author: WIEAND, Judge:

text:
    486 A.2d 1009
    Edward B. WERNER and Scarlett O. Werner, Husband and Wife and Gladys Werner, Executrix of the Estate of Stanley G. Werner, Appellants, v. QUALITY SERVICE OIL COMPANY, INC. and Edward B. Werner and Scarlett O. Werner, Husband and Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued March 15, 1984.
    Dec. 28, 1984.
    Reargument Denied Jan. 30, 1985.
    Petition for Allowance of Appeal Denied June 19, 1985.

      Armin Feldman, Palmerton, for appellants.
    April Cordts, Allentown, for appellees.
    Before CAVANAUGH, WIEAND and CHULLO, JJ.
   WIEAND, Judge:

Edward B. Werner and his father, Stanley G. Werner, owned a mobile home as tenants in common. The mobile home was occupied by Edward Werner and Scarlett Wer-ner, husband and wife, who owned the contents of the home as tenants by the entireties. On December 29, 1978, the mobile home and its contents were destroyed by fire. On the prior day, December 28, 1978, a Coleman furnace which heated the mobile home had been serviced by Quality Service Oil Co., Inc. (Quality). In an action by Edward and Scarlett Werner and by the executrix of Stanley Werner’s estate, in which it was alleged that Quality had negligently serviced the heater, a jury found causal negligence and apportioned it as follows: Quality — 30%; Edward Werner— 45%; Scarlett Werner — 25%. The jury also found, apparently because of a misunderstanding regarding its duties, that no damages had been sustained. Post-verdict motions were dismissed, and judgment was entered on the verdict. This appeal followed.

Although appellants argue that the jury’s findings were contrary to the weight of the evidence, they have failed to provide us with a transcript of all the evidence. Only appellant’s testimony has been transcribed; the testimony of Quality’s witnesses was not transcribed and is not available for review.

From the record available to us, it appears that on the day preceding the fire, the furnace did not function properly. When Edward Werner discovered a puddle of oil at the base of the burner, he called Quality, which promptly sent a repairman. While the repairman was working, Edward observed that fuel oil appeared to be leaking in the interior of the furnace. After the repairman had departed, the furnace appeared to function properly. For sleeping purposes that night, the thermostat was turned down to 60° F. Although Edward heard the furnace running during the night, the mobile home was cold when he arose about 5:00 a.m. Not only was the furnace not operating properly, but oil had again accumulated at the base of the burner. Therefore, Edward turned off the thermostat, cleaned up the oil, and again called Quality. Scarlett, who worked nights, returned home about 7:30 a.m. Edward instructed her not to turn on the furnace until Quality’s repairman arrived. Scarlett told Edward that it was too cold in the trailer and turned on the furnace. She left shortly thereafter to go to the store. A short time later, Edward observed smoke emanating from the air vents and again turned off the furnace. Then he saw flames coming from the base of the furnace. As he attempted to extinguish the flames, he discovered fire under the floor of the mobile home. The ensuing fire destroyed the home and all its contents. The trial court found that the jury’s findings were not contrary to the weight of the evidence. We find no reason to disagree.

It is also contended that the trial court erred in five instances in which it declined to read to the jury points for charge which appellants had submitted. The refusal to give a proper instruction requested by a party is ground for a new trial only if the substance thereof has not otherwise been covered by the trial court’s general charge. Butler v. DeLuca, 329 Pa.Super. 383, 390, 478 A.2d 840, 844 (1984). In this case the duty of care owed by Quality’s employees was adequately covered by the court’s instructions to the jury. Therefore, the court’s failure to read the points submitted by appellants regarding the general degree of care owed by Quality to its customers was not error.

Defense counsel’s question to Gladys Werner regarding whether she believed that Scarlett Werner had been unaware of an oil leak was improper. However, the question was answered in such a manner that appellants were benefitted, not harmed, by the answer. The question alone, therefore, is not a basis for awarding a new trial. See: Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965).

The Comparative Negligence Law, 42 Pa.C.S. § 7102(a) provides:

In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

A tenancy by the entireties is an estate “per tout et non per my.” Maxwell v. Saylor, 359 Pa. 94, 96, 58 A.2d 355, 356 (1948). “The incidents of such an estate are unity of interest, title, time and possession____” Berhalter v. Berhalter, 315 Pa. 225, 227, 173 A. 172, 173 (1934). Each spouse has title to the whole of the property and not to any share or divisible part thereof. Zipperlein Estate, 367 Pa. 622, 624, 80 A.2d 817, 818 (1951); Gallagher Estate, 352 Pa. 476, 478, 43 A.2d 132, 133 (1945). Where, as here, husband and wife are seeking to recover damages for destruction of property owned by the entireties, the claimant is, in effect, the tenancy by the entireties. Therefore, the negligent acts of the spouses must be combined for purposes of applying the Comparative Negligence Law. Here, the husband’s causative negligence was found to be 45%, and the wife’s causative negligence was 25%. In view of these findings there can be no recovery for damage or destruction of property owned by husband and wife as tenants by the entireties against a third person whose causative negligence was only 30%. Cf. Neiman v. Watkins, 204 Pa.Super. 13, 201 A.2d 238 (1964). The judgment for appellee on the claim for destroyed contents of the mobile home, therefore, was proper.

A tenancy in common rests upon different principles. “A tenancy in common is an estate in which there is a unity of possession but separate and distinct titles____” 14 P.L.E. Estates in Property § 41 (1959). Thus, a tenant in common may, without the consent of his cotenant, sell, convey or dispose of his undivided interest in the property. Similarly, he can maintain an action at law to recover monetary damages for injury done to his interest in the property.

The mobile home was owned by Edward Werner and Stanley Werner as tenants in common. When the trailer was destroyed by fire, each had a legally cognizable claim for destruction of his undivided one-half interest therein. This was not altered merely because Edward and Gladys, the executrix and widow of the co-tenant, filed a joint action. What then is the effect of the Comparative Negligence Law in view of the jury’s findings regarding causative negligence?

Stanley, of course, was not negligent. Therefore, his estate can recover in full the damages caused to his interest from those named defendants “against whom recovery [was] sought” and whose negligence was causally responsible for the destruction of the trailer. These defendants were Quality, and also Edward and Scarlett Werner. Their respective liabilities must be apportioned in accordance with the jury’s findings.

A similar result obtains as to the interest of Edward Werner. In view of the fact that his causal negligence (45%) did not exceed the causal negligence of the defendants against whom recovery was sought, i.e., Quality (30%) and Scarlett Werner (25%), his own negligence does not bar recovery. See: Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984). The damages sustained by the destruction of his undivided interest in the trailer, however, must be diminished in proportion to the amount of his own causal negligence.

The jury’s failure to award damages for the loss of the mobile home was erroneous and clearly contrary to the evidence. The mobile home had an undetermined value prior to the fire, and the owners thereof were entitled to be compensated therefor in accordance with the jury’s findings regarding causal negligence. Because of the jury’s omission, it is necessary that the claim of Edward Werner and Gladys Werner, Executrix, be remanded for a new trial to determine the damages sustained by virtue of the destruction of the mobile home.

Prior to trial, Edward Werner had compiled from memory a list of items destroyed by the fire. The list included the price paid for the mobile home in 1968 and the cost of later improvements made thereto. This information was submitted to and was the basis for an appraisal made by a professional appraiser, Curtis Houser. Houser testified at trial and expressed an opinion that the mobile home had a value of $10,300.00 on the day of the fire. The owner, Edward Werner, was not asked at trial and did not testify concerning the value of the mobile home. Nevertheless, counsel for Quality was permitted, over objection, to elicit during cross-examination of Edward Werner that he had insured the mobile home for only $3,000.00. Before resting his case, plaintiffs’ counsel offered into evidence Houser’s written appraisal, to which there had been attached the list prepared by Edward Werner. It was received without objection.

As a general rule, the amount for which property is insured does not afford a test of value having sufficient probative effect to be admissible. Pittsburgh Forge & Iron Co. v. Dravo Contracting Co., 272 Pa. 118, 124, 116 A. 147, 150 (1922); 31A C.J.S., Evidence § 183(1) (1964). Compare: Glider v. Commonwealth of Pennsylvania, Department of Highways, 435 Pa. 140, 255 A.2d 542 (1969). Where a policy of insurance contains an assigned value of property, however, some courts have held that the assigned value may be used for impeachment purposes when an owner attributes at trial a value widely at variance with the value he placed on the property under the insurance policy. See: Kelley v. Sonny Boy Appaloosas, Ltd., 491 P.2d 67, 71 (Colo.Ct.App.1971). See also: Blount v. McCurdy, 267 Ark. 989, 593 S.W.2d 468, 470 (Ark.Ct.App.1980). Contemporary decisions have gone further and have held, in the discretion of the trial court, that where the amount of insurance placed on property suggests an estimate of value by the owner which is inconsistent with that testified to by him, the amount of insurance may be used for impeachment purposes. See: 31A C.J.S. Evidence § 182(1) (1964). See also: Maxwell v. Iowa State Highway Commission, 223 Iowa 159, 166, 271 N.W. 883, 887 (1937), 118 A.L.R. 862, 868-869 (1939); Holmes v. Rivers, 145 Iowa 702, 707, 124 N.W. 801, 803 (1910); Commonwealth Department of Highways v. Finley, 371 S.W.2d 854, 855 n. 1 (Ky.1963); McDowell v. Schuette, 610 S.W.2d 29, 41 (Mo.Ct.App.1980).

Here, however, Edward Werner had not expressed an opinion regarding the value of his mobile home. He had simply provided an appraiser with original prices paid for the home and improvements, and from this the appraiser had formulated an opinion as to the value of the mobile home at the time of the fire. Thus, there was no testimony of value by the owner that was subject to impeachment by showing the amount for which the mobile home had been insured. Moreover, as we have observed, the amount for which the mobile home had been insured was not sufficiently probative of value to be admissible. The receipt of this evidence, therefore, was error. For this additional reason, a new trial is necessary to determine the value of the mobile home at the time when it was destroyed by fire.

The judgment in favor of the defendant in the claim for damages to the contents of the mobile home is affirmed. The judgment disallowing recovery on the claim for damages to the mobile home is reversed, and that claim is remanded for a new trial for the sole purpose of determining the value of the mobile home at the time of its destruction.

      . The list also included the contents of the mobile home. We are not concerned with that property, however, because there can be no recovery for the contents in view of the jury’s findings regarding negligence.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    486 A.2d 1330
    Mary Margaret HUFFMAN, Appellant, v. AETNA LIFE AND CASUALTY COMPANY, a corporation.
    Superior Court of Pennsylvania.
    Argued April 11, 1984.
    Filed Nov. 23, 1984.
    Reargument Denied Jan. 24, 1985.
    Petition for Allowance of Appeal Denied July 10, 1985.

      Samuel J. Pasquarelli, Pittsburgh, for appellant.
    Alan Shapiro, Pittsburgh, for appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   ROWLEY, Judge:

This is an appeal from an Order which granted the appellee’s motion for summary judgment. Appellant’s husband, the late Arthur Huffman, was employed by the Western Pennsylvania Water Company, which provided its employees with a group hospitalization insurance policy issued by the appellee, the Aetna Life and Casualty Company. For various periods of time during 1977 and 1978, appellant’s husband was confined at the Washington Hospital Extended Care. Facility. The expenses incurred during the periods of confinement were slightly over $8,000. After appellant had made demand, appellee refused to pay for these expenses, claiming that the Washington Hospital Extended Care Facility was not a “hospital” within the meaning of the insured’s policy. Appellant then instigated suit against the appellee, after which the appellee filed a petition to transfer the case to the arbitration docket. This petition was granted, and the arbitrators decided in favor of the appellant in the amount of slightly over $4,000. The appel-lee appealed the arbitrators’ decision. A deposition was taken of Mary McHugh, the administrator of the Washington Hospital Extended Care Facility. The appellee then filed a motion for summary judgment. The trial court, agreeing with the appellee that the Washington Hospital Extended Care Facility could not be regarded as a “hospital,” granted the summary judgment motion. Because we see the meaning of “hospital” under these circumstances as ambiguous and because the trial court did not sufficiently consider the expectations of Arthur Huffman as a policyholder, we reverse.

At the outset of this opinion, we emphasize the standards which are to be followed in determining whether a summary judgment motion should be granted. First, summary disposition of a case is permitted only in the “clearest of cases.” Hankin v. Mintz, 276 Pa.Super. 538, 540, 419 A.2d 588, 589 (1980). Second, for a summary judgment to be upheld, there can be no genuine issues of fact and the moving party must be entitled to judgment as a matter of law. Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983). The case at bar was not among the “clearest of cases” ripe for summary judgment. Nor was the appellee entitled to judgment as a matter of law.

The task at hand is to determine whether the Washington Hospital Extended Care Facility can be regarded as a “hospital” as defined in the insurance policy. We begin this task by examining the policy to ascertain the intentions of the parties involved in the insurance agreement. Standard Venetian Blind Co. v. American Empire Insurance, 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). In its policy, the appellee used seven elements to define “hospital.” Reproduced Record at 88a. Individual analysis of these elements sheds considerable light on the intentions of the parties.

The Washington Hospital Extended Care Facility meets the requirements of elements “b” through “e” in the policy’s definition of “hospital.” Ms. McHugh’s testimony establishes that the Facility is, and was at the time of Mr. Huffman’s confinement, open at all times and operated primarily for treatment of inpatients. Reproduced Record at 38a, 35a-36a, respectively. She also testified that physicians are and were available at all times and that a graduate registered nurse is and was present throughout each day. Reproduced Record at 42a-45a, 43a-44a, respectively.

Appellee contends that the Facility fails to meet the requirement of the next element, that to be a “hospital” an institution must provide “organized facilities for diagnosis and major surgery.” Reproduced Record at 88a, 10(f). As authority for its position, appellee relies on Taylor v. Phoenix Mutual Life Insurance Company, 453 F.Supp. 372 (E.D.Pa.1978), and Kravitz v. Equitable Life Assurance Society of U.S., 453 F.Supp. 381 (E.D.Pa.1978), two other cases which applied Pennsylvania law to resolve the issue of whether an institution qualified as a “hospital” as defined in the applicable insurance policy. Close analysis of these cases, however, reveals that they are factually dissimilar to the case at bar.

In Taylor, for instance, the plaintiff had been injured in a motorcycle accident, was hospitalized, and then transferred to the Moss Rehabilitation Hospital. Taylor v. Phoenix Mutual Life Insurance Company, supra. Adjacent to Moss was the Albert Einstein Medical Center, a “general” hospital. 453 F.Supp. at 376. But Moss and Einstein were “totally separate” corporate entities. 453 F.Supp. at 373. In addition, Einstein had a separate medical staff from Moss. 453 F.Supp. at 376. The Court entered summary judgment on behalf of the defendant-insurer because Moss was not a “short-term, acute general hospital” nor did it have “organized departments of medicine and major surgery” as required by the policy’s definition of “hospital.” 453 F.Supp. at 378.

In Kravitz, the plaintiffs daughter had been institutionalized at the Delaware Valley Mental Health Foundation. Kravitz v. Equitable Life Assurance Society of U.S., supra. The Foundation had a “Memorandum of Understanding” with the Doylestown Hospital to the effect that Foundation patients requiring hospitalization could be quickly transferred to the Doylestown Hospital. But again, the Foundation and the Doylestown Hospital were separate institutions. The defendant-insurer’s summary judgment motion was also granted in Kravitz, since the policy’s definition of “hospital” required that a registered nurse be on duty at all times and that surgical facilities exist “on the premises.” 453 F.Supp. at 385. The Foundation did not have a registered nurse present at all in the evenings nor did it have any surgical facilities “on the premises.” The plaintiff in that case was consequently denied relief.

Appellee suggests in its brief that, reading Taylor and Kravitz together, one may “assume” that an institution which merely has access to surgical facilities cannot qualify as a “hospital” since surgical facilities are not directly available at that institution. We should not, however, on a motion for summary judgment make such an assumption. In Taylor, Moss did not qualify as a hospital because it did not have “organized departments of medicine and major surgery.” 453 F.Supp. at 379. This is a more demanding requirement than that in the appellee’s policy which requires only that facilities for surgery be provided. Reproduced Record at 88a, 10(f). Furthermore, in granting summary judgment, the Taylor court relied heavily on the fact that Moss itself was not a general hospital but was primarily an institution for rehabilitative care. 453 F.Supp. at 379-380. The question of surgical facilities was merely incidental to the disposition of the case. The policy in Kravitz, on the other hand, explicitly provided that a “hospital” have surgical facilities “on the premises.” This was also a more demanding requirement regarding surgical facilities than that in the appellee’s policy.

One cannot suddenly deduce, after reading Taylor and Kravitz, that mere access to surgical facilities is insufficient to meet the requirement of a provision concerning facilities for surgery. No such rule can be derived from Taylor and Kravitz because the U.S. District Court disposed of those cases by considering generally the insurance policies involved and the circumstances surrounding the insurance agreement. Consideration of surgical facilities corresponded to the requirements of the unique policies involved in the cases. The Court did not explicitly or implicitly say that an institution which shared surgical facilities could not qualify as a “hospital” under the terms of any insurance policy. In the situation here presented, the policy’s requirement regarding surgical facilities is markedly different, as is the relationship between the entities sharing these surgical facilities.

The Washington Hospital Extended Care Facility is, according to Ms. McHugh’s testimony, a department of the Washington Hospital. Reproduced Record at 63a. The Washington Hospital owns and controls the Washington Hospital Extended Care Facility. Reproduced Record at 29a-30a. These facts serve to distinguish the appellant’s case from Taylor and Kravitz. Moss and the Foundation were merely affiliated with other hospitals. They were neither a department of a hospital nor a subordinate to a hospital as the Facility is in this case and was in 1977-1978.

Furthermore, the insurance policies in Taylor and Krav-itz contained more demanding requirements regarding the provision of surgical facilities. Here, Ms. McHugh testified that organized facilities for major surgery were available to patients at the Washington Hospital Extended Care Facility. Reproduced Record at 59a. This is sufficient to establish that the Facility is able to provide facilities for surgery as required by element “f” of the policy definition of “hospital.” Reproduced Record at 88a, 10(f). Appellee argues that Washington Hospital’s surgical facilities are “available” to the Washington Hospital Extended Care Facility just as they would be available to any other nursing home in Washington County. The surgical facilities might well be available to other institutions, but none of those institutions is owned and controlled by the Washington Hospital. The Washington Hospital Extended Care Facility is therefore an institution which provides its patients with organized facilities for major surgery and as such satisfies the requirements of element “f” in the policy’s definition of “hospital.”

The next element, “g,” used to define “hospital” states that the institution which the insured enters cannot be “primarily a clinic, nursing home, rest home, convalescence home or similar establishment [emphasis added].” Reproduced Record at 88a. Careful reading of this element gives insight with respect to the insurer’s intentions in entering into this contractual agreement. Policyholders were not to expect coverage for expenses incurred while residing at nursing homes or similar establishments. But Ms. McHugh testified that she would not call the Washington Hospital Extended Care Facility a place for convalescence or rest. Reproduced Record at 39a-40a. Indeed, when asked whether the Facility itself should be characterized as a rest-convalescent type of home or as a hospital, Ms. McHugh responded that the Facility was closer to a hospital-type classification. Reproduced Record at 67a. This establishes, first, that the Washington Hospital Extended Care Facility was not an establishment similar to a nursing, rest, or convalescent home, and second, that the degree of skilled care available at the Facility qualified it as an institution outside that set of establishments to which the appellee did not intend to extend coverage.

Finally, the first element, “a,” of appellee’s “hospital” definition demands that a hospital be “an institution which is licensed as a hospital.” Reproduced Record at 88a, 10(a). The record shows that the Washington Hospital Extended Care Facility itself is not licensed as a hospital.

We recognize and acknowledge that this Court cannot create a doubt for the purpose of resolving it in favor of the insured, and that where language in an insurance contract is clear and unambiguous, Pennsylvania courts must give effect to that language. McCowley v. North Ameri can Accident Insurance Company, 150 Pa.Super. 540, 29 A.2d 215 (1943), Standard Venetian Blind Company v. American Empire Insurance, 503 Pa. 300, 469 A.2d 563 (1983). Furthermore, an insurer may draft a policy with explicit exclusions and the Court will uphold the plain meaning of the exclusions since a policyholder cannot reasonably expect unlimited coverage in the face of an explicit, unambiguous limitation.

In determining, however, whether a term in an insurance policy is unambiguous and clear, the term must be considered in the context of the entire policy. Garber v. Travelers Insurance Companies, 280 Pa.Super. 323, 421 A.2d 744 (1980). Considering this policy in its entirety, one must conclude that, under these circumstances, the requirement that an institution be licensed as a hospital is ambiguous. The ambiguity involved in the licensing requirement is that one cannot say with substantial certainty whether the Washington Hospital Extended Care Facility itself must be licensed as a hospital, when it is already a department of a fully licensed hospital. It would seem that a license for a hospital may apply to all of the hospital’s departments. Arguably, then, a department of a licensed hospital has already met a requirement that it be “an institution which is licensed as a hospital.” In any event, the question of whether, as a prerequisite to coverage under the appellee’s policy, the Washington Hospital Extended Care Facility itself would have to be licensed as a hospital is unclear under these circumstances. When an ambiguity is found in an insurance policy provision, that provision must be construed in favor of the insured and against the insurer, the drafter of the agreement. Standard Venetian Blind Company v. American Empire Insurance, supra.

When interpreting an insurance contract, or any type of contract for that matter, a technical interpretation of the contract’s terms cannot be used to defeat the reasonable expectations of the parties. The language of the Pennsylvania Supreme Court in the case of Collister v. Nationwide Life Insurance Company is applicable to the situation at hand:

The reasonable expectation of the insured is the focal point of the insurance transaction involved here. Courts should be concerned with assuring that the insurance purchasing public’s reasonable expectations are fulfilled.

479 Pa. 579, 594, 388 A.2d 1346, 1353 (1978).

Arthur Huffman was admitted to the Washington Hospital Extended Care Facility. He received, as all entering patients do [Reproduced Record at 48a-49a], a pamphlet which informed him that “no one has a desire to be hospitalized” and that the Washington Hospital Extended Care Facility “is a department of the Washington Hospital.” Reproduced Record at 80a. Imagine the chagrin of one who was admitted to the Facility assuming that his insurance would cover the expenses incurred, only to learn that his insurance would not cover those expenses solely because he was in a hospital department which itself was not licensed as a hospital.

The issue in this case, therefore, which underlies the technical problem of interpreting the policy’s licensing requirement is whether Mr. Huffman, at the time of contract formation, could have reasonably and actually believed, after he had read the policy’s definition of “hospital,” that the policy’s coverage would extend to the Washington Hospital Extended Care Facility.

Analysis of the insured’s reasonable expectations, as well as an interpretation of the policy’s definition of “hospital,” will lead to a just resolution of this dispute. The trial court erred in entering judgment as a matter of law for the appellee. It is simply not “clear” that the appellee did not intend to extend its coverage to an institution which, like the Washington Hospital Extended Care Facility, was a department of a fully licensed hospital. To aid the trial court in ascertaining what the status of the Washington Hospital Extended Care Facility was and what Mr. Huffman could reasonably have expected in entering that facility, testimony regarding several matters will be helpful. First, why would a Washington Hospital Extended Care Facility patient be eligible for Medicare payments when a nursing home resident would not be? Second, what is the significance of the Pennsylvania Department of Health’s grant of a license to the Washington Hospital to operate a “Health Care Facility?” Is this an acknowledgement that the Facility will be operated as a part of the Washington Hospital, or the issuance of a license to establish a separate institution? Third, further testimony on the actual amount of administering and “controlling” which the Washington Hospital does with respect to the Washington Hospital Extended Care Facility will be helpful in determining whether the Facility is actually separate from the Hospital, such that the Facility itself would have to be licensed as a hospital before one could reasonably expect it to be covered under the terms of the appellee’s policy.

Thus a full trial on the merits is in order so that the trial court can properly interpret the insurance agreement between the parties. The order granting summary judgment is therefore reversed and the case remanded for further proceedings not inconsistent with this opinion.

Jurisdiction relinquished.

POPOVICH, J., dissents.

      . Definition of “hospital” in appellee’s policy:
      “Hospital” means an institution which
      a. is licensed as a hospital (if hospital licensing is required where it is situated),
      b. is open at all times,
      c. is operated primarily for the medical treatment of sick and/or injured persons as inpatients,
      d. has a staff of one or more licensed physicians available at all times,
      e. provides continuous 24-hour nursing service by graduate registered nurses (R.N.),
      f. provides organized facilities for diagnosis and major surgery, and
      g. is not primarily a clinic, nursing home, rest home, convalescence home or similar establishment.


author: OLSZEWSKI, Judge: MONTGOMERY, Judge,

text:
    486 A.2d 1335
    MEARS, INC., Appellant, v. NATIONAL BASIC SENSORS, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1984.
    Filed Dec. 12, 1984.
    Reargument Denied Feb. 14, 1985.
    Petition for Allowance of Appeal Granted July 25, 1985.

      Kevin J. Sommar, Landsdale, for appellant.
    Robert L. Seigle, Southampton, for appellee.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

In this case, appellant Mears, Inc., appeals the lower court’s denial of its motion for a new trial after a verdict for appellee, National Basic Sensors, Inc. Mears argues that the verdict was contrary to law and against the weight and sufficiency of the evidence and against the charge of the court, and that the trial judge erred in his charges to the jury. After studying the record, the lower court’s opinion and the law, we reverse the lower court’s order denying appellant’s motion for a new trial.

The facts are these: Mears is an insurance agency handling, among others, policies written by American Policyholders Insurance Company. National Basic Sensors was insured, under a “standard multi-perils policy,” for $100,000 by American Policyholders for a three-year period beginning September 1, 1977, with premiums payable yearly. National Basic paid the 1977-78 premium in December of 1977.

When the policy became effective in 1977, National Basic operated in leased quarters in Feasterville, Pennsylvania, In January, 1978, the company purchased a building in Churchville, Pennsylvania, and requested proof of insurance for mortgage purposes. Mears issued a binder showing proof of insurance for $160,000 for the new location, an increase of $60,000 over the prior coverage. The binder, which referred to the insurance policy already in existence for National Basic, expired on September 1, 1978. The only document received by National Basic showing the new location and coverage was this binder.

In April, 1978, National Basic requested an increase in coverage, from $160,000 to $190,000. Mears assured National Basic that the company was covered, but issued no binder or endorsement to reflect the change. An officer of National Basic, Raymond McHugh, “repeatedly requested that Mears furnish to National Basic additional evidence that the new property was insured and requested the issuance of a formal policy.” This Mears did not do. When National Basic received a bill from Mears on September 1, 1978, referring to the original premises in Feasterville as the insured premises, officers of National Basic contacted American Policyholders directly and then cancelled the policy. Mears sent National Basic a bill for the increased and changed insurance coverage from January 5, 1978 to September 1, 1978, which National Basic refused to pay. Mears brought suit, and the verdict was for National Basic.

First, we must note that appellant makes “boilerplate” allegations that the verdict was contrary to law, contrary to the charge of the court and against the weight and the sufficiency of evidence.

These allegations are most general. In Carnicelli v. Bartram, 289 Pa.Super. 424, 433 A.2d 878 (1981), this Court held that where a new trial had been granted on the basis of a motion arguing that the verdict was contrary to law and contrary to the evidence, the trial court had abused its discretion. The Court held that such general assignments of error did not state grounds for relief, and that the trial court should have ignored them in favor of specific assignments.

The rationale behind this policy is to give the court notice as to which mistakes were supposedly committed. If the arguments are unclear, the court is adrift in a trackless sea of potential error when reviewing the case. The policy is much like that of barring appellate courts from reviewing questions not preserved below; had the arguments been made, the lower court might have decided the issue in the party’s favor, thus obviating the need for judicial review. See Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982). When the assignments are general, the court does not know what specific complaints exist in the mind of counsel, and cannot be expected to divine them. To so require the courts would not serve the goal of orderly and efficient use of judicial resources.

We hold that the policy enunciated in Carnicelli applies here and precludes us from considering appellant’s assignments that “the verdict was contrary to law, contrary to the evidence and the charge of the court, and against the weight of the evidence.” Accordingly, we will not look into these claims.

Appellant did make other, specific, assignments of error in its motion to the court below, and these we will examine. First is the argument that the court erred by failing to read to the jury certain points of charge.

The standard for whether a new trial is properly denied is whether the trial court’s order represents a palpable abuse of discretion or is based on an error of law. Bumbarger v. Kaminsky, 311 Pa.Super. 177, 457 A.2d 552 (1983). Here, the argument is that the court below made an error of law in charging the jury as it did. The jury was charged that a policy or endorsement must be delivered within a reasonable time after agreement or the insured is not liable for premiums. The court refused to charge the jury that National Basic had been covered by American Policyholders for the time of the binder and for the time when no binder or endorsement existed. We must examine pertinent contract law to determine whether an error was made.

In interpreting a contract, we must first examine its language; and if the contract’s language is clear and unequivocal, its meaning must be determined by its contents alone. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). In the instant case, the contract of insurance, states:

Added Provisions. The extent of the application of insurance under this policy and of the contribution to be made by this Company in case of loss, and any other provision or agreement not inconsistent with the provisions of this policy, may be provided for in writing added hereto, but no provision may be waived except such as by the terms of this policy is subject to change.

We hold that the binder issued by Mears for the period January 5, 1978, to September 1, 1978, is sufficient to satisfy the contract’s requirements of changes in writing. The binder, by its terms, refers to the main contract of insurance, and is made a part of it.

The trial court thus erred by instructing the jury that the actual issuance of a formal policy was required before National Basic could be required to pay any premiums. By the terms of the contract, American Policyholders was liable for claims made by National Basic between January 5, 1978, and September 1, 1978, and National Basic was liable for premiums on that policy.

Whether premiums are due for the additional $30,000 in coverage which is not evidenced by a writing must be decided by different means. By the terms of the policy,

American Policyholders was liable only for claims covered in writing in the policy, and thus it would seem that American Policyholders was not liable for claims in excess of $160,000 on the policy. If American Policyholders was not liable, then National Basic is not liable for the premiums, since it had no coverage.

Appellant argues vigorously that because, under caselaw, American Policyholders and Mears would have been required to pay claims by National Basic had it incurred a loss, even though there was no binder or endorsement in existence, National Basic had insurance and should be required to pay for it. We disagree.

The trial court stated that National Basic had bargained for tangible evidence of an insurance policy when it negotiated the changes leading to the case at bar. We agree, but with an added observation: National Basic had bargained for regular insurance coverage. What it received was flawed coverage — coverage fraught with potential for suit.

We cannot say that every policy that is facially valid leads to automatic recovery once the insured files a claim with the insurer. The great number of cases on insurance coverage would make such a claim laughable. We can say, however, that where a claim is made doubtful, either through uncertainties in coverage or peculiar events leading to the claim, litigation is much more likely to result.

National Basic bargained for regular insurance coverage, not coverage which came with free litigation potential. The trial court was correct in charging the jury that in the absence of a reasonable excuse, Mears was required to give National Basic some tangible proof of insurance before Mears could recover this part of the premium.

Finally, appellant argues that the trial court erred by failing to tell the jury that premiums were due Mears for the period September 1 through November 29, 1978, the time during which National Basic was attempting to discover what coverage it had. By our reasoning in the earlier part of this opinion, since National Basic was covered by the original policy issued by Mears for $100,000 at the old location for this time, the binder having expired by its own terms, National Basic is liable for premiums due under the old policy for the old location. The trial court erred by failing to so inform the jury.

Because the court below based its order on an error of law, the order denying a new trial is reversed.

MONTGOMERY, J., filed a dissenting statement.

MONTGOMERY, Judge,

dissenting:

I respectfully dissent. I believe the charge of the lower court, considered as a whole, does not provide a basis for the Appellant to be awarded a new trial on any ground. The majority finds that the lower court should have directed the jury to make a particular finding that premiums were due during a time period during which I believe the evidence established grounds for a reasonable difference of opinion. Thus, I believe that a jury question existed on the issue, and that the evidence justified the jury’s conclusion that the Defendant-Appellee should not have been held liable for premiums. I would affirm the lower court’s denial of Appellant’s request for a new trial.

      . American Policyholders sent completed change endorsements to National Basic on or about December 19, 1978, reflecting the changed location, the changed payees and the increased coverage.

      . The record indicates that Mears charged National Basic for added coverage and changed location from January 5, 1978, to September 1, 1978, and for $30,000 in increased coverage from April 26, 1978, to September 1, 1978, until November 28, 1978. The total charges were $4,936.

      . The points are lengthy, but in essence state that:
      —When an agent promises that an insured is covered, the law will impose liability upon the agent for the obligation.
      —Mears, by giving assurances of coverage, was acting within the scope of its agency and National Basic had the protection requested of Mears.
      —If insurance is provided, the insured must pay premiums.
      —The issuance of an endorsement after cancellation does not affect whether coverage existed prior to the endorsements; coverage existed for the disputed period.

      . Appellee argues that by statute, no binder is effective for more than 30 days. 40 P.S. § 636(5)(d) provides:
      (d) Binders or other contracts for temporary insurance, including fire insurance, may be made orally or in writing, for a period not to exceed thirty days, and shall be deemed to include all the provisions of subsection two of this section and all such applicable endorsements approved by the Insurance Commissioner as may be designated in such contract of temporary insurance, except that the cancellation clause and the date thereof specifying the hour of the day at which the insurance shall commence may be provided by the express terms of such contract of temporary insurance.
      Appellee offers no cases to show that this statute was designed to automatically invalidate all contracts for temporary insurance 30 days after they are executed. We think the purpose of the statute is to protect consumers of insurance, not subject them to uncertainty. We do not think that it made the binder in the instant case invalid after 30 days.

      . Appellant makes this argument via its contention that the trial court failed to charge the jury so.


author: POPOVICH, Judge:

text:
    486 A.2d 1340
    COMMONWEALTH of Pennsylvania v. Larry Ray NELSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1984.
    Filed Dec. 31, 1984.
    Petition for Allowance of Appeal Denied July 8, 1985.

      Affirmed in part and reversed in part.

      Robert J. Campbell, New Brighton, for appellant.
    Anthony J. Berosh, Assistant District Attorney, Beaver, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Beaver County denying the appellant’s, Larry Ray Nelson’s, request for relief pursuant to the Post-Conviction Hearing Act (PCHA). 19 Pa.S.A. § 1180-1 et seq., as amended; reenacted at 42 Pa.C.S.A. §§ 9541-9551. We affirm the PCHA court in regard to the suppression and jury charge issues, but are constrained to reverse as to the merger and allocatur claims.

The appellant, following a trial by jury, was convicted of robbery, aggravated assault and simple assault in the shooting of gas station attendant Rosemarie Sisco, in the presence of her 10-year-old son Eugene, on August 4, 1979. Post-trial motions, supplemented with a brief restricted to the single question of: “1. Did the Court err in denying defendant’s motion for a ‘demurrer’ based on the insufficiency of proof of identification by prosecution witnesses?”, were denied. Thereafter, the appellant was sentenced to 2V2-5 years for robbery. For the aggravated assault conviction, the appellant was ordered to pay the costs of prosecution and a fine of $500, as well as being confined for not less than two nor more than four years at the Western Correctional, Diagnostic and Classification Center in Pittsburgh. The sentences were ordered to be served concurrently.

On appeal to this Court, in which trial counsel from the public defender’s office raised the only issue argued below, i.e., the identification issue (see PCHA Hearing Tr. at 26), we affirmed per curiam the judgment of sentence. Commonwealth v. Nelson, 298 Pa.Super. 586, 443 A.2d 384 (1982) (Hester, Popovich and Montgomery, JJ.). No further appeal was taken.

On October 18, 1982, the appellant filed a pro se PCHA petition claiming the denial of his constitutional right to competent representation and the post-trial securement of exculpatory evidence. At the appellant’s request, (private) counsel was appointed and submitted a “First Amended Motion For Post Conviction Relief” reasserting the competency question in the context of prior counsel’s failure to raise at post-trial and on appeal:

1) the trial court’s alleged error in not suppressing the identification testimony of the Siscos on the ground that “both witnesses participated in a post-arrest photo array at which Defendant was not represented by counsel____” (Paragraph 11, subsection (a))
2) the deficiency of the jury charge in not requiring the prosecution to prove by “clear and convincing” evidence a basis for the Siscos’ identification testimony independent of the allegedly tainted post-arrest photo array.
3) the merger of aggravated assault and simple assault with the robbery offense.

At the commencement of the PCHA hearing, counsel for the appellant was granted his request to assail, in addition to the other grounds raised, prior counsel’s failure to call Miss Teri Taylor, the appellant’s sister, and a Miss Bonita Humphrey, both of whom, according to trial counsel’s own recollection, would have testified to speaking on separate occasions with the victim and being told by her that “she was really not sure of who [sic] her assailant was____” (PCHA Hearing Tr. at 22)

However, just prior to the completion of the hearing, the appellant’s counsel’s attempt to add to the issues already mentioned the claim of prior counsel’s failure to petition for allowance of appeal to the Supreme Court of Pennsylvania was denied by the PCHA court as “outrageous.” (PCHA Hearing Tr. at 28) Undaunted, after the PCHA hearing, counsel for the appellant filed a “Second Amended Motion For Post Conviction Relief” raising all of the issues previously mentioned, with the inclusion of the allocatur claim. Nonetheless, all of the issues were found wanting and the relief requested was denied. This appeal ensued and the claims raised are properly before us for review. See Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

Initially, the appellant complains that prior counsel was ineffective for failing to raise at post-trial or on prior appeal the suppressibility of the Siscos’ 3-4 post-arrest photo identifications of him in the absence of counsel, citing to Commonwealth v. Riley, 284 Pa.Super. 280, 425 A.2d 813 (1981), which relies upon the ruling in Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), that an accused has a right to be represented by counsel at a post-arrest photographic display.

Since the merits of the aforementioned issue were not considered previously by this Court there is no reason to find the matter finally litigated, see Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981), nor is it waived given its juxtaposition with the “extraordinary circumstances” of counsel’s ineffectiveness for its failure to appear previously on appeal. 42 Pa.C.S.A. § 9544(b)(2).

We note that both the Commonwealth and the PCHA court counter the appellant’s tainted photo-array argument with the citation to United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) and Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974) as support for the abrogation of the Whiting holding concerning one’s right to counselled photo-arrays following arrest.

We, as has been the case so often with our Supreme Court in like circumstances, find it unnecessary to reach the question of the continuing viability of Whiting following Ash. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983) and compare with Commonwealth v. Ferguson, 327 Pa.Super. 305, 475 A.2d 810 (1984) (Whiting still good law in Pennsylvania despite Ash).

Here, viewing the evidence in a light most favorable to the verdict-winner, as we must, and drawing all proper inferences therefrom the trier of fact could reasonably have found beyond a reasonable doubt that the appellant was the perpetrator of the crimes charged. See Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976). In fact, this was the conclusion drawn by this Court on appellant’s initial appeal in which his counsel (now alleged to be ineffective) attacked the Siscos’ pre-trial identification on inconsistency grounds claiming that a reversal of the trial court’s denial of his demurrer was warranted. (See Record No. 11; PCHA Hearing Tr. at 26) Present counsel attempts to resurrect this inconsistency argument under the rubric of ineffectiveness as it relates to the suppression issue. In particular, appellant’s counsel writes:

Both Rosemarie Sisco (Tr. 28) and Eugene Sisco (Tr. 32) testified at trial that they directly observed the defendant at the time of the events in question. There was a significant discrepancy in the testimony of the two witnesses as to the length of the observation.
The direct observation aside, there are, defendant contends, weaknesses in the identification testimony of both witnesses. Rosemarie Sisco testified at trial that, when she selected defendant’s photo at the time of the array, she was not sure that he was the assailant (Tr. 18). Eugene Sisco testified at trial that, at the array, he could identify defendant’s photo “just a little” (Tr. 86); and that he testified at [the] preliminary hearing that he could not picture the face of the assailant (Tr. 39). The prosecuting officer testified that he was provided with two different descriptions of the assailant (Tr. 48). (Appellant’s Brief at 11-12)

Counsel concludes that the identification issue is of arguable merit and there is no reasonable basis for prior counsel’s failure to raise it previously. We think otherwise.

Just as counsel for the appellant has pointed out instances where the victim and her son varied their accounting of the identification factors leading to their belief that the appellant was at fault, it is beyond cavil that the jury was cognizant of the same information.

Notwithstanding all of the aforementioned, the jury, whose function it was to assess the credibility of the witnesses, obviously believed the Siscos’ in-court identification of the appellant as the guilty party. We will not invade the province of the jury and attempt to second-guess their decision for such is not the function of an appellate tribunal. See Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980); Commonwealth v. Kloiber, 378 Pa. 412, 425, 106 A.2d 820, 827 (1954) (“... a weak identification, together with other evidence in the case, may be sufficient to convince a jury of the defendant’s guilt beyond a reasonable doubt — the credibility of the witnesses and the weight to be given their identification is, under proper instructions from the Court, exclusively for the jury.” (Footnote omitted) (Citations omitted)).

We observe that at trial the victim recounted becoming scared and freezing for 2-3 minutes during the 5-10-minute ordeal in which she spoke to the assailant and observed him from the waist up from her position behind the window counter at approximately 4:30 p.m. on the 4th of August, 1979. After she had retrieved the coins from a box below the window counter she was shot in the right arm as she was reaching for the rest of the money. Likewise, the victim’s son was inside the booth and witnessed the shooting. He too admitted to freezing for a few minutes during the episode, but he did get a good look at the assailant after his mother was shot and lay bleeding on the floor when the robber attempted to enter through the side, glass door.

Also, there was testimony from an employee (Angela Roach) at a Kentucky Fried Chicken, located about lk block from the self-service gas station, placing the appellant (whom she knew) in the vicinity during the robbery carrying or wearing a “red” item. This was relevant since Eugene Sisco recalled that the assailant had the gun, with which his mother was shot, under a “red” sweater.

We cannot emphasize enough the commendable job done by defense counsel in his efforts to undermine the credibility of the Siscos, and, thus, cast their identification testimony in an unfavorable light; e.g.:

1) The Siscos described the assailant as having his hair in “tight braids”; yet, the police noted that a few hours after the appellant’s arrest his hair, on the night in question, was not braided.

2) Eugene Sisco stated he selected the appellant’s photo a few days after the incident and that he “could identify him just a little ... [b]y his face.” However, he conceded that at the preliminary hearing he could not picture the assailant’s face.

3) Eugene Sisco testified at the preliminary hearing that the assailant had a striped shirt, but at trial he said he meant to say checkered.

4) The victim stated at one point in her cross-examination that she viewed her assailant for “a matter of seconds”. This was changed on re-direct examination to “a little bit more” than 2 minutes.

5) The victim selected the appellant’s photograph 10 days after the incident, but she “wasn’t sure at that time.” She also admitted to telling several people in the community that the name “Nelson” sounded like that of someone she went to school with.

6) Eugene Sisco gave the assailant’s height as 5' 4"; appellant’s is 5' 9".

7) Both the victim and the son recalled separate features of the assailant; e.g., son stated he wore blue jeans and the victim described him as having a mustache.

In a similar context our Supreme Court has observed that:

This Court has repeatedly held that it is within the sole province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Here, the jury chose to believe the Commonwealth witness. The fact that he was unable to identify appellant at the lineup is relevant to only the weight and credibility of his testimony. The trial court carefully instructed the jury concerning the credibility of eyewitness identification, and no exceptions were taken to that portion of the charge. In these circumstances, we find no basis for disturbing the jury’s determination. (Citations omitted)

Commonwealth v. Davis, supra, 466 Pa. at 113, 351 A.2d at 647.

Instantly, the victim and her son, along with the employee from Kentucky Fried Chicken, gave an accounting of the circumstances surrounding their opportunity to observe the appellant and allowed the jury to digest fully the underpinnings of their identification testimony. See Commonwealth v. Tate, 229 Pa.Super. 202, 323 A.2d 188 (1974). Thus, because of trial counsel’s thorough cross-examination, the jurors knew about the shortcomings in each witness’ testimony. It was the jurors’ proper role, therefore, to determine the weight that each witness’ in-court identification deserved. See Commonwealth v. Floyd, 494 Pa. 537, 544, 431 A.2d 984, 988 (1981) (“... the witness ... was not able to positively [sic] identify appellant but merely stated that he resembled the shooter____ The learned trial court properly permitted the jury to consider this witness’s trial testimony and make its own judgment as to the weight it was to be given.”); see also Parks v. United States, 451 A.2d 591, 604 (D.C.App.1982).

We find no impropriety on the part of the court below in allowing the in-court identification testimony of the Siscos, since the facts clearly indicate that the identification was reliable and independently based and, thus, not tainted by the events of the uncounselled photographic arrays. Accordingly, trial counsel will not be held to be ineffective for failing to raise an issue ruled to be baseless. See Commonwealth v. Davis, 313 Pa.Super. 355, 459 A.2d 1267 (1983). Nor will this Court, as noted earlier, engage in a re-evaluation of the witnesses’ credibility. Commonwealth v. Council, supra; see also Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982).

Appellant’s second claim is equally meritless for counsel will not be labelled inept for not requesting that the court charge the jury that the Commonwealth had the burden of proving by clear and convincing evidence that the identification testimony had a basis independent of the allegedly tainted pre-trial photo-arrays.

The trial court painstakingly reviewed with the jury its obligation to review the evidence and return a verdict of guilty only after being satisfied beyond a reasonable doubt that the appellant’s participation had been established. In particular, the court mentioned certain matters which should be considered in evaluating the Siscos’ identification testimony; viz.:

Whether the testimony of the identification witness is generally believable; whether the witness had opportunity to observe a sufficient period of time to allow them to make accurate identification; how the identification was arrived at. [sic] In other words, what were the circumstances under which the identification was made? All circumstances indicating whether or not the identification was accurate, and whether the identification testimony is supported by other evidence. You must consider all of these matters in deciding whether you can accept the identification testimony as being accurate.

The trial court went on to state:

Now, in determining credibility, which is really believability, how do you know what factors you consider? Well, some of them are these: Whether or not a witness has any interest in the outcome of the case. Another factor is the demeanor of the witness on the witness stand. Another is the ability and opportunity of a witness to acquire knowledge and to observe matters which are of the utmost importance in that particular situation. Another is the consistency or inconsistency of the testimony. Another is whether or not there is corroboration for the testimony given. You must weigh all of these matters in determining what really did happen and who was involved on this date in August of 1979.

Suffice it to say, although the Commonwealth bears the burden of establishing by clear and convincing evidence that an independent basis for an in-court identification exists separate from a tainted pre-trial identification, see Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978), this is not a standard to be utilized by a jury in assessing an accused’s guilt. Rather, it is the yardstick against which the court gauges the Commonwealth’s proof in establishing the admissibility of identification testimony. This determination takes place, preferably, at the pre-trial (suppression) stage so as to decide in advance of trial whether the trier of fact should be exposed to such evidence. Nonetheless, it is not uncommon for the denial of such a claim to be argued in post-verdict motions and on appeal. See, e.g., Commonwealth v. Jones, 324 Pa.Super. 359, 361, 471 A.2d 879, 880 (1984); Commonwealth v. Green, 321 Pa.Super. 246, 467 A.2d 1346 (1983); Commonwealth v. Diggs, 260 Pa.Super. 349, 394 A.2d 586 (1978).

Appellant’s argument, having no support except in the self-serving statements of appellate counsel, is found wanting and is denied.

Appellant frames the third averment as a sentencing question contending that the offenses of aggravated assault and simple assault merged with his robbery conviction and trial counsel was ineffective for not raising the issue sooner. We agree in part.

To start with, no sentence was ever entered by the court below (be it concurrent or consecutive) for appellant’s conviction of simple assault. Thus, since one can only appeal from a judgment of sentence and not a conviction, see Commonwealth v. Smith, 322 Pa.Super. 389, 469 A.2d 676 (1983), that portion of appellant’s appeal dealing with the conviction for simple assault is frivolous and will be denied. Commonwealth v. Bey, 504 Pa. 284, 290 n. 5, 472 A.2d 1062, 1065 n. 5 (1984). However, the same cannot be said for aggravated assault. Even though the sentencing issue was not raised previously, it is not waived, Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), and, in fact, could be addressed sua sponte. See Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89 (1982). No less is this the case because the sentence entered was to be served concurrently with that imposed for robbery. Cf. Commonwealth v. Elias, 394 Pa. 639, 149 A.2d 53 (1959) (Suspended sentence is appealable).

In deciding whether the aggravated assault merged with the robbery conviction, “[t]he true test ... is ... whether one crime necessarily involves another____” Commonwealth v. McCusker, 363 Pa. 450, 457, 70 A.2d 273, 276 (1950), citing Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941).

Applying the doctrine of merger to the case at bar, we see that those facts which proved the elements for robbery, i.e., the infliction of serious bodily injury when the appellant shot Mrs. Sisco in the arm in the course of a theft (18 Pa.C.S.A. § 3701(a)(l)(i)), also established a violation of the aggravated assault statute, i.e., causing seriously bodily injury to Mrs. Sisco, intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life (18 Pa.C.S.A. § 2702(a)(1)). Accordingly, given the facts instantly, the court below erred in sentencing the appellant on both robbery and the lesser included offense of aggravated assault.

We need not remand for resentencing, however, because by imposing concurrent terms for the merged offenses, the court below indicated that it regarded this case essentially as one of robbery in which the other sentence did not influence its sentencing for the principal crime. See Commonwealth v. Moore, 300 Pa.Super. 488, 493, 446 A.2d 960, 963 (1982). Consequently, we will merely vacate the sentence for aggravated assault while affirming the one for robbery.

The fourth and fifth questions to be dealt with concern appellant’s assertion that trial counsel was ineffective for failing to call Teri Taylor, his sister, and Bonita Humphrey in his defense. The two would have testified, supposedly, that the victim told each that “she did not know who committed the offense in question.”

At the PCHA hearing, trial counsel stated he decided not to call Taylor and Humphrey as witnesses because he felt he had already “put holes into the testimony of Mrs. Sisco and her son.” We agree that trial counsel’s vigorous cross-examination of the victim and her son highlighted what flaws existed in the prosecution’s case. Thus, counsel will not be held derelict for failing to pursue a course which would not have offered a potential for success substantially greater than the one actually followed. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967).

The last of appellant’s complaints relates to trial counsel’s failure, who was the same attorney who initially appealed to this Court, to petition for allowance of appeal with the Supreme Court of Pennsylvania.

The reasons given by trial counsel for not filing the petition appear of record:

I told him [the appellant] that the Petition for allowance of appeal to the Supreme Court on this type of case, I didn’t feel there was any merit to it. It had already been turned down by the Superior Court and this is the kind of issue the Supreme Court would not hear____ I advised him at that time to pursue a post conviction petition alleging [the Taylor and Humphrey witness matter] ... as probably new evidence____ (PHCA Hearing Tr. at 23)

Appellant confirmed prior counsel’s position and the reason for not appealing further when he testified: “He [counsel] put it blunt and told me I couldn’t, you know, I couldn’t file for an appeal anymore. He said it’s time to go to jail.” (PCHA Hearing Tr. at 14) We believe that the aforesaid negates any possibility that the appellant’s decision not to file an allowance of appeal was knowingly, intelligently and voluntarily made. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Commonwealth v. Porta, 297 Pa.Super. 298, 443 A.2d 845 (1982) (POPOVICH, J.). Also, it is contra the stance taken by our Supreme Court, which, in a similar situation, has stated:

In dismissing the present petition, the court below relied in part on the conclusion of counsel appointed on the nunc pro tunc petition that an appeal was not warranted. The court concluded, therefore, that appellant had been afforded his day in court and that no deprivation had occurred by reason of his failure to obtain appellate review. We do not agree.
It is not our impression that the Douglas [v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)] decision was intended merely to replace counsel for the courts as a screen to determine which cases have sufficient merit to warrant the appointment of counsel for the prosecution of an appeal. In our view, the mere fact that counsel did not consider appellant’s prospects on appeal as favorable was not of itself sufficient grounds for holding that appellant’s constitutional right to the assist-anee of counsel on appeal had been fully satisfied. That right embodies more than the right to the assistance of counsel in “meritorious cases”; it embodies the right to representation on appeal if the defendant so desires, whatever the prospects of success may appear to be to the court or counsel. As this Court pointed out in Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 160, 218 A.2d 811, 813 (1966), “[h]ad appellant the funds with which to retain counsel, we do not doubt that he would have been able to indulge his grievances, real or fanciful, on appeal. Appellant was entitled to no less.”

Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 243, 220 A.2d 886, 888 (1966).

Instantly, from our reading of the record, there is little doubt that trial counsel decided that a petition to the Supreme Court would be meritless and he so informed appellant, who took no action thereafter until he filed the PCHA petition being reviewed here.

Aside from the fact that a defendant is entitled to representation at each stage of the appellate process {see Pa.R.Crim.P. 316(c)(iii)), it is for the accused and not his counsel to decide whether to pursue an appeal. Cf. Commonwealth v. McCandless, 301 Pa.Super. 128, 133, 447 A.2d 275, 278 (1982) (“Whether to adopt [counsel’s] strategy by withdrawing the appeal ... was not a decision for appellant’s parents but for appellant.”). This did not occur here. On the contrary, appellant was told he “couldn’t file an appeal anymore” following his initial appeal to the Superior Court. A point which was testified to by appellant and not refuted by trial counsel, who, interestingly enough, took the stand after appellant at the PCHA hearing. We find such conduct on the part of prior counsel to be tantamount to ineffective assistance. See Commonwealth v. West, 334 Pa.Super. 287, 482 A.2d 1339 (1984).

Based on the preceding, we reverse the order of the PCHA court. Judgment of sentence as to appellant’s aggravated assault conviction is vacated and appellant is granted leave to file a petition for allocatur nunc pro tunc to the Supreme Court of Pennsylvania. The court below is directed to appoint counsel to assist appellant in filing such a petition, which is to be filed within 30 days of the appointment of counsel. The case is remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

Order affirmed in part and reversed in part.