author: HUDOCK, Judge:

text:
    597 A.2d 667
    NEWELL ROD AND GUN CLUB, INC., Appellant, v. Walter BAUER, Florence Bauer, Lehigh Valley Railroad Company, Andrew Andjeski, Susan Linso, Ferdie Marek, F.C. Harrison, D.J. Waller, Oscar R. Hartel, Matilda G. Hartel, Their Agents, Heirs, Successors, Representatives and Assigns, Appellees.
    Superior Court of Pennsylvania.
    Argued May 23, 1991.
    Filed Sept. 27, 1991.

      Franklin E. Kepner, Jr., Berwick, for appellant.
    John' Kocsis, III, Athens, for appellees.
    Before WIEAND, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

In the instant appeal, Appellant, Newell Rod and Gun Club, Inc., (the Club), claims that the trial court erred in granting it a prescriptive easement or right-of-way rather than title in fee to a roadbed formerly used as a railroad. We disagree and thus affirm the order of the court below.

The facts underlying the present appeal, as listed in the trial court’s factual findings, may be summarized as follows: The Club is the owner in fee simple of several parcels of land in Colley Township, Sullivan County, Pennsylvania, totalling approximately 1,320 acres. Appellees, Walter Bauer and Florence Bauer, his mother, (the Bauers), are the fee simple owners of a parcel of property, approximately 118 acres, which adjoins the southerly boundary of the Club’s lands. Title to both the Club’s and the Bauers’ land originates from a common grantor, (Harrison and Waller). In 1887, Harrison and Waller conveyed a sixty-foot right-of-way to a railroad which later came to be known as the Lehigh Valley Railroad, (the railroad). The right-of-way “bisected” what is now the Club’s and the Bauers’ land. (Trial Court Opinion, Finding of Fact No. 6). The railroad used the right-of-way for rail purposes for approximately fifty years. In the late 1930’s, the railroad ceased using the railroad bed and removed all railroad ties. The railroad made no further use of the properties after this time period.

In 1947, the Club leased some of the lands it later purchased and began using the “abandoned railroad bed”, (Trial Court Opinion, Finding of Fact No. 8), as a roadway to gain access to the lands. The Club did not seek the consent of the railroad. The Club began purchasing the real estate it now owns in 1950. From 1947 through 1990, the Club improved the railroad bed to make it useable as a roadway. The Club’s members annually repaired the road and its drainage pipes, which they installed. During this same period, the Club maintained a locked chain gate at the entrance of the roadway. Only members, with one exception, were issued keys to the lock. Access to the roadway, and thus adjoining lands, is barred to the public.

Both the Club and the Bauers use the roadway to gain access to their realty, first crossing the lands of the Club, then that of the Bauers, and then the Club’s land again. The Bauers acquired title to their parcel of land by deed in 1967. The Bauers’ deed also grants to them “the interest of the grantors in the old Lehigh Valley Railroad right-of-way ... to and across [Bauers’ parcel], subject to the right to use the same as previously granted ... [to the Club.]” (Trial Court Opinion, Finding of Fact No. 12). In 1968, Walter Bauer asked for and received a key to the locked chain gate at the entrance of the road. From 1968 to 1990, the Club and the Bauers used the road in common and shared some of the expenses of care and maintenance. In 1979, the railroad conveyed its interest in that part of the right-of-way over the Bauers’ lands to the Bauers by quitclaim deed. The quitclaim deed states that the conveyance “is under and subject to ... visible easements and easements and restrictions of record ...” (Trial Court Opinion, Finding of Fact No. 15). From 1947 to 1990, the Club has openly and continuously used the former railroad bed as a road to gain access to its lands. The road as used is twelve feet in width.

The Club instituted an action by filing a complaint to quiet title on June 24, 1988. Thereafter, in October, 1988, the Club obtained default judgments against all of the other named defendants with the exception of the Bauers. The matter then proceeded to a non-jury trial. After making the above-summarized factual findings, the trial court’s conclusions of law were that the Club owned a prescriptive easement over the Bauers’ land for the purposes of ingress and egress to its hunting premises. The trial court further concluded that the easement or right-of-way was for the use in common with the Bauers and that it was twelve foot wide and followed the presently existing roadway. The Club claims that the evidence it presented proved that they were entitled to fee ownership of the land, as such an interest was acquired through adverse possession. We do not agree and, therefore, affirm the trial court’s award of a prescriptive easement to the Club.

Our research fails to discover an appellate case where use of a road over the land of another for an extended period of time, along with improving the roadway, was sufficient to support a finding of fee ownership of the land by adverse possession. Indeed, the cases we have discovered support the trial court’s award of a prescriptive easement. The difficulty in determining this issue is the fact that Pennsylvania case law, like that of its sister states, has blended the doctrines of prescription and adverse possession.

The chief distinction between the doctrines is that in adverse possession the claimant occupies or “possesses” the land of fee owner, whereas in prescription the claimant makes some easement-like use of it. In defining a prescriptive easement, this Court has used both the terms “use” and “possession.” Compare Walley v. Iraca, 360 Pa.Super. 436, 441, 520 A.2d 886, 889 (1987) (“A prescriptive easement is created by (1) adverse, (2) open, (3) notorious, (4) continuous and uninterrupted use for a period of twenty-one (21) years.”); Hash v. Sofinowski, 337 Pa.Super. 451, 455, 487 A.2d 32, 34 (1985) (“It is axiomatic that an easement by prescription arises by actual, continuous, adverse, visible, notorious and hostile possession of the property in question for a period of 21 years.”). Likewise, in defining the doctrine of adverse possession, this Court has interchanged the terms “use” and “possession.” Compare Dunlap v. Larkin, 342 Pa.Super. 594, 605, 493 A.2d 750, 756 (1985) (“To claim title by adverse possession, however, one must prove an (1) actual, (2) visible, (3) notorious, (4) exclusive and distinct, (5) hostile, and (6) continuous use for twenty-one years.”); Schlagel v. Lombardi, 337 Pa.Super. 83, 86, 486 A.2d 491, 493 (1984) (“[0]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years.”).

As can be seen by the above definitions, adverse possession, unlike prescription, requires exclusivity. In Dunlap v. Larkin, supra, property owners/appellants brought an action to enjoin the erection of a building, alleging that it would not comply with a county zoning ordinance. A preliminary injunction was issued and bond made, and the action was subsequently remanded to the zoning hearing board which upheld the grant of the building permit. An action was then brought by builders/appellees to enforce bond for damages allegedly resulting from the injunction. Property owners/appellants then brought an action in ejectment based upon an alleged easement by prescription. The trial court entered judgment, following a jury verdict, in favor of property owners/appellants on their claim that the building encroached upon their property, against property owners/appellants on their claim for an easement by prescription, and in favor of appellees for $8,000 for damages sustained by reason of the injunction issued to property owners/appellants. Among the issues raised on appeal, property owners/appellants claimed that they were entitled to a new trial on their alleged acquisition of a prescriptive easement because the trial court gave a confusing and improper charge to the jury. This Court agreed, stating:

While the [trial] court apparently used the term “adverse possession” interchangeably with the term “easement,” it charged the jury not on the elements of an easement by prescription, but rather on those of adverse possession. Although the judge did attempt to correct the charge on the “exclusivity” element, we find even that portion of the charge contradictory----

Id., 342 Pa.Superior Ct. at 608, 493 A.2d at 757-58. In making this determination, this Court stated that one claiming an easement by prescription need not show an exclusive and distinct use. Upon reviewing the pertinent part of the trial court’s instructions, this Court concluded that this factor was not adequately conveyed to the jury.

Another factor for establishing a prescriptive easement that is somewhat less stringent than that required for adverse possession is the “continuous use” of the property. In establishing a prescriptive easement, constant use need not be demonstrated in order to establish the continuity of the use. Rather, “continuity is established if the evidence shows a settled course of conduct indicating an attitude of mind on the part of the user or users that the use is the exercise of a property right.” Minteer v. Wolfe, 300 Pa.Super. 234, 240, 446 A.2d 316, 319 (1982), quoting Keefer v. Jones, 467 Pa. 544, 548, 359 A.2d 735, 737 (1976). A review of the record in the instant case leads us to conclude that the trial court, based upon its findings of fact, properly awarded the Club a prescriptive easement. The record reveals that several members of the Club used the road on a regular basis and provided substantial improvements to the road, for almost a fifty-year period, under the belief that they had a property interest in the road.

All of this evidence, however, is consistent with an easement-like use of the property. Our difficulty is finding that the Club exercised exclusive “use” over the property such that it is entitled to title to the land by adverse possession. In an action to quiet title, an appellate court will not reverse the determination of the trial court absent an error of law or capricious disregard of the evidence. Klebach v. Mellon Bank, 388 Pa.Super. 203, 565 A.2d 448 (1989). While the testimony presented by the Club characterized the Bauers’ use of the driveway as by their permission, and that the general public was excluded from using the road, the trial court found that the road was used in common by both the Club and the Bauers. This finding is supported by Walter Bauer’s testimony that he had also worked to improve the road and shared some maintenance costs. Thus, the Club’s claim that the trial court erred in failing to award them title to the railroad bed by adverse possession is without merit.

Order affirmed.

      . A review of an earlier deed, in which a parcel of the Club’s current property was conveyed to them, reveals that the grantors conveyed a "right-of-way for ingress, egress and regress to the [parcel] by way of the old Lehigh Valley Railroad right-of-way ... provided grantors have the power in law to grant such right-of-way, and subject to whatever rights the Lehigh Valley Ráilroad may have, if any, in said right-of-way ..." (Plaintiffs Exhibit No. 1).

      . On appeal, the Club maintains that the trial court erred in finding that the Bauers owned the disputed property in fee simple when the court made a finding of fact that the railroad had only a right of way over the land. The Club further argues that, as the trial court also found that the railroad abandoned the property, the right-of-way terminated and the railroad had nothing to convey to the Bauers by quitclaim deed. We do not agree with the Club’s reasoning. Initially, we note that because the Bauers have not appealed the award of a prescriptive easement to the Club, an award based on finding the property was abandoned by the railroad, the propriety of the trial court’s determination of abandonment is not before us. However, the trial court did find that the railroad was originally conveyed a right-of-way. In such a situation, upon abandonment by the railroad, the easement is extinguished and the land is owned in fee simple by the owner of the land on both sides of the right-of-way. Fleck v. Universal-Cyclops Steel Corp., 397 Pa. 648, 156 A.2d 832 (1959). The owners of both sides of the right-of-way in the present case are the Bauers, who are also successors in interest to Harrison and Waller, who apparently still owned the particular parcel in the late 1930’s. Thus, the trial court’s determination that the Bauers owned the disputed strip of land in fee simple is supported by the trial court’s factual findings. The Club’s claim to the contrary is, therefore, without merit.

      . Once again, we note that we cannot, as requested by the Bauers in their brief, reverse the award of the prescriptive easement since they did not appeal the trial court’s decision.

      . Testimony, however, was also presented to the effect that the Club had considered buying portions of the railroad bed from the railroad. It was explained that the Club thought it would be cheaper to pay the railroad a small amount of money for another section of the railroad bed, (not at issue in the case sub judice), rather than risk litigation in regard to ownership. This testimony indicates not only a recognition of a subservient interest in the railroad bed, but also that the railroad had not abandoned its right-of-way. See Pistner Bros., Inc. v. Agheli, 359 Pa.Super. 177, 518 A.2d 838 (1986) (claimant's offer to purchase property from true owner constitutes recognition that his title was subservient, breaking the required continuity of adverse possession).

      . This disposition is consistent with other cases that found that continuous use and improvements to land not owned by the claimant, but used to cross over to the claimant’s property, establishes a prescriptive easement. See e.g. Brouse v. Hauck, 330 Pa.Super. 58, 478 A.2d 1348 (1984) (use and maintenance of entire vacated road crossing over neighbor’s property, to gain access to entrance of barn and fields, was sufficient, if believed, to show a prescriptive right to use the disputed southern half of the vacated road for right-of-way purposes).
      The remaining claims raised by the Club require only brief comment. The Bauers claim, (albeit in vain, see n. 2, infra ), that the railroad had not abandoned the railroad bed. Thus, the Club’s claim that the Bauers failure to raise abandonment as an affirmative defense constituted waiver is meritless. While the Club’s claim that the trial court erred in refusing to permit a witness to respond to whether the description of the land in the Bauers' deed included the disputed railroad bed is of possible merit, we fail to see how this prejudiced the Club since the Bauers deed was admitted into evidence and the trial court could clearly recognize that the twelve foot roadway crossed the Bauers’ land.


source: Caselaw Access Project

author: BECK, Judge. DEL SOLE, Judge,

license: Public Domain

text:
    597 A.2d 671
    Cindy L. BLOOM and Howard M. Bloom, Appellants, v. DUBOIS REGIONAL MEDICAL CENTER, Dr. James K. Fugate, and Robert DiGilarmo.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1990.
    Filed Sept. 27, 1991.

      Rodney A. Beard, State College, for appellants.
    James M. Horne, State College, for appellee Fugate.
    Edward T.J. Graboski, Hollidaysburg, for appellee Dubois Regional.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   BECK, Judge.

This is an appeal from an order granting preliminary objections and dismissing some but not all of a multi-count complaint. The substantive issues on appeal raise challenging questions regarding the sufficiency of plaintiffs-appellants’ pleading. The first issue is whether appellants sufficiently pled gross negligence so as to fall within the exception to immunity provided to defendants-appellees by the Mental Health Procedures Act, Pa.Stat.Ann. tit. 50, § 7114(a) (Purdon Supp.1990). The second issue is whether a claim for negligent infliction of emotional distress is sufficiently pled where the plaintiff does not allege that he witnessed the negligence of the defendants, which consisted of a failure to act, but does allege that he witnessed the injurious results of defendants’ negligence.

Prior to addressing these questions, however, we must first examine whether or to what extent the order appealed from is final and appealable. Since the order dismissed only part of the complaint and did not dispose of the entire case, it is not a classic final order. We must determine whether the order is nevertheless to be considered final and appealable.

We begin with a presentation of the facts and somewhat confusing procedural history of this case. On October 24, 1986, plaintiff appellant Cindy Bloom was voluntarily admitted to the psychiatric unit of DuBois Regional Medical Center (the “Hospital”). The next evening, Mrs. Bloom’s husband (co-appellant) came to visit his wife. He found her hanging by the neck from shoestrings behind a bathroom door adjacent to her hospital room in an evident suicide attempt. Fortunately, Mrs. Bloom’s attempt failed. On October 21,* 1988, she and her husband instituted suit against the appellees, who are the Hospital, Robert DiGilarmo, the manager of the Hospital’s psychiatric unit, and Dr. James Fugate, a psychiatrist employed by the Hospital. Mr. and Mrs. Bloom sought to recover for injuries they allegedly sustained as a result of this incident.

The original complaint contained six counts. All were premised on the allegation that Mrs. Bloom had informed defendants of her mental disorder upon her admission and requested treatment. The complaint also alleged that defendants owed Mrs. Bloom a duty of care which they had breached. In the first count, Mrs. Bloom alleged that Dr. Fugate had been reckless, wanton, negligent and careless in his examination and treatment of Mrs. Bloom by failing adequately to test, diagnose and supervise her. In the second count, Mrs. Bloom made substantially the same allegations against the Hospital, and also alleged that the Hospital had failed properly to train and supervise its staff. In the third count, Mrs. Bloom asserted that Mr. DiGilarmo had failed to provide adequate supervision, procedures and staffing at the Hospital. In counts four and five, Mr. Bloom alone was the plaintiff. He sought recovery of damages for the emotional distress he suffered as a result of witnessing his wife hanging by the neck and for medical expenses and time he expended for treatment of his wife as a result of the incident. In count six, both plaintiffs joined in a claim for Mr. Bloom’s loss of consortium.

All three defendants filed answers with new matter in which they asserted the immunity provided to them by Section 7114(a) of the Mental Health Procedures Act, Pa.Stat.Ann. tit. 50, § 7114(a) (Purdon Supp.1990). Section 7114(a) provides:

In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care or leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or criminally liable for such decision or for any of its consequences.

Id.

The defendants’ assertion of immunity rested on the alleged failure of plaintiffs to plead either the gross negligence or willful misconduct required by Section 7114(a). All defendants also pleaded in new matter that appellant Mr. Bloom had failed to state a claim for negligent infliction of emotional distress. They alleged that Mr. Bloom’s pleading of this tort was deficient in that he had failed to allege that he had witnessed the negligent act or event, i.e., the failure of the defendants adequately to care for Mrs. Bloom, but rather had only viewed the “aftermath” of that negligence.

Apparently in response to defendants’ answers, plaintiffs sought leave of court to amend their complaint to add new allegations regarding the conduct of the defendants. The trial court granted permission to amend, but limited the extent of the amendments in the following memorandum:

In the original complaint [appellants] have plead [sic] “reckless, wanton, negligent and careless” acts on behalf of Defendants and in the prepared amended complaint they wish to characterize said conduct as gross negligence. This Court is satisfied that they have properly plead “reckless, wanton, negligent and careless” acts and the issue will no doubt become whether this rises to gross negligence. If it does not, this Court is satisfied that Plaintiffs cannot now change their cause of action to include gross negligence. If the original complaint satisfactorily pleads gross negligence, then an amendment is unnecessary. This Court will, however, permit Plaintiffs to file an amended complaint, but will restrict the amended complaint to defining the negligence of the Defendants as “reckless, wanton, negligent and careless.”

Thus, the trial court determined that if the original complaint did not sufficiently plead gross negligence, the complaint could not be supplemented to add the necessary allegations, presumably because the statute of limitations on appellants’ negligence claims had already expired. Although the court cited no precedent in support of this decision, it appears in essence to be a finding that to add allegations of gross negligence to a complaint already containing allegations of simple negligence would constitute the pleading of a new cause of action which is not permissible after the limitations period has passed. See Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978).

Appellants filed an amended complaint in which they supplemented the original allegations of wrongdoing by appellees. The amended complaint alleged that Dr. Fugate and the Hospital had a “special” duty of care toward Mrs. Bloom and that upon her admission she showed indications of “severe psychiatric and psychological disturbances, ... depression and paranoia” which created an “unreasonably high probability of self-destructive actions on her part.” The amended complaint also alleged in several new paragraphs that the defendants all knew or had reason to know that their actions in dealing with Mrs. Bloom created an unreasonably high probability of self-destructive harm for Mrs. Bloom and that all defendants acted in conscious disregard of this substantial risk. Finally, the amended complaint contained additional specific allegations of wrongdoing by defendants, including, inter alia, that the defendants had failed to obtain adequate information concerning Mrs. Bloom’s possibly suicidal condition on admission and had failed properly to medicate and clinically treat her.

All defendants immediately filed preliminary objections. Dr. Fugate demurred to all counts in which he was a named defendant, i.e., counts I, IV, V and VI. He argued that to the extent the amended complaint continued to plead simple negligence, he was immune, and that to the extent it attempted to plead gross negligence, this was a new cause of action barred by the statute of limitations. He also sought dismissal of Mr. Bloom’s emotional distress claim on the ground that it failed to plead that Mr. Bloom had witnessed the tortious act itself and that Mr. Bloom failed to plead that he had suffered physical injury as a result of his emotional distress. The Hospital and Mr. DiGilarmo both filed preliminary objections in the nature of a motion to strike. They sought to strike largely those portions of the complaint that had been added in the amendment, namely, those portions alleging conduct in conscious disregard of a substantial risk, on the ground that these averments could not be included in the amended complaint under the terms of the trial court’s order permitting the amendment and were beyond the statute of limitations.

In the order appealed from, the trial court granted Dr. Fugate’s demurrer and the Hospital and Mr. DiGilarmo’s motion to strike, dismissed Counts I, IV, V and VI in their entirety, and struck the portions of Counts II and III (against the Hospital and DiGilarmo alone) that had been added by the amendment. The result of this order is that Dr. Fugate has been completely dismissed from the case as to all claims by both plaintiffs. Moreover, Mr. Bloom has suffered the dismissal of all of his individual claims (including his claims for emotional distress, consortium and medical expenses) against the Hospital and DiGilarmo. Mrs. Bloom, on the other hand, has suffered the dismissal of all of her claims against Dr. Fugate but of only a portion of her claims against the Hospital and Mr. DiGilarmo, namely, those that were added by the amended complaint. All the claims that she asserted against these defendants in the original complaint remain.

Against this backdrop, we analyze the appealability of the trial court’s order. As to Mr. Bloom, the order on appeal disposed of the entire case. All counts in which Mr. Bloom was joined as a plaintiff have been dismissed and he is out of court as to all defendants. Thus, the order is a classic final and appealable order as to Mr. Bloom.

As to Mrs. Bloom, the answer is not as clear. Mrs. Bloom has been put out of court as to all of her claims against Dr. Fugate. Since an order dismissing a defendant is clearly final and appealable, Mrs. Bloom has a present right to appeal this aspect of the order. See Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) (en banc) and cases cited therein. However, Mrs. Bloom is still in court as to her original claims against the Hospital and Mr. DiGilarmo. She is out of court only to the extent that she has alleged in the amended complaint that these defendants knew or should have known of a substantial risk of harm and acted in conscious disregard of that risk. Our inquiry is whether the dismissal of these claims was a final appealable order.

This inquiry unfortunately leads us back to that troubling line of cases beginning with Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) (en banc), in which we have struggled to define an analysis which will enable us to determine whether an order dismissing some but not all of a plaintiffs claims against a particular defendant should be considered final. Praisner itself determined that such an order is final only if it dismissed a separate cause of action. However, this basic premise has been somewhat modified in a very recent quartet of cases decided by an en banc panel of this court. See Jenkins v. Hospital of the Medical College of Pennsylvania, 401 Pa.Super. 604, 585 A.2d 1091 (1991); Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990); Trackers Raceway, Inc. v. Comstock Agency, Inc., 400 Pa.Super. 432, 583 A.2d 1193 (1990); Garofolo v. Shah, 400 Pa.Super. 456, 583 A.2d 1205 (1990).

The fullest exposition of the finality issue is contained in the Motheral opinion. There, the court opined that the pivotal consideration in determining finality is “... whether the plaintiff aggrieved by it [the order] has, for purposes of the particular action, been put ‘out of court’ on all theories of recovery asserted against a given defendant for a given loss.” Motheral, 400 Pa.Super. at 412, 583 A.2d at 1184 (quoting Sweener v. First Baptist Church, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987)). The Motheral court also reiterated the distinction Praisner had drawn between the dismissal of a separate cause of action, which is final, and the dismissal of an alternate theory of relief, which is not. Id. In the former situation, the plaintiff has been denied any opportunity to recover for a given loss or harm he has suffered, whereas in the latter the plaintiff has been denied only one legal theory in support of recovery for that loss. Id. Application of this standard to the dismissal of some of Mrs. Bloom’s claims against the Hospital and Mr. DiGilarmo reveals that this portion of the order is not final and appealable. The order dismissed Mrs. Bloom’s claims that these defendants acted in conscious disregard of a substantial risk of harm. The order also dismissed certain of the specific allegations of wrongdoing which had been added by the amended complaint. The allegations that were stricken included the failure of these defendants to diagnose Mrs. Bloom’s mental problem, specifically insofar as she was allegedly suicidal, and the failure of these defendants to treat her in a clinically appropriate manner.

The refusal of the trial court to allow Mrs. Bloom to proceed on the theory that these defendants acted in conscious disregard of a substantial risk and on her more specific allegations of wrongdoing certainly did not put Mrs. Bloom out of court on all theories of recovery for a given loss. She is still most definitely in court on her original allegations of wrongdoing, all of which arise out of the same facts and allege the same general deficiencies in the manner in which defendants Hospital and DiGilarmo provided medical care to Mrs. Bloom. Moreover, she sought to recover for but one and the same loss in both the original complaint and the amended complaint and she is still in court on her attempt to recover for that loss. At the very most, one of her theories of recovery has been excised. This alone does not result in a final and appealable order that has in any way ended the litigation or put Mrs. Bloom out of court as to these defendants.

Thus, we conclude that our jurisdiction over this appeal is limited to a review of the following aspects of the trial court’s order:

1. the dismissal of Dr. Fugate from all counts of the complaint; and
2. the dismissal of Mr. Bloom’s claims, specifically including his claim for negligent infliction of emotional distress.

We begin with the dismissal of all counts pleaded against Dr. Fugate. The trial court’s reasoning in support of dismissal of these claims was in three parts. First, the court found that the original complaint pleaded facts that could only give rise to a finding of simple negligence and did not give rise to a claim that Dr. Fugate was guilty of gross negligence. Second, the court found that appellants could not file an amended complaint that added allegations that would sufficiently plead gross negligence because the addition of such allegations would constitute the pleading of “a new theory of recovery” past the statute of limitations. Finally, the court found that Dr. Fugate was immune from suit for simple negligence under Section 7114(a) of the Mental Health Procedures Act, quoted above.

Since we disagree with the first conclusion reached by the trial court, we must reverse its dismissal of Dr. Fugate. Clearly, as the trial court found and as appellants concede, Section 7114(a) would render Dr. Fugate immune from a suit for simple negligence arising out of his treatment of Mrs. Bloom. See note 1, supra. However, this is not a case where the immunity issue can be determined as a matter of law from the face of the complaint. Even without consideration of the content or propriety of the amended complaint, we find that the original complaint, sufficiently pleaded acts that could, upon further development of the facts and production of evidence, be found by a jury to constitute gross negligence.

Resolution of this issue depends upon defining the difference between ordinary negligence and gross negligence. We must ascertain the difference between these two levels of culpability because without doing so we cannot possibly determine whether the facts in appellants’ complaint succeeded in alleging the latter, presumably higher, level.

The Mental Health Procedures Act itself provides no definition of the phrase “gross negligence,” despite the fact that under Section 7114(a) the meaning of this phrase may well be determinative of whether a defendant is immune from suit. We have located no precedent expressly construing this phrase as used in the Act, nor have we found any other generally applicable statutory definition of the phrase. There are only two cases even remotely instructive on this question.

The first case is Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977). In Freach, wrongful death and survival actions were brought against the Commonwealth and several of its departments, agencies, officials and employees, including Farview State Hospital, its superintendent and several doctors employed there. The complaint alleged that these defendants released a Mr. Wright from Farview, where he had been committed pursuant to the Mental Health and Mental Retardation Act of 1966, Pa.Stat. Ann. tit. 50, § 4101 et seq. (Purdon 1969), despite his extensive violent criminal past. Mr. Wright subsequently murdered the two persons on whose behalf the wrongful death and survival actions were brought. The court held that these allegations sufficed to plead gross negligence under the Mental Health and Mental Retardation Act of 1966, which provides immunity for persons committing acts pursuant to that statute except where those acts constitute, inter alia, gross negligence or incompetence. The court did not directly opine on the meaning of the phrase gross negligence.

Similarly, in Farago v. Sacred Heart General Hospital, 552 Pa. 410, 562 A.2d 300 (1989), the court was confronted with an action in which a patient at the hospital alleged that she was raped by another patient as a result of the hospital’s inadequate supervision and protection. The trial court had instructed the jury that no liability could attach unless they found that the defendants had committed gross negligence because the defendants were immune from liability under Section 7114(a) of the Mental Health Procedures Act for all treatment decisions except those involving gross negligence or willful misconduct. The jury returned a verdict for the defendants. On appeal, plaintiffs contended that the hospital itself was not a protected person under Section 7114(a) and that general treatment decisions were not protected by the immunity of Section 7114(a). Therefore, plaintiffs alleged that all they had to prove to establish liability was ordinary negligence. The Supreme Court disagreed and affirmed the trial court. The court did not specifically opine on the rectitude of the jury’s conclusion that the pleaded acts of negligence did not rise to the level of gross negligence, as that issue was not before the court.

Since neither of the foregoing cases provide us with any real standards as to how to evaluate a complaint to determine if it must be dismissed for failing sufficiently to plead gross negligence, we turn to the common law for guidance on the meaning of the term gross negligence as used in the statute.

Attempts at distinguishing between negligence and gross negligence have resulted in distinctions that are vague and impractical. As the authors of perhaps the leading treatise on tort law point out:

Although the idea of “degrees of negligence” has not been without its advocates, it has been condemned by most writers, and, ... rejected at common law by most courts, as a distinction “vague and impracticable in [its] nature, so unfounded in principle,” that it adds only difficulty and confusion to the already nebulous and uncertain standards which must be given to the jury. The prevailing rule in most situations is that there are no “degrees” of care or negligence, as a matter of law; there are only different amounts of care, as a matter of fact. From this perspective, “gross” negligence is merely the same thing as ordinary negligence, “with the addition,” ... “of a vituperative epithet.”

Keeton, Prosser and Keeton on Torts, Ch. 5, § 34 at 210-11 (5th ed. 1984) (footnotes omitted).

Cases in Pennsylvania do not provide clear guidance. In Henry v. First Federal Savings & Loan Assoc., 313 Pa.Super. 128, 459 A.2d 772 (1983), a panel of this court noted that gross negligence was simply a different degree of negligence and both were premised on the violation of a duty of care owed to the plaintiff. Id., 313 Pa.Superior Ct. at 132, 459 A.2d at 774. In contrast, the Commonwealth Court defines gross negligence as failure to perform a duty in reckless disregard of the consequences or with such want of care as to justify a conclusion of willfulness or wantonness. Williams v. State Civil Service Comm., 9 Pa. Commw. 437, 443, 306 A.2d 419, 422 (1973), aff'd on other grds., 457 Pa. 470, 327 A.2d 70 (1974). On the other hand, the Supreme Court has opined on gross negligence in the context of a recent bailment case as follows: "... there are no degrees of negligence in Pennsylvania. There are and always have been differing standards of care, however, at least in bailment cases....” Ferrick Excavating v. Senger Trucking Co., 506 Pa. 181, 191, 484 A.2d 744, 749 (1984).

Although there has not been universal agreement as to the meaning of the term gross negligence, it is clear that the term does not encompass wanton or reckless behavior. As the Supreme Court has explained:

It must be understood, of course, that wanton misconduct is something different from negligence however gross,— different not merely in degree but in kind, and evincing a different state of mind on the part of the tortfeasor. Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.

Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943); see also Krivijanski v. Union Railroad Co., 357 Pa.Super. 196, 515 A.2d 933 (1986).

Having reviewed the prior case law, we are still without clear guidance as to what the legislature might have intended by its use of the term “gross negligence” in the Mental Health Procedures Act. Nowhere is the phrase defined either in the Act itself or in the generally applicable definitions in our statutory law. It appears that the legislature intended to require that liability be premised on facts indicating more egregiously deviant conduct than ordinary carelessness, inadvertence, laxity, or indifference. We hold that the legislature intended the term gross negligence to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.

Applying this definition of gross negligence to the original complaint filed by appellants, we conclude that the complaint can be construed to plead facts sufficient to give rise to a finding of gross negligence. The complaint alleged that the defendants, who held themselves out as competent to provide psychiatric treatment to one in the position of Mrs. Bloom, completely failed to diagnose her mental condition and treat her in a manner that would protect her from serious physical harm. It further averred that upon admission the defendants were informed of Mrs. Bloom’s mental disorder and nevertheless failed to take adequate precautions to assure her safety. These allegations encompass the potential of showing conduct on the part of the defendants that might be considered grossly negligent. Based on the complaint, it is not certain whether the plaintiffs can develop evidence that will demonstrate that the defendants’ failure was flagrant enough to be characterized as a gross deviation from the applicable standard of care.

We further note that the determination of whether an act or failure to act constitutes negligence, of any degree, in view of all the evidence has always been particularly committed to determination by a jury. Colloi v. Philadelphia Electric Co., 332 Pa.Super. 284, 481 A.2d 616 (1984); East Texas Motor Freight v. Lloyd, 335 Pa.Super. 464, 484 A.2d 797 (1984). It is an issue that may be removed from consideration by a jury and decided as a matter of law only where the case is entirely free from doubt and there is no possibility that a reasonable jury could find negligence. Id. In this case, the trial court not only prevented the issue of the proper characterization of the defendant’s conduct from going to a jury, but foreclosed plaintiffs-appellants from moving past the pleading stage of their ease. This was error. Thus, the dismissal of Dr. Fugate on immunity grounds at this stage of the case must be reversed.

We now proceed to the last issue requiring our review. Mr. Bloom’s count of negligent infliction of emotional distress was dismissed. The dismissal was based on the ground that he failed to allege that he had witnessed the negligent acts by defendants. Rather he only alleged that he witnessed the aftermath of those acts, i.e., his wife hanging by the neck. The trial court concluded that this failure rendered Mr. Bloom’s pleading of this cause of action fatally defective.

The parameters of the tort of negligent infliction of emotional distress have been difficult to define and the tort has undergone an evolutionary development. A history of the tort illustrates the difficult and multitudinous conceptual and policy problems it poses.

In an attempt to engender consistency, the courts of this Commonwealth have drawn artificial lines at different times to demark where liability will attach and where it will not. For example, until 1970 this Commonwealth continued to cling to the artificial requirement of physical impact, denying recovery for emotional distress unless the plaintiff had also been physically impacted as a result of the negligent act. See Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966). In Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), the impact rule was replaced by another line, commonly referred to as the zone of danger rule. Under this rule, plaintiff could not recover for emotional distress unless he or she was in jeopardy of physical impact from the negligent act and actually feared that such impact would result. Id. However, this rule also soon proved to be an unjustifiable means of limiting the potentially limitless liability that could be imposed for emotional distress suffered by persons other than those who are directly physically impacted as a result of a negligent act.

Recognizing the untenable nature of the zone of danger rule, in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the Supreme Court further expanded the group of persons who may recover for negligent infliction to include certain “bystanders” who are neither physically impacted nor within the zone of danger. The court enunciated the test of liability that presently governs in a negligent infliction of emotional distress action, holding that such a cause of action must be judged by the following criteria:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it;
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence;
(3) Whether plaintiff and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship.

Id., 486 Pa. at 170-71, 404 A.2d at 685 (quoting Dillon v. Legg, 68 Cal.2d 728, 740-41, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920 (1968)).

The Sinn test requires that we distinguish between those cases where liability should be allowed and those where it should not by focusing in part on whether the emotional distress results from the plaintiffs own contemporaneous observance as opposed to hearing about the event from someone else. This was clearly established in Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986). In Mazzagatti, the court rejected the claim of a mother whose daughter was fatally struck by an automobile. At the time of the accident, the mother was approximately one mile away from the scene, but when notified of the accident she immediately proceeded to the scene where she viewed her fatally injured daughter. The Supreme Court denied the mother recovery because it found that the driver of the automobile owed the mother no duty of care to protect her against the emotional distress she suffered when she viewed her injured daughter. Id., 512 Pa. at 278-79, 516 A.2d at 678-9. The court reasoned as follows:

... when a plaintiff is a distance away from the scene of the accident and learns of the accident from others after its occurrence rather than from a contemporaneous observance, the sum total of policy considerations weigh against the conclusion that that particular plaintiff is legally entitled to protection from the harm suffered.
We believe that where the close relative is not present at the scene of the accident, but instead learns of the accident from a third party, thé close relative’s prior knowledge of the injury to the victim serves as a buffer against the full impact of observing the accident scene. By contrast, the relative who contemporaneously observes the tortious conduct has no time span in which to brace his or her emotional system____ Hence, the critical element for establishing such liability is the contemporaneous observance of the injury to the close relative.

Id., 512 Pa. at 279, 516 A.2d at 679.

One might well question whether there is a sufficient “buffer” inherent in hearing from a third party that a terrible injury has been inflicted on a loved one and in seeing the horrible results of an accident but not the accident itself to justify denial of recovery for emotional distress suffered as a result thereof. Is it in fact legitimate to say that the emotional distress suffered when a person hears of an injury to a relative and then immediately proceeds to the scene and sees the injured relative is so much less foreseeable or so much less intense that recovery should be denied? Although these questions have thus far been answered in the affirmative by our Supreme Court, and therefore are not presently open to debate, it would appear that the Sinn/Mazzagatti standard itself creates a somewhat artificial line between liability and non-liability.

In applying the Sinn/Mazzagatti standard to this case, the precise question we must answer is — what must the plaintiff have observed? As the above-quoted language from Sinn reveals, the Sinn court required that the plaintiff observe the “accident.” See also Brooks v. Decker, 512 Pa. 365, 516 A.2d 1380 (1986). Panels of this court have variously phrased the observance requirement as requiring that the plaintiff have observed “the accident,” “the negligent act,” “the infliction of the negligent harm,” “the negligent event,” and the “traumatic event.” See, e.g., Neff v. Lasso, 382 Pa.Super. 487, 555 A.2d 1304, appeal denied, 523 Pa. 636, 637, 565 A.2d 445 (1989); Hackett v. United Airlines, 364 Pa.Super. 612, 528 A.2d 971 (1987); Holliday v. Beltz, 356 Pa.Super. 375, 514 A.2d 906 (1986).

The array of terminology used in describing what the plaintiff must have observed has resulted from the myriad of fact situations which give rise to the cause of action. The lack of uniformity in expressing the precise nature of the observance requirement, i.e., exactly what must be observed, has resulted from the fact that in the above-referenced cases there was no need for further refinement of this requirement. In those cases, commonly involving an automobile accident, the negligent act and the infliction of injury were substantially simultaneous. There was no division in time or space between the negligent act and the harmful result or infliction of injury and, therefore, if one was observed, the other necessarily was also. The plaintiff either alleged that she had observed both the negligent act and the occurrence of the injury, or had observed neither, since all occurred within the same short time span and in the same place. The precise parameters of the observance requirement becomes important in the instant case only because, unlike the prior cases which dealt with an affirmative and traumatic negligent act by the defendant and simultaneous injury, the instant case involves a failure to act on the part of the defendants and the injury occurred some time after the negligent act and as a direct result of Mrs. Bloom’s own intervening suicide attempt.

Because of these distinctions between this case and prior cases, the conclusion we reach in the instant case is not expressly dictated by existing precedent. Nevertheless, we find that the result that is most consistent with the Supreme Court’s view of this tort is to deny relief to Mr. Bloom. The gravamen of the observance requirement is clearly that the plaintiff in a negligent infliction ease must have observed the traumatic infliction of injury on his or her close relative at the hands of the defendant. The Supreme Court has drawn a line between cases involving observation of a traumatic event which has an immediate impact on the plaintiff and those not involving the observation of a traumatic event and where there is some separateness between the negligence of the defendant and its ultimate impact on the plaintiff. The court’s intent has clearly been to limit recovery for negligent infliction of emotional distress to those situations where the plaintiff suffers a direct harm of his or her own as a result of the defendant’s conduct, and to find that this harm has been experienced only where the plaintiff has been directly and traumatically impacted by the defendant’s tortious conduct. To recover the plaintiff must have observed the defendant traumatically inflicting the harm on the plaintiff’s relative, with no buffer of time or space to soften the blow.

This court has consistently followed the Supreme Court in so limiting recovery for negligent infliction. We have, for example, denied recovery to a plaintiff who allegedly experienced emotional distress in watching the slow progression of a horrible disease suffered by a close relative allegedly because of acts by the defendants which the plaintiff did not contemporaneously observe and which caused no single identifiable traumatic event that the plaintiff could observe. See Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). Similarly, we denied recovery to plaintiffs who watched the suffering of a relative who had allegedly been injured by acts of medical malpractice which the plaintiffs did not contemporaneously observe. Halliday v. Beltz, supra. In each such case, we have found a lack of a traumatic impact on the plaintiff resulting directly and contemporaneously from the observation of the traumatic infliction of injury on the plaintiff’s relative at the hands of the defendant.

In light of these considerations, we conclude that to allow recovery here would be to go beyond the parameters of liability that have been established both by the Supreme Court and this court. Mr. Bloom observed his wife in the aftermath of her own suicide attempt. He did not, however, observe any traumatic infliction of injury on his wife at the hands of the defendants because none occurred. The alleged negligence of defendants here is an omission and involved no direct and traumatic infliction of injury on Mrs. Bloom by defendants. Under these circumstances, we find that Mr. Bloom has not sufficiently pleaded a cause of action for negligent infliction of emotional distress since he has not pleaded the element of contemporaneous observance of traumatic infliction of injury by defendants.

We hasten to add, however, that we do not intend to fashion a rule that excludes recovery to all plaintiffs who allege negligent infliction based on their observance of a negligent omission by defendants. There are certainly circumstances where an omission might be construed as a traumatic infliction of injury on the plaintiffs relative and, if the plaintiff observed that occurrence, recovery could be had. Take, for example, the situation where a husband plaintiff seeks to admit his wife to an emergency room for medical care. Because of inaction by the emergency room personnel, the wife is left to languish in the outer office and expires there. Husband has viewed the entire event. The omission by the emergency room personnel in this scenario might create a sufficiently traumatic situation to be the basis for recovery for negligent infliction.

The order of the trial court is reversed in part and affirmed in part, consistent with this opinion. The counts of the complaint improperly dismissed are reinstated and the matter is remanded for further proceedings in accordance with this opinion. Jurisdiction is relinquished.

DEL SOLE, J., files a Concurring and Dissenting Opinion.

DEL SOLE, Judge,

concurring and dissenting.

I concur in the majority’s decision that Mrs. Bloom’s claims against the Hospital and Mr. DiGilarmo are not final and appealable. I write separately, however, because I believe that it is time to reexamine the case law that leads us to this result.

While the majority has correctly stated the prevailing line of cases from Praisner, 313 Pa.Super. 332, 459 A.2d 1255, to Motheral, 400 Pa.Super. 408, 583 A.2d 1180, concluding that the dismissal of an alternative theory of relief does not take the plaintiff out of court and hence is not final and appealable, I am not satisfied with this result. Instead, I favor the theory that once a court’s jurisdiction attaches for any purpose, it then attaches for all purposes. In the instant case, because the court has jurisdiction to hear Mr. Bloom’s claims and Mrs. Bloom’s claims against Dr. Fugate, the court would therefore have jurisdiction to hear all of Mrs. Bloom’s claims. This is analogous to the theory of pendent jurisdiction, on an appellate level. In the case of pendent jurisdiction, the plaintiff will have both federal and state claims against the defendant. Although the state claim may not independently be brought in federal court because of lack of diversity, the federal court has discretion to exercise pendent jurisdiction over the state claim if the two claims “derive from a common nucleus of operative fact” and are such that plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1968). Similarly, in the instant situation, the appellate court should have the discretion to hear all of Mrs. Bloom’s related claims when it agrees to hear any of them.

Generally, the rationale for the principle that an order is not final and appealable until the appellant is effectively out of court is that piecemeal litigation should be avoided in order to use the court’s resources most efficiently. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981). However, this policy also underlies my proposed approach to the instant situation. Here, the appellate court has agreed to hear some aspects of the trial court’s order. In order to avoid piecemeal litigation and act economically, the proper action would therefore be to hear all remaining aspects of the order at the same time. Because I find this to be the most sound judicial approach, I believe the time has come to reconsider this area of the law with an eye towards this change.

I respectfully dissent from that portion of the majority opinion which denies relief to Mr. Bloom for negligent infliction of emotional distress. The majority reaches its decision because Mr. Bloom never observed the negligent acts of defendants, despite the fact that he found his wife hanging by her neck in a suicide attempt. The negligent acts of defendants consisted of a failure to adequately test, diagnose and supervise Mrs. Bloom, and a failure to properly train and supervise the staff. If one were to follow the majority’s reasoning, Mr. Bloom’s mere presence when staffing and supervisory decisions were made would allow him to recover for negligent infliction of emotional distress, while viewing his wife hanging by a shoestring around her neck would not. This theory defies reason, for the observance of these seemingly neutral acts could not have inflicted the resultant harm. Such observance would not have added to the emotional distress suffered by Mr. Bloom. Only when Mr. Bloom encountered his wife’s hanging body did he suffer the emotional distress for which he now seeks recovery and it is. illogical to hold that observation of these negligent acts and omissions of defendants is the necessary element to a finding for Mr. Bloom. Because I believe that observation of defendant’s negligent acts is irrelevant in this case to a determination of Mr. Bloom’s claim for recovery of damages for emotional distress, I respectfully dissent.

      . We raise this question sua sponte since it implicates our jurisdiction over this appeal. See Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) (en banc).

      . This section has been interpreted to apply equally to hospital and individual defendants and to treatment decisions of the type at issue in this case. Farago v. Sacred Heart General Hospital, 522 Pa. 410, 562 A.2d 300 (1989).

      . We do not decide whether it would be permissible for plaintiffs to amend their complaint to plead gross negligence after the statute of limitations had passed since that is not the issue before us. Neither party has appealed the trial court's decision to allow a limited amendment. Rather, our entire focus is on whether the original complaint sufficiently pled gross negligence so as to avoid defendants' immunity defense.

      . Immunity from suit is an affirmative defense which must be pleaded in New Matter, not in preliminary objections. See Pa.R.C.P. 1030; Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985). However, where the defense is raised by preliminary objections and this procedure is not objected to, the question of immunity from suit may be decided. Freach v. Commonwealth, 471 Pa. 558, 565 n. 6, 370 A.2d 1163, 1166 n. 6 (1977).

      . We recognize that the trial court opinion in support of the order on appeal does state that the Hospital and Mr. DiGilarmo are immune from suit for ordinary negligence and that the original complaint against them alleged only ordinary negligence. We also recognize that when the trial court struck the allegations in the amended complaint which had been added by the amendment, thus restoring the complaint to its original state, it effectively left Mrs. Bloom only with allegations which the court found to be within the immunity provided to these defendants. Nevertheless, the order on appeal did not dismiss these claims on immunity grounds. We presume the court did not do so because the preliminary objections filed by these defendants, which the court was then deciding, did not request that the court dismiss the complaint on immunity grounds. Unlike Dr. Fugate, these defendants requested only that the amended portions of the complaint be struck and that is all the trial court gave them.

      . Section 7114(a) also provides an exception to immunity where the defendants are guilty of "willful misconduct.” This has been defined for immunity purposes as "conduct whereby the actor desired to bring about the result that followed or at least was aware that it was certain to follow, so that such desire can be implied." King v. Breach, 115 Pa.Commw. 355, 366-67, 540 A.2d 976, 981 (1988). In the instant case, appellants do not contend that appellees’ conduct was willful. Thus, appellees are immune from suit unless their conduct was grossly negligent.

      . We note that the trial court made no attempt to define the difference between these concepts. Instead, the court seemed to focus on whether the original complaint had labelled appellees' conduct as merely negligent or as grossly negligent. We disagree with this form of analysis, since the adequacy of the complaint must be judged by examination of the facts pled, and not of the conclusions of law that accompany them.

      . The trial court also completely dismissed Mr. Bloom’s claims for time and money he expended on medical treatment of his wife, and his claim for lack of consortium, contained in counts five and six, which had been pleaded against all defendants. The court did not state why it dismissed these claims by Mr. Bloom completely, as to all defendants, while only striking certain portions of Mrs. Bloom's claims against the Hospital and Mr. DiGilarmo. Perhaps the court thought that its conclusion on the immunity of Dr. Fugate also effectively precluded liability against the remaining defendants, since they too would eventually be determined to be immune and the complaint against them dismissed in its entirety. In any event, given our conclusion that immunity cannot be determined as a matter of law at this stage, it was error for the trial court to dismiss Mr. Bloom’s claims for medical expenses and loss of consortium and those counts should be reinstated on remand.

      . Appellees also argue that Mr. Bloom has failed to allege facts that are sufficient to plead intentional infliction of emotional distress. We do not read Mr. Bloom’s complaint as even attempting to raise such a claim, nor does he argue on appeal that he has pled such a claim. Nowhere is there an allegation of intentional misconduct by appellees, nor is there the required pleading of outrageous behavior that is central to this tort as defined in Restatement (Second) Torts § 46. Thus, we do not reach this issue.

      . In the thorough opinion authored by Judge Kelly in Neff v. Lasso, 382 Pa.Super. 487, 555 A.2d 1304 (1989), allocatur denied, 523 Pa. 636, 637, 565 A.2d 445 (1989), a similar attempt at refining the observation requirement was made. There, a panel of this court concluded that in a motor vehicle accident case Sinn did not require actual visual observation of the impact, but rather included cases where the relative visually observed events leading to the injury and then heard the actual impact causing the injury.


author: BECK, Judge:

text:
    597 A.2d 684
    Anita NEWMAN v. Steve NEWMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1991.
    Filed Oct. 1, 1991.

      Robert M. Davison, Bethlehem, for appellant.
    Judith A. Dexter, Bethlehem, for appellee.
    Before MONTEMURO, BECK and CERCONE, JJ.
   BECK, Judge:

The issue in this case is whether the enactment of the statewide child and spousal support guidelines constitutes a change of circumstance in and of itself so as to permit the trial court to consider modification of a prior support order. We hold that the enactment does not. Since the sole reason for the trial court’s reconsideration of the prior support order was the enactment of the guidelines, we reverse the trial court.

In considering whether the promulgation of the statewide support guidelines constitutes a material and substantial change of circumstances which alone can justify modification of an existing support order, we conclude the answer is clearly no. There is no indication, either in the text or accompanying comments to the guidelines, that they were intended to provide automatic justification to modify existing support orders. In fact, the guidelines themselves perpetuate the long-established criteria for seeking modification of an existing support order. Rule 1910.19 entitled Support. Modification. Termination provides: “(a) A petition for modification or termination of an existing support order shall specifically aver the reasons for the relief sought.” The explanatory comment accompanying the section elaborates that “Modification of a prior order requires a ‘material and substantial change in circumstances.’ This change of circumstances should be alleged specifically.” Nowhere in this provision is there evidenced an intent that the requirement of a material and substantial change of circumstances is satisfied by the mere fact of the guidelines themselves.

We think this is particularly true in light of the expressed intention by the formulators of the guidelines that they represent “a beginning” and that they shall be subject to “ongoing review”. It is inconceivable to us, absent explicit provision to the contrary, that every time revised guidelines are enacted, previously existing support orders will become modifiable as a result, without any showing that the circumstances of the parties involved have altered at all. Surely such a result would defeat the purpose of our long-standing prerequisite for modification which requires a showing of a change of circumstance. To adopt the trial court’s position would create instability and uncertainty. Parties are entitled to rely on the amounts of support they either receive or are responsible for unless and until their own circumstances change sufficiently to warrant modification. Likewise, courts should not be made continually to reassess appropriate levels of support unless the specific needs or circumstances of the parties necessitate changes.

In the instant case appellee-wife misapprehends the heart of the problem when she cites cases which, on remand, direct the trial court to apply the uniform state guidelines in determining the appropriate level of support. Had wife demonstrated a change of circumstances such that modification of the existing order was justified, then certainly the use of the guidelines would have been mandated in calculating the amount of support. In this case we hold merely that the enactment of the guidelines, without more, does not itself constitute the requisite change.

In a recent case, a panel of this court made clear just this distinction in its disposition of Keating v. Keating, 407 Pa.Super. 31, 595 A.2d 109 (1991). In Keating, we stated that “[t]he support guidelines must be considered in entering an original support order and in entering, as in the instant case, a modified order.” Id., 407 Pa.Superior Ct. at _, 595 A.2d at 113. However, the Keating court reiterated that a modification “is justified only when supported by clear and positive evidence after a hearing on the merits”. Id., 407 Pa.Superior Ct. at _, 595 A.2d at 115. Since, in Keating, the petitioner “did not meet her burden of proving that a material and substantial change in circumstances occurred” to justify modification, this court vacated the support order. Implicit in the Keating discussion is the notion that, had the propriety of modification been demonstrated on the record, the trial court would have been required to consider the guidelines in order to arrive at the appropriate support award.

A review of the record here clearly indicates that, other than the trial court’s mistaken acceptance of the guidelines themselves as a change in circumstances, no justification for modification was demonstrated. The progress of this case through the courts has been long and complicated. The facts relevant to this appeal are as follows. The husband filed a petition for special relief. In his petition for special relief husband offered to pay $113 and $34 weekly for two children and wife, respectively. Wife accepted this offer and therefore, on April 7, 1989, in accordance with the agreement of the parties the court entered its order.

About six months later on October 12, 1989, the wife petitioned the court for an increase based on an asserted “change in net amount of wages” and, in addition, on the fact that husband “is not making mortgage payments any more”. Although delayed many times, a conference was finally held before the Domestic Relations Hearing Officer on July 9, 1990. The hearing officer calculated the parties’ incomes based on husband’s 1989 income tax . return and wife’s wage certification. The hearing officer’s notes indicate that neither party submitted an income and expense statement, since each averred that there were no extraordinary expenses to consider. Based on the adjusted net incomes arrived at by the domestic relations accountant, the hearing officer calculated child and spousal support based on the uniform state support guidelines. On July 9, 1990, the court entered an order which adopted the hearing officer’s recommendation that support be set at $167.00 per week for two children and $129 per week for spouse pursuant to the guidelines. Husband sought a de novo hearing which was held on October 9, 1990.

At the hearing, the trial court heard testimony from the hearing officer, a former temporary tenant who had boarded a short time at wife’s house, and from husband and wife. The hearing officer presented, in conclusory form, the net income figures he had arrived at during the July 9 hearing. The former tenant testified to the amount of rent he paid wife to board at her house for a portion of 1990. Husband testified regarding the costs involved in maintaining his trucking business and regarding the proper characterization of various expenses as business-related. Wife testified that she had temporarily taken in a boarder in order to meet expenses. Further testimony was elicited from wife regarding her ability to maintain part-time employment given the fact that she is the custodial parent of small children.

We summarize the hearing evidence in order to emphasize what should be plain from our recitation of the testimony. No testimony was offered or heard which even arguably could support a finding that the parties’ circumstances had materially and substantially changed since the entry of the April 7, 1989 order from which modification was sought. Nothing in the record even attempted to compare the parties’ circumstances in April 1989 and in October 1989 when wife sought modification. Although wife’s initial petition to increase support was based on an alleged increase in husband’s income and a cessation of mortgage payments by husband, no evidence was introduced to allow the trial court to make such findings or to conclude that the increase or changes were material and substantial enough to sustain the requested modification. In fact, the trial court appeared to conclude that no change of circumstances had taken place. Nevertheless, the trial court found that modification was justified based on the enactment of the statewide support guidelines. Since we hold that this conclusion was erroneous, we vacate the support order.

In the instant case, wife did not present, and in fact the trial court did not find, any proof of an increase in expenditures for the children, a change in husband’s financial situation or any other facts which could demonstrate that the previous support order should be reconsidered. The sole factor justifying the increase in support cited by the trial court was the enactment of the statewide support guidelines which indicated a higher level of support than husband was obligated to pay under the previous order. This conclusion was reached without any reference to specific instances in which the previous order was insufficient to meet the particular needs of this family. Other than the intervening enactment of the support guidelines, the record establishes nothing indicating that the parties’ circumstances were materially different from those in April 1989.

We therefore find that appellee failed to substantiate that a material and substantial change in circumstances had occurred since the entry of the previous support award from which modification was sought. We further find that the promulgation of the support guidelines does not alone constitute a change in circumstances such as would justify modification.

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

      . Statewide child and spousal support guidelines are provided for in Pennsylvania Rules of Civil Procedure 1910.16-1 to 1910.16-5, effective September 30, 1989.

      . Pa.R.C.P. 1910.16-1, Explanatory Comment — 1989, Conclusion.

      . In a somewhat analogous case, this court found that the increase in the cost of living alone will not justify a modification in support awards. Commonwealth ex rel. Sladek v. Sladek, 386 Pa.Super. 490, 563 A.2d 172 (1989). In Sladek, we stated that “appellee’s conclusory declaration that an increase in support was necessitated by an increase in the cost of living over a two year period, without any reference to specific instances in which the increase in the cost of living has affected her expenditures in relation to her two children, is insufficient to establish the existence of a change in circumstances.” Id., 386 Pa.Superior Ct. at 495, 563 A.2d at 175. We think that Sladek clarifies what must be axiomatic in regard to modification of support awards, i.e. that "change in circumstances” must relate to the circumstances of the parties and their children, and not to a change which stems from an external, neutral factor such as an increase in the cost of living or the passage of time. See Forry v. Forry, 359 Pa.Super. 602, 604-05, 519 A.2d 516, 517 (although the mere passage of time does not in itself constitute a change of circumstances, a protracted period of time can be considered a factor if such passage affects the nature of the needs and expenditures of child and custodial parent).

      . One of the minor children at home being cared for by wife is a very young child not born of this marriage and whose support is not at issue.


author: CERCONE, Judge:

text:
    597 A.2d 687
    Maria TRZCINSKI, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 11, 1991.
    Filed Oct. 2, 1991.

      Daniel Kleiner, Philadelphia, for appellant.

      Christine M.M. Brenner, Philadelphia, for appellee.
    Before MONTEMURO, BECK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order granting appellee’s preliminary objections and dismissing appellant’s complaint for lack of proper service. For the reasons set forth below, we reverse in part the decision of the court of common pleas, and therefore vacate the order docketed December 6, 1990.

Plaintiff/appellant, Maria Trzcinski, was injured in a motor vehicle accident in October of 1989. She instituted the suit underlying this appeal in September of 1990 because defendant/appellee, Prudential Property and Casualty Insurance Company (“Prudential”) failed to pay certain first party medical bills she submitted. Appellant attempted to make service by delivering a copy of the complaint to Prudential, a foreign corporation, “c/o Adolphus Levi Williams, Jr., Esquire; 1101 Market Street, Room 1320; Philadelphia, PA.” When appellee did not respond to the complaint, appellant forwarded a Ten Day Notice of Intent to Take a Default Judgment to the same address, pursuant to Pa.R.C.P. 237.1, 42 Pa.C.S.A. Appellee responded to the Ten Day Notice by filing preliminary objections in the nature of a petition to strike which requested dismissal based upon allegations of improper service.

Upon due deliberation, the lower court granted Prudential’s preliminary objections and the instant timely appeal followed. Appellant now raises two issues for our consideration: (1) whether the lower court erred in dismissing the complaint based solely upon a finding of improper service; and (2) whether the lower court erred in making its finding of improper service where the affidavit of service itself plainly indicates that the complaint was properly served upon Prudential at a law office “wholly owned” by the defendant insurance company. We shall consider these questions in reverse order.

Our first inquiry is whether the lower court erred in determining that appellant’s complaint was improperly served. Both parties agree that the propriety of appellant’s attempt to serve process in the instant case is governed by Rule of Civil Procedure 424, which provides as follows:

Rule 424. Corporations and Similar Entities
Service of original process upon a corporation or similar entity shall be made by handing a copy to any of the following persons provided the person served is not a plaintiff in the action:
(1) an executive officer, partner or trustee of the corporation or similar entity, or
(2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or
(3) an agent authorized by the corporation or similar entity in writing to receive service of process for it.

Pa.R.C.P. No. 424, Pa. C.S.A. (emphasis added).

Appellant argues that service was valid under Rule 424 because her complaint was properly served upon the receptionist at a law firm which effectively functions as a “wholly owned subsidiary” of Prudential. In this vein, appellant alleges that the law firm of Adolphus Levi Williams, Jr. accepts work from no clients other than appellee. Appellant argues that the natural consequence of this fact is that the firm’s office location constitutes a “regular place of business” for Prudential within the meaning of Rule 424(2). According to appellant, if Mr. Williams’ offices are deemed to be a regular place of business for appellee, then the receptionist at the law offices must be viewed as an “other person for the time being in charge” of a “regular place of business” for Prudential. Under such circumstances, appellant argues, the receptionist’s acceptance of process for appellee would be proper under Rule 424(2). We cannot agree with this position.

Reduced to its most elemental component, due process requires that a defendant be given adequate notice that litigation has commenced. Romeo v. Looks, 369 Pa.Super. 608, 616, 535 A.2d 1101, 1105 (1987) (en banc), allocatur denied, 518 Pa. 642, 542 A.2d 1370 (1988). Our rules of civil procedure clearly permit a foreign corporation to be served either by mail or by hand delivery. Reichert v. TRW, Inc., 385 Pa.Super. 416, 561 A.2d 745 (1989), allocatur granted, 525 Pa. 664, 583 A.2d 794 (1990). However, contrary to appellant’s contentions, the correct inquiry to determine propriety of service under Rule 424 does not focus on. the location but rather on the identity of the individual served. Id., 385 Pa.Superior Ct. at 428, 561 A.2d at 750-51. While we are not prepared to say that a receptionist can never be deemed to be a “person for the time being in charge” of a regular place of business for a corporation for purposes of Rule 424(2), we find no indication that this is such a case. Appellant has cited no legal authority for the novel proposition that a law firm, no matter how limited its clientele, can be considered a “wholly owned subsidiary” of any client. More to the point, appellant has cited no authority for the proposition that a receptionist of a domestic law firm can be deemed ex officio a proper recipient of legal process for a foreign corporation. We therefore conclude that the lower court correctly found service to have been improper in the instant case.

Our inquiry does not stop at this point, however, because appellant also contends that the correct remedy for any instance of improper service is merely to strike the service but not to dismiss the complaint. Without conceding that appellee received improper service under Rule 424, appellant has argued that it was error for the lower court to dismiss her complaint. It is appellant’s position that the lower court should instead have stricken the service of process under Pa.R.C.P. No. 401(b)(2) and permitted her to re-serve the complaint on appellee. We agree.

The Committee Comments to the Pennsylvania Rules of Civil Procedure governing service of original process clearly indicate that Rules 400 through 441 have been amended and consolidated into a single chapter in order to facilitate the proper interpretation of each rule by placing it in proximity to pertinent related rules. See Explanatory Comment preceding Pa.R.C.P. No. 400, 42 Pa. C.S.A. In determining the correct remedy for failure to effectuate proper service, this court has already chosen to follow the course charted by the Committee by interpreting Rules 400 through 441 in pari materia. See, e.g., Reichert v. TRW, Inc., supra (explicating the interplay among Rules 404, 423 and 424); Fox v. Thompson, 377 Pa.Super. 39, 546 A.2d 1146 (1988) (discussing the interaction of Rules 401 and 402).

In Fox v. Thompson, supra, a panel of this court held that where the plaintiff did not make proper service under Rule 402, the trial court was not free to dismiss the underlying complaint on that basis alone. Id., 377 Pa.Super. at 44, 546 A.2d at 1148. Rather, the lower court was required to consider the effect of Rule 401(b)(2) which provides that a writ or complaint may be reinstated at any time and any number of times so long as the end of the limitations period has not been reached. Id. The Fox court held that when Rules 401 and 402 are read together, it is clear that a plaintiff’s failure to complete service does not affect his or her right to reinstate the complaint within the statutory term. Id., 377 Pa.Superior Ct. at 45, 546 A.2d at 1149. The panel therefore concluded that although the initial service was invalid, this fact did not render the complaint a nullity. Id. Hence the complaint should not have been dismissed simply because the service was unavailing. Id.

In the instant case, as in Fox v. Thompson, supra, the trial court found no procedural defects or irregularities in appellant’s complaint. Rather, the lower court found that proper service had not been effectuated. Applying the rationale of Fox to the instant case, we conclude that Rule 424 cannot be interpreted in isolation. As with improper service under Rule 402, Rule 401(b)(2) prohibits the dismissal of the complaint simply for want of proper service under Rule 424. Thus, upon determining that appellant had not effectuated proper service under Rule 424, the lower court should simply have stricken the service and not also dismissed the complaint. Accordingly, we vacate the order docketed December 6, 1990 and remand the case to the trial court for further proceedings.

Order vacated; case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

BECK, J., concurs in the result.

      . An order granting preliminary objections and dismissing a complaint is final and appealable because it effectively terminates the case. See generally Zamecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987), allocatur denied, 518 Pa. 643, 542 A.2d 1371 (1988).

      . The Committee Note following the rule indicates that substitute service upon a corporation or similar entity pursuant to Rule 402(a)(2) is not permitted by Rule 424.

      . Various means for service of process outside the Commonwealth are furnished by Pa.R.C.P. No. 404, 42 Pa.C.S.A. However, we are not concerned with these provisions because appellant elected to proceed instead under Rule 424.


text:
    597 A.2d 690
    COMMONWEALTH of Pennsylvania, v. Luis A. RIVERA, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1991.
    Filed Oct. 3, 1991.

      Dianne M. Dickson, Allentown, for appellant.
    A. Renee Smith, Asst. Dist. Atty., Allentown, for Com., appellee.

      Before MONTEMURO, BECK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Lehigh County on October 19, 1990. We affirm.

On January 14, 1988, appellant was charged with one count of recklessly endangering another person, one count of aggravated assault, and one count of crimes committed with a firearm. The charge of crimes committed with a firearm was dismissed prior to trial. After a jury trial, appellant was convicted of recklessly endangering another person, but was acquitted of the charge of aggravated assault. Appellant filed post-trial motions in arrest of judgment and for a new trial, which the trial court denied. This timely appeal followed.

Appellant raises the following issues for our consideration:

1. Did the Commonwealth fail to adduce evidence sufficient to support a finding a reckless endangerment beyond a reasonable doubt;
2. Did the court err in permitting the Commonwealth to introduce evidence of prior incidents involving the police and the Riveras [appellant and his wife, the victim];
3. Did the trial court err in affirming the Commonwealth’s point for charge number 3;
4. Did the trial court err in permitting Officers Kulp and Serbia to testify as to the content of conversations they had with unidentified passers-by;
5. Did the trial court err in permitting Detective Leh to offer a demonstration using his own personal weapon which was a different make and model from the weapon used on the night in question.

Appellant first argues that the evidence was insufficient to support the conviction of reckless endangerment. Specifically, appellant contends that he shot his wife accidentally and therefore, a conviction of reckless endangerment cannot be sustained. Our standard of review based on the sufficiency of the evidence is quite limited:

The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); accord Commonwealth v. Robinson, 316 Pa.Super. 152, 155, 462 A.2d 840, 841 (1983).

With our standard of review in mind, we must now look at the facts of this case. The incident from which the charges against appellant emanated occurred in appellant’s place of business, Rivera’s Bar. Appellant and the vietim/wife were in the bar on the night of January 13, 1988. The victim was concerned with a gun appellant had purchased to defend himself and his bar from criminal acts, and requested to see it. Appellant took the gun from its hiding place, placed it into the victim’s stomach, and the gun fired. Testimony of investigating officers revealed, that while poking the gun into his wife’s stomach, appellant stated, “Don’t joke with me because I have a gun.” The victim was wounded by the bullet fired from the gun. While various officers testified that the appellant told them he did not know the gun was loaded, Officer David Leh, of the Allentown Police Department testified that appellant admitted loading the gun with two or three bullets two weeks prior to the incident. Moreover, appellant told the officer he did not know how to operate the gun. N.T. 8/9/88 at 134.

The crime of recklessly endangering another person is defined as follows:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705. This court has previously had occasion to analyze the sufficiency of evidence necessary to sustain a conviction of reckless endangerment. In Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978), appellant was convicted of reckless endangerment when she pointed an unloaded BB gun at two police officers. We reversed her conviction holding that the mere pointing of an unloaded gun, without more does not constitute a violation of section 2705. Id., 261 Pa.Superior Ct. at 115 n. 11, 395 A.2d at 1340 n. 11. We reasoned that section 2705 requires the defendant to have actual present ability to inflict harm. Because Mrs. Trowbridge was utilizing an unloaded BB gun, we held there was no violation of section 2705.

In the present case, appellant knew the gun was loaded and pointed it directly into his wife’s stomach. He committed this act without any knowledge of how the gun operated, so that he might be able to protect his wife from being accidentally shot. We agree with the lower court which found appellant’s conduct grossly reckless and sufficient to convict him of the charge under section 2705.

In his brief, appellant argues that the prosecution wavered between whether his conduct was merely reckless or intentional. Thus, he had to refute the prosecution’s charge of “intentional endangerment.” He argues that both his testimony and that of his wife to the effect that the shooting was accidental precludes a conviction for reckless endangerment based on intentional conduct. This argument is specious. Even if the shooting itself had been accidental, appellant’s conduct in pointing the loaded gun at the victim while lacking knowledge to safeguard against possible misfires was sufficient to convict him of reckless endangerment, regardless of lack of intent to cause her harm.

Appellant next argues that the trial court failed to exclude evidence regarding prior incidents between appellant and his wife which required police intervention. Admissibility of evidence is a matter addressed to the sound discretion of the trial court, and an appellate court may only reverse upon a showing that the trial court abused its discretion. Commonwealth v. Claypool, 508 Pa. 198, 203-04, 495 A.2d 176, 178 (1985). The appellate courts in this Commonwealth have consistently held that

evidence of prior crimes and/or acts of violence are inadmissible merely to show the defendant’s propensity for violence or bad character____ However, evidence of prior crimes and violent acts may be admissible to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) common scheme or plan ...; or (5) to establish the identity of the person charged.

Commonwealth v. Banks, 513 Pa. 318, 349-50, 521 A.2d 1, 17 (1987) (citations omitted). The evidence which appellant argues was improperly admitted stems from incidents between appellant and his wife which compelled the police to intervene. The Commonwealth offered this evidence to demonstrate that the hostile relationship between appellant and his wife evidences appellant’s intent to shoot his wife. We find this evidence sufficiently falls within the enumerated exception to the rule prohibiting evidence of prior bad acts to show intent.

Appellant next contends that the trial court erred in charging the jury as to the elements of reckless endangerment since it did not comport with the current Pennsylvania law concerning reckless endangerment. In reviewing jury instructions for prejudicial and reversible error, the charge must be read and considered as a whole. Common wealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978). Error cannot be predicated on isolated excerpts; it is the general effect of the charge that controls. Id. If we conclude that the charge was erroneous, we will grant a new trial unless we determine the error to be harmless. Commonwealth v. Story, 476 Pa. 391, 405, 383 A.2d 155, 162 (1978). An error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless. Id., 476 Pa. at 405-06, 383 A.2d at 162. Whenever there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. Id., 476 Pa. at 409, 383 A.2d at 164. In addition, the trial court’s jury instruction will be upheld if it adequately and accurately reflects the law and is sufficient to guide the jury through its deliberations. Commonwealth v. Early, 377 Pa.Super. 219, 227, 546 A.2d 1236, 1240 (1988).

In the instant case, the lower court charged the jury as follows:

Recklessness and danger shall be presumed where a person knowingly points a loaded firearm at or in the direction of another.

N.T. 8/9/88 at 435. We find that the jury charge presented in this case constitutes error. The charge to the jury states that the jury must find recklessness and danger if it finds that appellant knowingly pointed a loaded gun at another person. In Trowbridge, supra, we held:

the crime of reckless endangerment requires (1) a mens rea — recklessness, (2) an actus reus — some “conduct,” (3) causation — “which places,” and (4) the achievement of a particular result — “danger,” to another person, of death or serious bodily injury.

Trowbridge, supra, 261 Pa.Super. at 115, 395 A.2d at 1340; 18 Pa.C.S.A. § 2705. Moreover, where the presumed fact comprises an element of the crime charged, the inference authorized by a presumption can never be compelled by the court. Commonwealth v. DiFrancesco, 458 Pa. 188, 193 n. 3, 329 A.2d 204, 207-08 n. 3 (1974). The instruction given by the trial court, without more, required the jury to find appellant guilty if he knowingly pointed a loaded gun at another person. The effect of the charge is to mandate the jury to find that the particular conduct (i.e., knowingly pointing a loaded gun at another) is always committed recklessly. Section 2705, however, states that the conduct must be committed recklessly. Thus, the charge as given, presumes the element of recklessness and danger. It is solely within the province of the jury to find all the elements of the crime present beyond a reasonable doubt.

The Commonwealth urges us to interpret Trowbridge, as holding that recklessness and danger shall be presumed if the defendant knowingly points a loaded gun at another. In contrast, our decision in Trowbridge holds that the legislature, in enacting section 2705, did not intend that the mere pointing of an unloaded weapon should give rise to criminal liability. Id., 261 Pa.Super. at 116, 395 A.2d at 1341 (emphasis added). While knowingly pointing a loaded weapon at another person may be sufficient to convict a defendant for reckless endangerment, we cannot say that such a result is always mandated, as the trial judge instructed in this case. It is the function of the jury to make the ultimate determination.

Despite our finding that the charge was given in error, we nevertheless find that the error was harmless. The charge taken as a whole demonstrates that the jury was obligated to find each element of the crime beyond a reasonable doubt. Further, the jury had before it overwhelming evidence that appellant’s conduct was reckless. As we stated above, appellant jokingly pointed a loaded gun at his wife without knowing how the gun operated. The recklessness is demonstrated by his inability to take proper precautions while pointing the gun to ensure it wouldn’t misfire.

Appellant next contends that the trial court erred in permitting the attending police officers to testify to conversations between themselves and strangers who apprised them of a fight in appellant’s bar. In Commonwealth v. Underwood, 347 Pa.Super. 256, 500 A.2d 820 (1985), we adequately addressed the issue presented here. In Underwood, the appellant argued that statements of two young adults to police officers that “the man running had just robbed somebody,” were hearsay statements and therefore inadmissible. We held:

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is generally inadmissible as evidence because the competency and veracity of the original speaker are not subject to examination____ It is well settled, however, that an out-of-court statement offered to explain a course of conduct is not hearsay. This court has repeatedly upheld the introduction of out-of-court statements for the purpose of showing that based on information contained in the statements, the police followed a certain course of conduct that led to the defendant’s arrest.

Id., 347 Pa.Superior Ct. at 259-60, 500 A.2d at 822 (citations omitted). Instantly, the police offered evidence that two strangers told Officers Kulp and Serbia that a fight was occurring at Rivera’s bar. This evidence explained to the jury why they entered the bar. The evidence was not offered to prove that a fight had transpired. Therefore, the evidence was admissible as non-hearsay.

In his final issue, appellant argues that the trial court erred in allowing Detective Leh of the Allentown Police Department to explain to the jury how a .380 caliber pistol, such as the one appellant utilized, is loaded. Appellant objects on the grounds that Detective Leh demonstrated with a Bernadelli .380 caliber pistol, which was a different make and model from his weapon. He argues that because the guns were sufficiently dissimilar, the demonstration was improper. We disagree.

In Commonwealth v. McAndrews, 494 Pa. 157, 430 A.2d 1165 (1981), our supreme court had occasion to address this issue. In that case, appellant, who was on trial for murder, objected to the the admission of a similar weapon to illustrate the testimony of the Commonwealth’s ballistics expert. The trial court suppressed the actual murder weapon as fruit of a constitutionally infirm statement appellant gave to police. Id., 494 Pa. at 161-62, 430 A.2d at 1166-67. The court held that the demonstration of a similar weapon was proper where it was used solely to illustrate the expert’s relevant testimony. Id.

Instantly, the Commonwealth offered the testimony of Detective Leh to demonstrate how to load and fire a .380 caliber semi-automatic pistol. He used a Bernadelli pistol instead of the Berretta appellant owned. The witness explained that the two pistols loaded similarly and were different only in location of one of the safety catches. Appellant elicited testimony that different sears, or gunlock catches, on each gun might cause the guns to fire differently. The Commonwealth offered the evidence to show that appellant knew how to load and fire the gun, and was offered to rebut appellant’s contention that the gun fired accidentally. The trial judge specifically limited Detective Leh's testimony to the proper method for loading the weapon and the path of a bullet into the firing chamber. He excluded testimony on the ease of firing the gun. We find that Detective Leh adequately demonstrated that the two weapons were sufficiently similar for purposes of this demonstration. The demonstration was therefore appropriate under McAndrews, supra.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2705.

      . Id. § 2702.

      . Id. § 6103.

      . Moreover, we find that the prosecutor’s apparent vacillation over whether appellant’s conduct was intentional or reckless was conduct consistent with her attempt to prove both the charges of aggravated assault and reckless endangerment.

      . Regardless of our finding, we fail to see how appellant was prejudiced by this evidence. The Commonwealth proffered the evidence to show that appellant intentionally shot his wife. However, appellant was acquitted of the charge of aggravated assault. That was the only charge for which this evidence was relevant.

      . The police were unable to locate appellant’s weapon after the shooting occurred.