if he: ... attempts by physical menace to put another in fear of imminent serious bodily injury.” To prove a violation of this section, the Commonwealth was required to produce evidence sufficient to enable twelve reasonably intelligent persons to find beyond a reasonable doubt that appellant acted with a specific intent to put the child in fear of imminent serious bodily injury. See: In the Interest of J.L., 327 Pa.Super. 175, 475 A.2d 156 (1984). Serious bodily injury is “[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S. § 2301.

When we examine the evidence to determine whether the evidence was sufficient to support such a finding, we view it in the light most favorable to the Commonwealth. Commonwealth v. Carter, 329 Pa.Super. 490, 497, 478 A.2d 1286, 1288 (1984); Commonwealth v. Nelson, 320 Pa.Super. 488, 492, 467 A.2d 638, 640 (1983). Then we determine whether that evidence, together with all reasonable inferences to be drawn therefrom, was sufficient in law to permit the jury to find beyond a reasonable doubt that a crime was committed and that appellant committed it. See: In the Interest of J.L., supra. See generally: Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978). The crime with which appellant was charged required a specific intent. Proof of a person’s state of mind may be found from his words or conduct or from the surrounding circumstances. Intent may be shown by circumstantial evidence. Commonwealth v. Russell, 313 Pa. Super. 534, 543, 460 A.2d 316, 321 (1983). A fact finder may find that a person intends the natural and probable consequences of his actions. Commonwealth v. Thomas, 465 Pa. 442, 447, 350 A.2d 847, 849 (1976).

In the instant case, however, the only evidence of physical menace was that Fry put his arms around the child and picked her up. He did not strike or attempt to subdue her by physical means. He did not threaten to inflict bodily injury upon her. There was no evidence that serious bodily injury was imminent or that appellant intended to put the child in fear thereof. Cf. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978) (blow to nose not serious bodily injury); In the Interest of J.L., supra (pushing two year old child away with elbow insufficient to show intent to cause bodily injury); Commonwealth v. Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979) (physically wrestling wallet from victim insufficient to show intent to put victim in fear of serious bodily injury).

The evidence did show that appellant told the child to “shut up” and that he was taking her with him. The child speculated that perhaps appellant intended to take her toward the steps leading to the locker room. Certainly one can infer from this that a young child would be alarmed and frightened by appellant’s conduct. However, that is not the conduct which was made criminal by 18 Pa.C.S. § 2701(a)(3). The statute required a specific intent on the part of appellant to put the child in fear of imminent serious bodily injury. This the Commonwealth failed to prove. There was no evidence from which it could be inferred that appellant, by his conduct, intended to put the child in fear of imminent, serious bodily injury. The intent with which appellant acted has not been shown by the evidence, and it would be inappropriate for us to indulge in speculation with respect thereto. The Commonwealth charged him with a crime requiring a specific intent, i.e., with an intent to put the child in fear of imminent serious bodily injury; but its evidence failed to establish that appellant had acted with such an intent. The crime, therefore, was not proved; and the conviction cannot stand. The judgment of sentence is reversed, and appellant is discharged.

MONTGOMERY, J., dissents.

      . In addition to Fry’s contention that the evidence was insufficient to show an assault, he argues that the lower court erred by refusing to suppress evidence of a photographic array displayed by the principal of the school, with assistance from local police. Initially, two children viewed the array together and selected photographs of Fry and another boy as the possible perpetrator. Two other children viewed the array together and unhesitatingly selected Fry’s photograph as a picture of the perpetrator. Because we deem the evidence insufficient to sustain appellant’s conviction for assault, we do not decide whether the photographic display was police action or the act of a private citizen and whether it was unduly suggestive.

      . Compare: Commonwealth v. Marshall, 249 Pa.Super. 333, 378 A.2d 322 (1977). There, the defendant, while wearing a nylon stocking over his head, had grabbed a fourteen year old girl from behind and had dragged her yelling and struggling into an alley and toward a parked car. He released the child and removed his mask when police approached. This court, without discussion, found the evidence sufficient to sustain a conviction for assault. The opinion does not disclose under which subsection of 18 Pa.C.S. § 2701 the defendant had been charged and convicted.


author: TAMILIA, Judge:

text:
    491 A.2d 845
    COMMONWEALTH of Pennsylvania v. John Joseph LUPATSKY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1984.
    Filed March 29, 1985.

      Peter J. Hill, Assistant Public Defender, Allentown, for appellant.
    Elwood R. Harding, Jr., District Attorney, Bloomsburg, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence imposed pursuant to appellant’s plea of guilty to three counts of delivering marijuana. Appellant claims that his sentence, three concurrent terms of one and one half to five years imprisonment, was excessive and an abuse of judicial discretion. Specifically, it is alleged that the court erred in considering as an aggravating factor prior summary convictions, which, properly, were not factored into the prior record score, in order to escalate appellant’s sentence into the aggravated minimum range provided by the Sentencing Guidelines, i.e., that an impermissible procedure was employed resulting in an excessive sentence. If this consideration alone was the basis for increasing the sentence, we would agree. However, the trial court, in sentencing, considered the totality .of the defendant’s background and particularly emphasized that despite the fact he would agree to concurring sentences on the three offenses, he would not ignore the three separate sales resulting in three separate convictions.

Although appellant’s sentence is less than the maximum 7V2 to 15 years allowable under 35 Pa.C.S.A. § 780-113(f)(2), we may still set it aside if we find that inadequate reasons have been given for its imposition, Commonwealth v. Gaskin, 325 Pa.Super. 349, 472 A.2d 1154 (1984), or, if from a review of the record it appears that the sentencing court relied partially or wholly on an impermissible factor in fashioning a penalty. Commonwealth v. Duden, 326 Pa. Super. 73, 473 A.2d 614 (1984).

In this instance, the information relied on need not have been eliminated from consideration. It is well settled that the court has broad discretion in sentencing which we will not disturb absent abuse. Commonwealth v. Holler, 326 Pa.Super. 304, 473 A.2d 1103 (1984). It is further clear that the court is bound to examine a range of factors concerning the person and history of the defendant, and the particular circumstances of the crime in fashioning its sentence. Commonwealth v. Weldon, 320 Pa.Super. 102, 466 A.2d 1082 (1983). Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized. See e.g., Common wealth v. Bryant, 312 Pa.Super. 379, 458 A.2d 1010 (1983) (prior arrests not resulting in convictions).

We know of no case, and appellee has cited none, which allows prior convictions alone, too minor to be incorporated into a prior record score, to be used as aggravating circumstances in enhancing a sentence, especially where the prior convictions bear no relation to the crime for which penalty is being determined. The sentencing code would, in fact, by analogy, seem to indicate otherwise.

The death penalty statute, 42 Pa.C.S.A. § 9711(d), the only clear exposition of aggravating circumstances, limits these to either of two factual categories: actions connected in an immediate manner to commission of the particular crime, or prior convictions evidencing the propensity to commit such a crime.

42 Pa.C.S.A. § 9721, Guideline 303.7(f) offers another analogue to the proper utilization of prior convictions. Past Convictions.

When the grading of the current offense is dependent upon past convictions, those convictions shall not be used in computing the prior record score. For example: retail theft, some violations of The Controlled Substance Drug Device and Cosmetic Act (35 Pa.C.S. § 780-101 — 780-144) and some motor vehicle offenses take a higher statutory classification when the defendant has been previously convicted of the same offense.

This section makes unambiguously clear that what is usable to once enhance a sentence may not be employed to duplicative effect. We find that the reverse is true as well. 42 Pa.C.S.A. § 9721, Guideline 303.7(e)

Excluded offenses. Summary offenses, violation of local ordinances, dispositions under Pa.R.Crim.P. 175-185 (relating to accelerated rehabilitative disposition), 35 Pa.C.S. § 780- (relating to probation without verdict) or 35 Pa. C.S. § 780-118 (relating to disposition in lieu of trial or criminal punishment) shall not be used in computing the prior record score, (emphasis added)

The prior convictions applied by the court to intensify appellant’s sentence fall under the rubric of excluded offenses in computing a prior record score. What appellant loses sight of is that while they may not be used to move from one step to another in the prior record score range of zero to six, they may be considered in fixing the penalty within the range of “mitigated” to “aggravated” at that step. We find no argument with consideration of such offenses for purposes of sentencing when, in addition, the trial judge considered the crucial fact that the defendant was sentenced on three independent charges, albeit to run concurrently. In this respect, the court satisfied the requirement of the Sentencing Guidelines, 42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.3(2) “it shall state the reason (when aggravating or mitigating reasons warrant) on the record.” Commonwealth v. Bedleyoung, 319 Pa.Super. 323, 466 A.2d 180 (1983). Within its discretion, the court could have refused the bargain and required trial or a wider range of sentencing.

Here, the defendant received the benefit of a bargain to have the three separate sentences run concurrently and we see no abuse of discretion by the trial judge in considering the obvious, that there were three offenses and imposing a higher sentence than had there only been one.

Accordingly, judgment of sentence is affirmed.


author: HOFFMAN, Judge:

text:
    491 A.2d 848
    COMMONWEALTH of Pennsylvania v. Daniel MEHOLIC, Appellant.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed March 29, 1985.

      Charles R. Witaconis, Assistant Public Defender, Scranton, for appellant.
    Amil M. Minora, Assistant District Attorney, Scranton, for Commonwealth, appellee.
    Before CIRILLO, HOFFMAN, and ROSENWALD, JJ.

       Judge Edward Rosenwald of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for arson and conspiracy. For the reasons stated herein, we vacate the conspiracy conviction but otherwise affirm.

On June 7, 1978, appellant’s cottage on Chapman Lake was damaged by fire. Appellant collected approximately $21,000 from his insurance company for the fire damage. Evidence introduced at trial showed that appellant and some friends decided to set fire to the cottage in order to collect the insurance. While appellant and several men waited on the porch, one of the men set a fire under the kitchen stairs. Appellant was not charged until three years later when one of his companions gave a statement to the police.

Following the jury trial which ended September 2, 1981, appellant was found guilty of arson and conspiracy to commit arson. Post-trial motions were timely filed and denied. On November 11, 1983, appellant was sentenced to a term of six months-to-two years imprisonment on the arson charge; the conspiracy charge was deemed to have merged. This appeal followed.

Appellant contends first that the trial court should have quashed the conspiracy charge because the statute of limitations had expired. Under 42 Pa.C.S.A. § 5552(a), in effect at the time appellant was charged, conspiracy carries a two-year statute of limitations. See Commonwealth v. Askin, 502 Pa. 575, 467 A.2d 820, 821 (1983). The lower court erroneously relied upon this Court’s decision in Commonwealth v. Askin, 306 Pa.Superior Ct. 529, 452 A.2d 851 (1982), which the Supreme Court reversed on appeal. Here, because appellant was not charged with the conspiracy until March 10, 1981, the conspiracy conviction should be vacated.

Appellant contends next that the trial court erred in admitting a co-conspirator’s statement where said co-conspirator did not testify, thereby denying appellant the right to confront witnesses against him. He specifically alleges that the court, in allowing George Cornell to testify regarding conversations between Cornell and Richard Young, erroneously admitted the statements made by Young during these conversations. We find no merit in this allegation. In Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975), our Supreme Court held that conversations between co-conspirators during the conspiracy are an exception to the hearsay rule and are therefore admissible even though the co-conspirator whose declaration is testified to is not on trial and a conspiracy is not charged. Id., 462 Pa. at 58-59, 337 A.2d at 880-881. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the United States Supreme Court stated the following:

The hearsay rule does not prevent a witness from testifying as to what he has heard, it is rather a restriction on the proof of fact through extrajudicial statements. From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only as to what he has seen but also as to what he has heard.

Id. at 88, 91 S.Ct. at 219. Here, Cornell was testifying on the stand under oath and was subject to cross-examination. The lower court apparently found his testimony reliable. Additionally, like in Dutton, there were sufficient indicia of reliability in the instant case: Young’s statements implicating appellant were spontaneous, against his penal interest to make them, and corroborated by other testimony presented by the Commonwealth. See N.7 August 31, 1981 at 73-80. Therefore, we find no reversible error in the admission of Young’s statements during the conversations.

Appellant also contends that the evidence introduced at trial was insufficient to sustain his conviction for arson. In order to convict a person of committing arson, the State must show beyond a reasonable doubt: (1) a fire, (2) of incendiary origin, and (3) defendant was the guilty party. Commonwealth v. Dolan, 287 Pa.Superior Ct. 202, 429 A.2d 1171 (1981). Here, appellant questions the proof that the fire was incendiary and that he was the guilty party. We note that a fire investigator testified that the fire was incendiary, and that sufficient evidence was adduced to show that appellant aided and abetted the man who actually set the fire. See Commonwealth v. Everett, 297 Pa.Superior Ct. 320, 443 A.2d 1142 (1982) (a person aiding and abetting the perpetrator of a crime is equally criminally liable). See also 18 Pa.C.S.A. § 306. Therefore, viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Taraschi, 327 Pa. Superior Ct. 179, 184-186, 475 A.2d 744, 747 (1984), we find that the evidence introduced at trial was sufficient to support appellant’s arson conviction.

Appellant next contends that the trial court erred in allowing a witness to testify when that witness had been charged with perjury in another county. 42 Pa.C.S.A. § 5912 states that a witness who has been convicted of perjury is incompetent to testify for any purpose. In Commonwealth v. Myers, 485 Pa. 519, 403 A.2d 85 (1979), our Supreme Court found that a witness who had been tried and found guilty but not yet sentenced for perjury was incompetent to testify. There, the prosecution had delayed the sentencing in order that the witness might be competent to testify. Here, however, the witness in question has not yet been tried or convicted, and there is no evidence of prosecutorial misconduct. Thus, we find no error.

Appellant also contends that the lower court erred in charging the jury that they could find appellant guilty of arson if they found that he had aided and abetted the person setting the fire, when appellant was never indicted for aiding and abetting. We disagree. In Commonwealth v. Brown, 302 Pa.Superior Ct. 391, 448 A.2d 1097 (1982), this Court found that the Commonwealth could use an accomplice liability theory at trial without indicting the defendant as an accomplice if the Commonwealth disclosed that it was going to proceed on that theory before trial, and that theory was in conformity with the bill of information. Appellant does not allege that he was surprised by the accomplice theory, and, in fact, the record contains several references to the accomplice theory in pre-trial proceedings.

Appellant contends finally that he was denied effective assistance of trial counsel. In order to find counsel ineffective, we must first find that the issue underlying the charge of ineffectiveness possesses arguable merit; counsel cannot be found ineffective for failing to assert a meritless claim. Commonwealth v. Evans, 489 Pa. 85, 91 and n. 6, 413 A.2d 1025, 1028 and n. 6 (1980). See also Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Appellant has the burden of proving counsel’s ineffectiveness in a criminal case. Commonwealth v. Gay, 489 Pa. 17, 20, 413 A.2d 675, 677 (1980). Here, appellant alleges that trial counsel was ineffective in failing to (1) raise in post-trial motions prosecutorial misconduct during summation, namely, the prosecutor’s comment that he wanted to “make an example of defendant to all arsonists in Lackawanna County”; (2) cross-examine George Cornell as to the underlying basis for the numerous criminal charges filed against Cornell in various counties and as to various inconsistencies between Cornell’s testimony at trial and at the preliminary hearing; (3) object to the admission of Cornell’s statement for establishing the alleged conspiracy; and (4) refute adequately the prosecutor’s theory that appellant set the fire in order to collect the insurance money because of appellant’s financial problems. With regard to the first allegation, we do not find that the prosecutorial remark rises to the level of reversible error.

But even where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required____ The language must be such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” ... The effect of such remarks depends upon the atmosphere of the trial, ..., and the proper action to be taken is within the discretion of the trial court.

Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975). With regard to the second and fourth allegations, we find that counsel’s conduct falls within the realm of trial strategy and does not constitute an abuse of discretion. “Trial counsel inherently have broad discretion to determine the course of defense tactics employed.” Commonwealth v. Mizell, 493 Pa. 161, 164, 425 A.2d 424, 426 (1981). We need not decide the third allegation because we have vacated appellant’s conspiracy conviction. Therefore, having found these claims meritless, appellant was not prejudiced and counsel cannot be deemed ineffective. Commonwealth v. Garvin, 335 Pa.Superior Ct. 560, 485 A.2d 36 (1984) (en banc).

Accordingly, we affirm the judgment of sentence for arson but vacate the conspiracy conviction.

Affirmed in part; vacated in part.